Alison Hurst

The appellant appealed convictions for break and enter, breaking out of a house, and failure to comply, as well as a three-year sentence.

The court held that the trial judge did not err in declining to exclude shoe evidence seized in breach of s. 8 of the Charter, emphasizing the deference owed to a trial judge’s s. 24(2) determination.

The court also rejected the unreasonable verdict argument because the eyewitness testimony was supported by footprint evidence and injuries consistent with the intruder’s escape.

The sentence appeal was dismissed after the court found no failure to consider the appellant’s background as an aboriginal offender and held the sentence fit given the criminal record.

The appellant appealed convictions for sexual assault and sexual touching involving a 12-year-old complainant arising from a single alleged incident.

The Court of Appeal held that the trial judge made several errors in evaluating credibility in a case turning centrally on whether the allegation was true or fabricated to explain romantic and sexual fantasy writings discovered by the complainant’s mother.

The court found error in the unsupported inference concerning the appellant’s alleged sterility, concern over the treatment of the medical evidence and defence theory, failure to address a significant prior inconsistent statement, and a misapprehension of comparative evidence about the events when the mother returned home.

The cumulative effect of those errors undermined confidence in the verdict and required a new trial.

The appellant sought leave to appeal sentence for a very serious aggravated assault, arguing the sentence was excessive, that insufficient weight was given to the absence of prior incarceration, and that the delayed parole eligibility order was unwarranted.

The court held that long-term incarceration for public protection was the only realistic option in light of the appellant’s major mental disorder, violent record, and limited rehabilitative prospects.

Although the trial judge was mistaken about the maximum sentence for aggravated assault, the Court of Appeal found no error in principle and no clearly excessive sentence.

Leave to appeal was granted, but the sentence appeal was dismissed, including the order delaying parole eligibility until half the sentence had been served.

The appellant sought leave to appeal from a summary conviction appeal decision upholding a sexual assault conviction.

The only issue was whether the defence should have been permitted to cross-examine the complainant about a prior sexual assault complaint made against another person.

Applying the rule that such collateral cross-examination is unavailable absent proof that the earlier complaint was recanted or demonstrably false, the court held the summary conviction appeal judge correctly found no basis to interfere.

Leave to appeal was granted, but the appeal was dismissed.