Balfour Q. H. Der

The appellant appealed a unanimous decision of the Alberta Court of Appeal that set aside a trial acquittal on one count of sexual assault and substituted a conviction pursuant to s. 686(4)(b)(ii) of the Criminal Code.

The trial judge had erred in law both by admitting evidence of the complainant's prior sexual activity and by finding an air of reality to the defence of honest but mistaken belief in communicated consent.

The Supreme Court dismissed the appeal, holding that the defence had no air of reality and the prior sexual activity evidence was inadmissible, such that the Court of Appeal properly substituted a conviction.

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held that the trial judge erred in law by failing to address the scope of the complainant's consent and whether it was withdrawn, making the trial judge's credibility findings on subjective consent undeserving of deference.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sexual activity with the complainant after she cried out 'No' without taking steps to ascertain whether consent was withdrawn.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.

Two appellants were convicted by jury of second degree murder for their participation in a group assault in which the victim was beaten and stabbed to death.

The Alberta Court of Appeal upheld the convictions, finding no reviewable error in the jury charge and that the verdicts were not unreasonable.

The Supreme Court of Canada dismissed the appeals substantially for the reasons of the Chief Justice of the Court of Appeal, agreeing that the jury charge adequately addressed the various paths to liability — including principal and co-principal liability — and that the verdicts were not unreasonable.

The Court added, however, that a finding of unreasonable verdict is itself an error of law justifying appellate intervention, and that an extricable error need not first be identified as a precondition.