Crystal Tomusiak

In a sexual assault appeal, the Court addressed whether evidence of a complainant’s sexual inactivity, including references to virginity and prior sexual disinterest, is presumptively inadmissible under s. 276 and the analogous common law regime governing Crown-led sexual history evidence.

The Court held that sexual inactivity evidence forms part of sexual history and can trigger inverse twin-myth reasoning, so it is presumptively inadmissible and must be screened through a voir dire.

The Court further held that, subject to limited modifications, the common law process for Crown-led sexual history evidence should mirror the two-stage statutory framework in ss. 278.93 and 278.94, including gatekeeping and publication-protection principles.

Because the trial judge admitted and relied materially on presumptively inadmissible communications without a voir dire, the evidentiary error was not harmless and the curative proviso could not apply.

The conviction was quashed and a new trial ordered.

The accused, Johnathan Townsend, brought an application under section 8 of the Charter to exclude computer evidence, specifically Skype chat logs and internet searches, in his first-degree murder trial.

The court found that the police search of the computer breached Townsend's Charter rights due to insufficient judicial authorization regarding the scope and timing of the data analysis.

However, applying the R. v. Grant test, the court determined that the evidence should not be excluded, citing the technical nature of the breach, the good faith of the police, the principled search methodology, and the overwhelming societal interest in the highly probative and essential evidence for the first-degree murder prosecution.

The Crown brought a motion for a finding that the accused's video statement to police was voluntary and admissible.

The accused argued the statement was involuntary due to a lack of operating mind, inducements/trickery related to his parents, and the cumulative effect of these factors.

The court found the statement was voluntary beyond a reasonable doubt, concluding that police conduct did not amount to trickery or inducement, and the accused possessed an operating mind, demonstrating nuanced decision-making despite his Asperger's condition and recent psychiatric care.

The statement was deemed admissible for the upcoming trial.

On a bail review under s. 520 of the Criminal Code, the applicant sought release from a detention order arising from multiple allegations of domestic assault, sexual assault, child sexual offences, mischief, and breach of recognizance.

The court accepted that there had been material change and legal error in the earlier tertiary-ground analysis, but independently concluded that detention remained justified on both the secondary and tertiary grounds.

The proposed release plan, centred on treatment and rotating sureties residing at the applicant's properties, was found inadequately enforceable and insufficient to manage risks of reoffending, witness interference, and non-compliance.

Applying the substantial likelihood standard and the St-Cloud tertiary-ground framework, the court held that release would undermine public safety and confidence in the administration of justice.

The Crown brought a dangerous offender application following the offender's convictions for sexual assault, assault with a weapon, and assault causing bodily harm.

The offender had an extensive criminal record, including two prior convictions for sexual assault.

The court heard competing expert evidence on the offender's risk of re-offending.

The court found that while the offender had a pattern of repetitive behaviour, the Crown failed to prove beyond a balance of probabilities that there was a likelihood of the offender causing death, injury, or severe psychological damage in the future.

The court also declined to designate the offender as a long-term offender.

The court imposed a global sentence of 10.5 years, reduced to 2 years less a day after credit for pre-sentence custody, followed by 3 years of probation with strict conditions.

The defendant was charged with failing to comply with an approved screening device (ASD) demand after being pulled over for speeding and suspected impaired driving.

Despite multiple opportunities and instructions, the defendant was unable to produce an adequate breath sample, resulting in arrest.

The Crown sought conviction under section 254(5) of the Criminal Code.

The court acquitted the defendant, finding that the Crown failed to prove beyond a reasonable doubt that the defendant intentionally failed to comply with the demand.

The court adopted the Lewko/Soucy formulation of mens rea, requiring proof of intentional non-compliance rather than mere knowledge or recklessness.

The defendant was charged with impaired operation of a motor vehicle and operating a vehicle with a blood alcohol concentration exceeding the legal limit following a traffic stop on Highway 401.

The Crown's case relied on roadside screening device and Breathalyzer test results.

The defendant challenged the admissibility of the evidence on Charter grounds, alleging violations of section 8 rights to privacy arising from video surveillance of his use of a toilet while in police custody.

The court acquitted the defendant of the impaired driving charge based on insufficient evidence of impairment.

The court found a Charter breach regarding the video surveillance and excluded the Breathalyzer results under section 24(2) of the Charter, resulting in acquittal on the "over 80" charge as well.

The defendant was charged with failing or refusing to comply with a demand to provide a breath sample on an approved screening device (ASD) on July 29, 2013, on Highway 401 in Toronto.

The Crown alleged the defendant intentionally failed to produce a suitable sample during six attempts over five minutes.

The defendant testified he attempted to comply with the officer's instructions.

The court acquitted the defendant, finding that the Crown must prove the defendant intended to fail to provide a sample, not merely that he knew of the failure.

Additionally, the court found reasonable doubt regarding whether the failure was caused by the defendant's conduct or by malfunction or improper administration of the ASD device.

The applicant was charged with impaired driving, driving with a BAC over 80 milligrams per 100 millilitres of blood, and driving while disqualified.

He brought an application under section 24(1) of the Canadian Charter of Rights and Freedoms alleging that his right to a trial within a reasonable time under section 11(b) had been infringed.

The court analyzed the delay using the framework established in R. v. Morin, finding that while there was some Crown delay in disclosure (approximately 1 month 25 days), the total operative delay was only 15 days beyond the Morin guidelines.

The court found no actual or inferred prejudice to the applicant and concluded that societal interests in having the serious charges tried on their merits outweighed the Charter violation claim.

The application was dismissed.

The appellant was convicted by a jury of trafficking in cocaine and possession of property obtained by crime.

He appealed his conviction, alleging five errors in the trial judge's charge to the jury, including a slip of the tongue where the judge referred to him as 'Mr. Guilty', the absence of a limiting instruction on bad character evidence, and errors in the W.D. instruction.

The Court of Appeal dismissed the appeal, finding no merit to the alleged errors and concluding that the jury was properly instructed and no miscarriage of justice occurred.

The appellant appealed his conviction and sentence.

He argued the jury charge was misleading regarding credibility findings across counts, the consent instructions should have been tailored, and the trial judge erred in findings of fact for sentencing.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions were adequate and standard.

The court also granted leave to appeal the sentence but dismissed the appeal, holding the trial judge's findings of fact were well explained and open to him.

The appellants appealed their convictions and sentences for sexual assaults against three young girls.

The primary ground of appeal was that the trial judge erred by drawing an adverse inference against the credibility of one appellant's testimony because the defence failed to cross-examine a complainant on alleged written consent documents, invoking the rule in Browne v. Dunn.

The Court of Appeal found no error, holding that the adverse inference was a proper part of the trial judge's fact-finding and weighing of evidence, not a penalty for a tactical error.

The court also rejected arguments that the trial judge misapprehended evidence or failed to give separate consideration to the co-appellant's case.

The appeals from conviction and sentence were dismissed.

The appellant appealed his sentence for assault, raising issues regarding pre-sentence custody credit under s. 719(3.1) of the Criminal Code and the trial judge's consideration of the victim's severe injuries.

The Court of Appeal dismissed the appeal, noting that the pre-sentence custody issue was not clearly raised below and the appellant was being released on parole that day.

The court also held that the sentence was entirely fit given the seriousness of the assault and the severity of the injuries.

The appellant appealed his conviction and six-month sentence for assault causing bodily harm following a bar fight where he sucker-punched the complainant.

He argued the trial judge misapplied the standard of proof and erred in assessing credibility regarding his self-defence claim.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's core findings were supported by a sober, independent witness.

The sentence appeal was also dismissed as the six-month term fell within the appropriate range given the circumstances.

The appellant appealed his conviction for sexual assault and his sentence of five months' imprisonment.

He argued the trial judge erred in applying the standard of proof to a credibility contest, failed to give sufficient reasons, and made errors in principle during sentencing, including failing to give sufficient weight to the likelihood of his deportation.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly applied the principles underlying the W.(D.) instruction, provided sufficient reasons, and correctly concluded that a discharge was contrary to the public interest despite the immigration consequences.

The appellant appealed an extradition judge's order committing him for surrender to Hungary to face charges of fraud over $5,000.

The appellant argued there was insufficient evidence in the Records of the Case identifying him as the perpetrator who created false car leasing documents and entered into fraudulent loan agreements.

The Court of Appeal dismissed the appeal, finding that the summaries of evidence, including witness testimony and documentary evidence, when read as a whole, provided sufficient evidence to support the inference that the appellant was the perpetrator of the frauds.

The appellant appealed his convictions on six counts of sexual assault against a child complainant.

He argued the trial judge erred in dismissing his application to introduce evidence of the complainant's prior allegations against another individual without holding a hearing, and that Crown counsel's comments during the trial rendered it unfair.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion regarding the evidentiary application and concluding that the Crown's comments did not result in trial unfairness.

The appellant appealed a decision of the Ontario Review Board ordering that he continue to be subject to a conditional discharge.

He argued for an absolute discharge, supported by a doctor's opinion.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's continuing pattern of criminal behaviour, impulsivity, and need for monitoring.

The appellant appealed the three-year probation term of his sentence, having already served the custodial portion.

The Court of Appeal held that the three-year term was not excessive given the appellant's extensive criminal record and the rehabilitative objectives of probation.

The appeal was dismissed.

The appellant appealed his convictions for robbery, assault with a weapon, and use of an imitation firearm while committing robbery.

At trial, the judge did not leave the defence of self-defence with the jury, concluding there was no air of reality to the defence based on a pre-emptive strike.

The Court of Appeal found that, taking the appellant's evidence at its highest, there was a basis for leaving self-defence with the jury under s. 37 of the Criminal Code, given the complainant's history of bullying and aggression towards the appellant.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.