Andrea L. Serink

Two appellants were convicted of sexual assault by the Court of Appeal for Alberta after having been acquitted at trial, where the trial judge had applied an impermissible principle of broad advance consent.

The Supreme Court held that the trial judge erred in law by failing to address the scope of the complainant's consent and whether it was withdrawn, making the trial judge's credibility findings on subjective consent undeserving of deference.

The Court upheld the substituted convictions under s. 686(4)(b)(ii) of the Criminal Code, finding the Cassidy test satisfied because the trial judge's explicit and implicit findings established both appellants continued sexual activity with the complainant after she cried out 'No' without taking steps to ascertain whether consent was withdrawn.

The Kienapple argument raised by one appellant was rejected as the offences involved different subsets of facts and addressed different forms of harm.

The appellant was convicted of obstructing justice after attending the complainant's home uninvited to discuss the process for withdrawing criminal harassment charges she had recently laid against him.

The trial judge found the appellant's conduct was wilful and constituted an attempt to dissuade the complainant from giving evidence by corrupt means.

A majority of the Court of Appeal affirmed the conviction, and a majority of the Supreme Court dismissed the appeal, substantially for the reasons of the Court of Appeal majority.

The majority held that the record clearly supported the inference that the appellant applied pressure on the complainant to manipulate her into dropping the charges.

Côté J. dissented, finding no evidence that the appellant used threats, bribes, or other corrupt means as required by s. 139(3) of the Criminal Code.

The appellant was convicted of sexual assault at trial following proceedings in Alberta.

On appeal to the Supreme Court of Canada, the appellant argued that the trial judge engaged in stereotypical reasoning in assessing the accused's evidence and erred by failing to conduct a voir dire under s. 276 of the Criminal Code regarding the complainant's evidence of a past sexual relationship with the appellant.

A majority of the Court held that the trial judge did not engage in stereotypical reasoning, and that any inferential error was harmless in light of the reasons as a whole.

The majority further held that the failure to conduct a s. 276 voir dire did not give rise to a substantial wrong or miscarriage of justice.

The appeal was dismissed, with Côté J. dissenting on the ground that the curative proviso should not have been applied.

The Court considered the legal meaning of the phrase "her mind is then disturbed" in the infanticide provision of the Criminal Code.

It held that the phrase carries its ordinary meaning, does not require proof of a defined mental disorder, and sets a broad, flexible standard tied to childbirth or lactation effects at the time of the act.

Applying that standard, the Court found no reversible legal error in the trial judge's approach and upheld the infanticide verdicts and acquittals on murder counts.

The Crown's appeal was dismissed.