B. Linley

The accused applied under s. 276.1 of the Criminal Code for permission to adduce evidence of prior sexual activity with the complainant in a pending jury trial for sexual assault and related assault charges.

The defence argued the evidence was relevant to consent and honest but mistaken belief in consent.

The court held the accused failed to establish that the proposed evidence related to specific instances of sexual activity and failed to demonstrate that its probative value outweighed the risk of prejudice to the proper administration of justice under s. 276(2).

The judge found the proposed evidence risked inviting impermissible reasoning that prior sexual activity made consent more likely.

The application was dismissed.

The accused was convicted after trial of sexual assault contrary to s. 271 of the Criminal Code for kissing and groping the complainant at a Royal Canadian Legion branch.

At sentencing, the court considered the offender’s advanced age, lack of prior criminal record, health issues, and military service history, alongside the significant emotional and financial impact on the complainant reflected in a victim impact statement.

The court emphasized denunciation and general deterrence as primary sentencing principles under s. 718 of the Criminal Code but concluded that a custodial sentence was not necessary in the circumstances.

The court imposed a non‑custodial sentence consisting of 24 months’ probation with multiple conditions, a 20‑year Sex Offender Registry order, a primary DNA order, a five‑year firearms prohibition, community service, and the statutory victim fine surcharge.

The accused brought a Rowbotham application seeking an order requiring the state to fund legal representation for sentencing and related applications after his Legal Aid certificate was cancelled following conviction by a jury.

The court applied the three-part test requiring proof that legal aid was refused, that representation was essential to a fair proceeding, and that the accused lacked the means to retain counsel.

Although the court accepted that the certificate cancellation constituted a refusal of legal aid, it found the accused remained represented by counsel of record and therefore failed to establish that funded counsel was essential to ensure a fair sentencing.

The court further held the accused did not demonstrate on a balance of probabilities that he lacked the means to retain counsel, noting the absence of efforts to appeal the certificate cancellation or retain private counsel.

The Rowbotham application was dismissed.

The accused was charged with sexual assault contrary to s. 271 of the Criminal Code after a workplace encounter involving a non-consensual French kiss and touching of the complainant’s breast.

The defence argued honest but mistaken belief in consent based on earlier social contact and alleged reactions by the complainant.

The court applied the principles from Ewanchuk and J.A. and held that assumptions or speculation about consent cannot ground the defence of honest but mistaken belief in consent.

The court found the complainant credible and concluded that no evidence supported a communicated consent to the sexual activity.

The Crown proved beyond a reasonable doubt that the complainant did not consent and that the accused acted with recklessness or willful blindness regarding consent.

During a jury trial arising from a shooting into an occupied dwelling, the accused applied to quash two counts on the indictment on the basis of issue estoppel or res judicata following a discharge at a preliminary inquiry on a conspiracy to murder charge.

The accused also sought directed verdicts of acquittal on multiple counts at the close of the Crown’s case.

The court held that the earlier discharge did not determine issues necessary to the remaining counts and therefore did not bar the prosecution.

Applying the test for directed verdicts, the court found that the Crown had adduced some evidence on each essential element of the offences, including evidence supporting liability as a party under s. 21 of the Criminal Code.

The applications were dismissed and the case was left for determination by the jury.

During a jury trial on firearms-related offences and aggravated assault arising from a shooting incident, the court conducted a voir dire regarding the admissibility of three police statements made by the accused following arrest.

The defence argued the statements were involuntary due to intoxication, fatigue, oppressive interrogation, inducements, and breaches relating to the provision of rights.

Applying the voluntariness doctrine and the principles articulated in leading Supreme Court authority, the court assessed whether the accused had an operating mind and whether police conduct overbore the accused’s will.

The court found the accused understood he was speaking to police and that his statements could be used against him, and rejected allegations of inducement, oppression, or lack of an operating mind.

The Crown proved voluntariness beyond a reasonable doubt and the statements were admitted at trial.

The accused was charged with breaching a probation order and recognizance by associating with a named person on two separate occasions.

On the first incident (March 30, 2012), the accused was observed in conversation with the prohibited person at a retail store.

On the second incident (April 2, 2012), the prohibited person was present in the accused's apartment.

The Crown proceeded summarily and the defence called no evidence.

The court found that the accused intended to communicate with the prohibited person on the first occasion, establishing the necessary mens rea for breach of probation.

On the second occasion, the court found that the identity of the person in the apartment was established beyond a reasonable doubt through circumstantial evidence, including witness identification, a health card, and corroborating facts.

The accused was found guilty on all counts.

The accused was charged with two counts of assault causing bodily harm under Section 267(b) of the Criminal Code, alleged to have occurred on June 18, 2011, in the Town of Hanover and Township of Normandy.

The Crown's case relied primarily on the testimony of the complainant, the accused's spouse, who alleged two separate violent assaults during a high school reunion weekend.

The accused provided a materially different account, claiming the complainant initiated physical attacks on him while driving, and that he acted only in self-defense and to restrain her.

The court found credibility issues with the complainant's account, particularly the discrepancy between her description of severe beatings and the relatively minor injuries documented.

The accused's evidence, while not entirely convincing, raised reasonable doubt sufficient to warrant acquittal on both counts.

The accused pleaded guilty to five offences: assault causing bodily harm (July 9, 2011), breach of undertaking (December 1, 2011), uttering threats (January 6, 2012), assault on a peace officer (January 7, 2012), and breach of recognizance (January 6, 2012).

The assault on the victim resulted in serious injuries including spinal cord syndrome, chronic pain, and permanent disability.

The accused has a significant criminal record including six prior assault convictions.

The court imposed a sentence of 10 months and 4 days imprisonment (after crediting 61 days presentence custody) with concurrent sentences on the remaining charges, followed by 24 months probation with strict conditions including abstinence from alcohol, participation in treatment programs, and no contact with victims.