Anne-Marie McElroy

The Crown appealed the acquittal of H.E. on a charge of sexual assault against his wife.

The trial judge had accepted the complainant's testimony regarding the assault but acquitted the accused based on a reasonable doubt about whether he possessed the required mens rea, citing factors including the complainant's delay in reporting and continued sexual relations with the accused.

The appellate court found that the trial judge committed reversible errors by considering an honest but mistaken belief in consent defence that was not raised at trial, by relying on a shared mistaken belief about marital rights that cannot form the basis for such a defence, and by considering factors that were irrelevant to the accused's state of mind.

The court allowed the appeal, set aside the acquittal, and ordered a new trial.

The applicants sought disclosure of the complete investigative file relating to a homicide investigation that formed the basis for wiretap authorizations under Part VI of the Criminal Code.

The Crown resisted disclosure, arguing that materials not explicitly relied upon in the Information to Obtain were irrelevant and protected by public interest privilege.

The court held that the accused's right to make full answer and defence applies to pre-trial evidentiary hearings, including Garofoli applications.

The court established that materials in the "investigative file" are presumptively relevant and should be disclosed, defined as all materials accumulated by the investigating agency as a consequence of its investigative efforts in the investigation giving rise to the authorization itself.

The court ordered disclosure of specified materials from the homicide investigation file, subject to redactions protecting informer privilege, while declining to order disclosure of the entire investigative file to prevent needless complexity.

The accused was charged with impaired care or control and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg/100ml.

The accused brought a Charter application alleging violations of sections 8 and 9 of the Canadian Charter of Rights and Freedoms, challenging the validity of the Approved Screening Device demand and seeking exclusion of breath readings.

The court found that the officer had articulable cause to investigate the accused based on common law powers, that the officer had reasonable grounds to suspect alcohol consumption based on the totality of circumstances, and that the ASD demand was validly made forthwith.

The court dismissed the Charter application, admitted the breath evidence, and found the accused guilty of the "over 80" offence while acquitting on the impaired care or control charge due to insufficient evidence.

The accused was convicted after trial of two counts of sexual assault arising from incidents involving non-consensual touching of a cognitively delayed adult woman during a social gathering.

The court considered aggravating factors including the complainant’s vulnerability, the offender’s prior sexual assault conviction, and intoxication at the time of the offence.

Mitigating factors included the relatively low level of physical intrusion, partial acceptance of responsibility, mental health issues, and a low to moderate assessed risk of reoffending if sober.

Applying the sentencing objectives of denunciation and deterrence under the Criminal Code, the court imposed a custodial sentence followed by probation and several ancillary orders.

The sentence also included treatment conditions, a firearms prohibition, a DNA order, and registration under the national sex offender registry.

The accused was charged with two counts of sexual assault against a cognitively delayed adult complainant.

The incidents allegedly occurred in the bathroom and kitchen of an apartment where both were guests.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's testimony as implausible and inconsistent.

Despite some inconsistencies in the complainant's evidence, the court found the core allegations corroborated by a witness and the accused's own admissions of uninvited touching.

The accused was found guilty on both counts.

The accused was charged with two counts of sexual assault against a cognitively delayed adult complainant.

The incidents allegedly occurred in the bathroom and kitchen of a relative's apartment.

The accused denied the allegations, claiming the complainant initiated contact and he only pinched her bottom.

Applying the W.(D.) framework, the court rejected the accused's evidence as not credible and found the testimony of the complainant and an eyewitness reliable despite minor inconsistencies.

The accused was found guilty on both counts.