Cheryl A. Schlecker

The appellant was convicted by jury of second degree murder, indecently interfering with human remains, and arson.

On appeal, the Alberta Court of Appeal upheld the convictions.

At trial, the Crown sought to lead rebuttal expert evidence but failed to disclose the expert report prior to the completion of the defence expert's testimony, and also failed to cross-examine the defence expert on the contents of that report.

The trial judge allowed the Crown's expert to testify but restricted the scope of the evidence as a remedial measure.

The Supreme Court held that the Crown's late disclosure and failure to cross-examine interfered with the accused's ability to know the case to meet and make full answer and defence.

The trial judge's remedial ruling was not capable of undoing the prejudice caused, and precluding the Crown's expert from testifying entirely was the only way to preserve the accused's right to a fair trial.

A new trial was ordered on all counts.

The appellant was acquitted of sexual assault at trial after the trial judge accepted a child witness's testimony as truthful and reliable, but found the absence of subjective consent was not the only reasonable inference.

The Alberta Court of Appeal allowed the Crown's appeal and substituted a conviction.

On further appeal to the Supreme Court of Canada, the Court dismissed the appeal, finding errors of law apparent on the face of the trial judge's reasons.

The trial judge misapplied the law of circumstantial evidence and the law of consent: the complainant, who was asleep and drugged while being dragged from her bedroom, was statutorily incapable of consenting, and no alternative inference was posited or reasonably available.

The conviction was upheld and the case remitted for sentencing.