Caroline Fontaine

The Court dismissed the Crown appeal and upheld the setting aside of convictions for sexual assault and aggravated assault.

It held that on these facts condom use was required to negate a realistic possibility of HIV transmission, but the trial judge committed an error of law by relying on speculative inferences from a doctor's note as confirmatory evidence that no condom was used.

Without reliable confirmatory evidence, guilt was not proven beyond a reasonable doubt.

The Supreme Court of Canada considered four appeals involving offenders who had been detained for significant periods before being sentenced.

The trial judges imposed custodial sentences of less than two years and probation for three years, taking into account the pre-sentence custody.

In one case, the judge also ordered the offender to serve half his sentence before being eligible for parole.

The Court held that the term of imprisonment is the term imposed by the judge at the time of sentence, and pre-sentence custody is not part of the sentence but a factor taken into account.

Therefore, the sentences were less than two years, making the probation orders valid and the parole ineligibility order invalid.

The accused was convicted of sexual assault against a young child who attended a daycare operated by his wife.

The trial judge found the child's declarations reliable and rejected the accused's testimony, finding his explanations to be attempts at justification.

The Court of Appeal set aside the conviction, holding that the trial judge's reasons for rejecting the accused's testimony were insufficient.

The Supreme Court of Canada allowed the Crown's appeal and restored the conviction, holding that the trial judge's reasons, viewed as a whole, adequately demonstrated the rationale behind her findings on credibility and reasonable doubt, and were sufficiently amenable to appellate review.