B. Kelneck

The appellant appealed convictions for sexual interference and sexual assault arising from an incident where he showered with a child after a sand fight at a campground.

The appellant argued the verdict was unreasonable and that the trial judge failed to properly apply the analysis from R. v. W.(D.) when assessing conflicting evidence.

The Superior Court found the trial judge improperly equated disbelief of the accused’s testimony with proof of guilt and failed to conduct the full three‑step W.D. analysis regarding the essential elements of the offences, including the sexual purpose of any touching.

The court also found the evidence of a sexual component to the touching was insufficient and that the verdict relied on speculation rather than proof beyond a reasonable doubt.

The convictions were therefore set aside and acquittals entered.

The applicants challenged the constitutionality of amendments to section 737 of the Criminal Code that removed judicial discretion and made the victim surcharge mandatory.

The court found that the mandatory imposition of the surcharge, where no fine is imposed, violates section 7 of the Charter by negatively impacting security of the person.

The removal of judicial discretion was found to be arbitrary, overreaching, and grossly disproportionate to the legislative goal of increasing offenders' accountability to victims.

The violation could not be justified under section 1 of the Charter.

The court declared the mandatory surcharge provisions to be of no force and effect.