Chantelle M. LaFitte

The appellants, Sebastian Zamora and Nicholas Poku, appealed an order of the Superior Court of Justice that quashed their discharge at a preliminary inquiry and committed them for trial on drug trafficking and importing charges.

The Court of Appeal affirmed the reviewing judge's decision, finding that the preliminary inquiry judge committed jurisdictional error by improperly weighing evidence and drawing inferences, which is the role of the trier of fact.

The court declined to address the issue of when the actus reus of the offence of importing is complete, deeming it an inappropriate forum for such clarification.

Following a jury's guilty verdict for gang sexual assault and administering a stupefying drug, the court delivered reasons for sentencing Gavin MacMillan and Enzo DeJesus Carrasco.

Each offender received a total sentence of nine years imprisonment (seven years for gang sexual assault and two years consecutive for administering a stupefying substance), with credit for pre-sentence custody.

The court found that the victim never consented to the sexual activity, and the offenders had no mistaken belief of consent, rejecting their characterization of events as consensual BDSM.

Ancillary orders included DNA, lifetime prohibition, 20-year SOIRA, and non-communication.

The Crown brought an application during a trial for gang sexual assault to admit the expert testimony of an emergency room physician and a sexual assault nurse-examiner.

The proposed evidence concerned the effects of alcohol and drugs on the complainant's consciousness and capacity to consent, as well as the interpretation of her physical injuries.

The accused opposed the physician's evidence, arguing she lacked toxicological expertise and was biased due to her advocacy for sexual assault survivors.

The court admitted the evidence, finding it relevant, necessary, and reliable, and held that the physician's social media posts did not demonstrate an inability to provide impartial evidence.

The accused, charged with gang sexual assault and other offences, brought applications under s. 276 of the Criminal Code to adduce evidence of the complainant's prior sexual comments, gestures, and interest in a sex club to support their defence of honest but mistaken belief in communicated consent.

The court dismissed the application regarding the prior sexual comments and gestures, finding the evidence irrelevant and based on prohibited twin-myth reasoning.

The court permitted limited evidence regarding discussions about attending a sex club solely to provide context for a text message sent by one of the accused, with strict instructions against using it to infer consent.

Evidence of conversations immediately prior to the sexual encounters was ruled admissible.

The accused brought a pre-trial motion arguing that recent amendments to the Criminal Code eliminating peremptory challenges in jury selection should not apply retrospectively to their trial.

The court applied the rule of coordinate jurisdiction, noting that two other Ontario Superior Court judges had already ruled the amendments were procedural and applied retrospectively.

Finding no cogent reason to depart from those decisions, the court dismissed the application and ordered jury selection to proceed under the amended procedure.

The Crown sought to admit a post-arrest statement made by the accused, who was charged with multiple sexual offences.

The accused challenged the voluntariness of the statement, arguing that his English comprehension was insufficient and that the police caution regarding his right to silence was inadequate.

The court found that the accused's English skills were reasonably sophisticated and that the police officer went to great lengths to ensure the accused understood his right to silence.

The statement was ruled voluntary and admissible.

The accused, charged with sexual assault, applied to challenge prospective jurors for cause based on pre-trial publicity and the #MeToo movement, specifically the #IBelieveHer hashtag.

The court permitted modified questions regarding pre-trial publicity but dismissed the request to ask questions about the #MeToo movement and the hashtag.

The court held there was an insufficient evidentiary basis to take judicial notice of widespread bias or that jurors would be incapable of setting aside such bias despite trial safeguards.