A. M. Morris

The defendant, Thomas Nsiah, was charged with possession of cocaine and fentanyl for trafficking and possession of property obtained by crime.

The court found that a strip search conducted by police at the detachment violated the defendant's section 8 Charter rights, as it was unreasonable and unauthorized, lacking proper grounds or procedure.

Applying the Grant analysis, the court excluded the drug evidence obtained from the vehicle.

In the alternative, the court found that the Crown failed to prove beyond a reasonable doubt that the defendant had knowledge and control of the concealed drugs, given the lack of forensic evidence linking him to the hidden compartment and the vehicle's non-ownership by the defendant.

The Crown appealed acquittals on impaired operation and over-80 charges arising from a roadside stop involving swerving, indicia of alcohol consumption, and later breath readings of 140 mg.

The appeal court held that the trial judge reasonably found the respondent had clearly waived the right to counsel, and that the police-created delay in arranging an unnecessary duty counsel call meant the breath samples were not taken as soon as practicable under s. 258(1)(c)(ii) of the Criminal Code.

The certificate evidence was therefore properly excluded.

On the impaired operation count, the court held the acquittal was reasonably supported by the evidence, given the limited bad driving and minimal indicia of impairment.

The accused was charged with sexual assault and assault against his girlfriend.

The central issue was consent, with the complainant testifying she was forced into sexual intercourse while menstruating, a practice she found unacceptable, while the accused claimed the encounter was consensual.

Following the sexual encounter, a physical altercation occurred over text messages.

The court applied the W.(D.) framework to assess credibility, finding the complainant to be a highly credible witness and the accused's testimony to be inconsistent and fabricated.

The accused was found guilty on both counts.

In a judge-alone criminal trial for sexual assault and common assault, the court addressed a potential breach of the rule in Browne v. Dunn after the defence introduced contradictory evidence without cross-examining the complainant on key matters.

The judge reviewed governing authorities regarding the obligation to confront witnesses with allegations that contradict their testimony and the discretionary remedies available where the rule is breached.

The defence acknowledged that certain material inconsistencies had not been put to the complainant during cross-examination.

Considering fairness to the witness and the integrity of the fact‑finding process, the court determined that recalling the complainant for limited additional cross-examination was the appropriate remedy.

The accused applied under s. 276 of the Criminal Code to admit evidence of prior sexual activity with the complainant in a sexual assault prosecution.

The defence sought to introduce two prior incidents of consensual sexual intercourse occurring while the complainant was menstruating, arguing the evidence was relevant to rebut the complainant’s assertion that she would not have consensual intercourse during her menstrual period.

The Crown opposed the application, submitting the evidence lacked sufficient connection to the defence and risked engaging impermissible inferences.

The court held that the proposed evidence was not tendered to support the twin myths but rather to contradict a specific premise advanced by the complainant as the basis for non-consent.

Finding the evidence had significant probative value not substantially outweighed by prejudice under s. 276(3), the court permitted the defence to introduce the evidence.