The accused was charged with first degree murder in the death of an Indigenous woman and sex worker found dead in his hotel room with an 11 cm wound in her vaginal wall.
At trial, the accused testified at length about prior sexual activity with the deceased without having made an application under the s. 276 regime of the Criminal Code, and the jury was not given any limiting instruction on the permissible uses of that evidence.
The jury acquitted the accused of both first degree murder and the included offence of unlawful act manslaughter.
The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial on first degree murder.
The majority of the Supreme Court held that the trial judge erred by failing to comply with the mandatory s. 276 regime, and that the resulting failure to inoculate the jury against mistakes of law related to the defence of honest but mistaken belief in communicated consent warranted a new trial on unlawful act manslaughter.
However, a new trial on first degree murder was not warranted as the errors did not materially bear on the murder acquittal, which turned on a battle of expert evidence on whether a sharp object was used.
The dissent would have upheld the Court of Appeal's order of a new trial on both murder and manslaughter.
