B. McCallion

The appellant appealed two summary convictions: one for breaching a bail recognizance and another for breaching a probation order.

Both charges stemmed from the appellant posting the names of criminal complainants on his blog.

The Superior Court allowed the appeal against the bail breach conviction, finding the trial judge erred by not applying the subjective mens rea standard established in R. v. Zora, and ordered a new trial.

However, the court dismissed the appeal against the probation breach conviction, holding that the appellant was barred from collaterally attacking the probation order and failed to provide evidence that his guilty plea was involuntary or uninformed.

The appellant, a kickboxing coach, appealed his convictions for sexual assault and sexual interference against his 14-year-old student.

The offences occurred on an airplane flight.

The appellant argued the trial judge misapprehended evidence regarding the complainant's disclosure to her therapist, improperly bolstered her reliability based on a lack of motive to fabricate, and improperly used evidence of their relationship as propensity evidence.

The Superior Court of Justice dismissed the appeal, finding no misapprehension of evidence, no improper bolstering of reliability, and that the trial judge properly considered the relationship evidence to assess the appellant's state of mind.

The accused brought a pre‑trial application under s. 276 of the Criminal Code seeking leave to cross‑examine the complainant about prior sexual activity with him and with other individuals.

The proposed questioning arose in the context of numerous text messages between the parties that appeared to reference sexual relations during the period when they lived together.

The court held that cross‑examination regarding alleged prior consensual sexual activity between the complainant and the accused was relevant to credibility and necessary to provide context for the text message evidence.

However, proposed questioning about the complainant’s sexual activity with other individuals was excluded as irrelevant and as improperly engaging the prohibited “twin myths.” Leave was therefore granted only in relation to prior sexual activity between the complainant and the accused.

The Crown applied to admit two out‑of‑court statements made by the shooting victim to police officers in hospital under the principled exception to the hearsay rule, or alternatively as original evidence of identification.

The witness testified at trial but claimed no memory of speaking to police and denied seeing the shooter.

The court held that necessity was not established because the Crown failed to follow the procedure under s. 9 of the Canada Evidence Act and the framework from B.(K.G.) for prior inconsistent statements.

The court further held that threshold reliability was not demonstrated because the statements were not sworn, recorded, or verified, and the circumstances of the interview and inconsistencies in the statements undermined reliability.

The court also rejected reliance on the Langille identification principle because the case did not involve identification of a stranger.

The appellant appealed a conviction for care and control of a motor vehicle with a blood alcohol level exceeding the legal limit.

The central issue was whether the appellant had rebutted the statutory presumption of care or control under s. 258(1)(a) of the Criminal Code by establishing that he occupied the driver’s seat for a purpose other than setting the vehicle in motion.

Evidence indicated that the appellant had surrendered his keys and that alternative plans existed for transportation home, including being driven by another person or waiting for a ride from a third party.

The appeal court found that the trial judge failed to properly consider this evidence and may have improperly relied on a negative inference arising from the absence of corroborating testimony.

The court held that the evidence, assessed in accordance with the framework in W.(D), could not reasonably support a conviction.