Ami Kotler

The appellant Crown appealed acquittals entered after a criminal prosecution for aggravated sexual assault based on non-disclosure of HIV-positive status.

The Court reaffirmed that fraud vitiating consent under ss. 265(3)(c) and 273 requires a dishonest act and deprivation, and held that deprivation turns on whether there was a realistic possibility of HIV transmission.

The Court held that, on the record, a realistic possibility is negated where the accused had a low viral load and condom protection was used.

Applying that test, the Court restored three convictions where no condom was used and maintained one acquittal where condom use accompanied a low viral load.

The appeal was allowed in part.

In a criminal appeal from Manitoba, the appellant challenged a first degree murder conviction involving murder while committing sexual assault, arguing deficiencies in the jury charge.

The Court held that the trial judge adequately related the evidence to the offence elements and that the charge, read as a whole, properly explained the live issues and the defence theory.

The Court further held that a trial judge need not present speculative, fanciful, or far-fetched factual scenarios not advanced by counsel.

The appeal was dismissed, adopting the majority reasons of the provincial appellate court.

The accused was convicted of manslaughter at trial.

The Court of Appeal set aside the conviction and ordered a new trial, finding the trial judge misapprehended evidence regarding a planned robbery and relied on this to infer the accused's presence at the crime scene.

The Court of Appeal partially based its decision on R. v. Beaudry.

The Supreme Court of Canada allowed the Crown's appeal and restored the conviction.

The majority held that Beaudry does not apply to mistakes as to the substance of evidence, which are governed by R. v. Lohrer.

Furthermore, the majority found the trial judge did not misapprehend the evidence, as she did not rely on the existence of a planned robbery to infer the accused's presence at the scene.

The Supreme Court of Canada considered whether general deterrence is a principle of sentencing under the Youth Criminal Justice Act (YCJA).

The Court held that the YCJA introduced a new sentencing regime that deliberately excluded general deterrence as a factor in youth sentencing.

The Court also held that section 42(2)(o) of the YCJA does not require a sentencing judge to impose at least two-thirds of a sentence in custody and one-third under supervision, granting the judge discretion to determine the appropriate length of the custody and supervision portions.

Both appeals were dismissed.

The accused was stopped by police and refused a roadside demand for a breath sample.

He was arrested and taken to the police station, where over an hour later he provided a sample after speaking with counsel.

The Supreme Court of Canada held that the sample was not provided 'forthwith' as required by section 254(2) of the Criminal Code.

The delayed compliance could not be considered a response to the initial roadside demand, and the subsequent demand at the station was invalid.

The appeal by the Crown was dismissed.