Carl O’Brien

The accused was tried on multiple counts of sexual assault and assault arising from incidents occurring in October and December 2010 within an intimate relationship.

The accused pleaded guilty to aggravated assault arising from a later incident but contested the remaining charges.

The court found the complainant’s evidence regarding the alleged sexual assaults unreliable due to significant inconsistencies, contradictions with other witnesses, and post‑incident communications between the complainant and the accused that undermined her credibility.

Forensic evidence showing the accused’s DNA on vaginal and rectal swabs did not assist the Crown because it could not exclude consensual intercourse in the days preceding the examination.

The court convicted the accused of one count of assault but acquitted on the sexual assault counts and a further assault charge due to reasonable doubt.

The defendant, charged with sexual assault, applied for a stay of proceedings due to the police losing an audio tape of the complainant's initial statement.

The court found the loss was due to unacceptable negligence but dismissed the stay application, concluding the defendant could still make full answer and defence using the officer's contemporaneous notes and a later video statement.

The defendant also sought disclosure of various records.

The court ordered the Crown to disclose the complainant's criminal record and inquire into other complaints made by her, but held that police occurrence reports from unrelated investigations were third-party records requiring an application under s. 278.3 of the Criminal Code.

The court also declined to order the Crown to provide a binding witness list.

The Crown appealed an acquittal for impaired operation of a motor vehicle under s. 253(1)(a) of the Criminal Code.

The trial judge had accepted evidence that the accused displayed typical indicia of impairment but framed the legal issue as whether the accused’s conduct represented a marked departure from that of a normal person.

The appeal court held this was an error of law because the correct standard is whether the accused’s ability to operate a motor vehicle was impaired to any degree, ranging from slight to great.

The trial judge also erred by treating a First Nations peacekeeper as a peace officer and drawing adverse inferences from the absence of an immediate arrest.

Applying the correct legal test, the court concluded the necessary factual findings had been made and substituted a conviction.