David B. Butt

The defendant, a police officer, was charged with sexual assault arising from an alleged incident in 1986 involving a woman he had investigated during a traffic stop.

The complainant alleged the defendant contacted her early the next morning, came to her home under the pretext of needing additional information, and forced her to perform fellatio.

The defendant testified the encounter was consensual and involved only kissing and touching.

The court found both witnesses had credibility concerns but ultimately determined that while the complainant's version was more probable, the Crown had not proven guilt beyond a reasonable doubt.

The charge was dismissed.

The applicant, a police officer, brought a motion to set aside a Registrar's order dismissing his appeal for delay.

The appeal was from a disciplinary decision of the Ontario Civilian Police Commission.

The applicant failed to perfect the appeal and did not respond to the respondent's inquiries.

The court applied the four factors for setting aside a dismissal order and found that the applicant failed to provide an acceptable explanation for the delay, did not act inadvertently, failed to move promptly to set aside the order, and that the merits of the appeal were highly questionable.

The motion was dismissed.

The applicant, a complainant in a sexual assault prosecution, sought certiorari to review a preliminary inquiry ruling refusing to admit proposed expert evidence regarding the limited reliability of facial demeanour in assessing credibility.

The proposed expert intended to testify about social science literature suggesting that observing facial expressions does not meaningfully improve the ability to detect dishonesty.

The court applied the admissibility framework from R. v. Mohan and held that the preliminary inquiry judge did not err in declining to qualify the expert or admit the evidence, noting that the proposed opinion relied primarily on a literature review outside the expert’s field of direct research and lacked necessity.

The court further held that the complainant, as a third party whose Charter interests were directly affected, could seek certiorari review, but no jurisdictional error or error of law was established.

In a criminal appeal involving a niqab-wearing complainant at a preliminary inquiry, the Court addressed how to reconcile freedom of religion with fair-trial rights.

The majority held neither an absolute ban nor an absolute permission rule is acceptable, and adopted a contextual four-step framework.

A witness may be required to remove a niqab only where necessary to prevent a serious trial-fairness risk that cannot be avoided by alternatives, and where the benefits of removal outweigh the harms.

The appeal was dismissed and the matter remitted for application of that framework.

The accused, a parking enforcement officer, was charged with assault contrary to section 266 of the Criminal Code.

The accused was struck and knocked to the ground on Ossington Avenue, sustaining a mild concussion.

Approximately one hour later, at a police station, the accused assaulted the person who had attacked him.

The defence raised the common law defence of non-insane automatism, arguing the accused's actions were involuntary due to impaired consciousness from the concussion.

The Crown argued the accused acted voluntarily.

The trial judge found the defence had not established a proper evidentiary foundation for automatism and convicted the accused.

Three police constables from the Barrie Police Service were charged with assault causing bodily harm following their arrest of a civilian, Michael Ullman, at his residence on July 5, 2009.

The Crown alleged the officers entered the home without permission, without exigent circumstances, and used excessive force during the arrest, resulting in a broken arm.

The defendants claimed they were invited into the home, had reasonable grounds to believe firearms were present (exigent circumstances), and used only necessary force to subdue an actively resisting suspect.

The trial focused on whether the entry was lawful and whether the force used was reasonable.

The appellant appealed a decision unsealing search warrant material that contained the names of police officers who had not been charged with any offence.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the application judge's conclusion that the public interest in open justice outweighed the officers' privacy interests and that a publication ban was not warranted.

The appellant appealed his conviction entered by the Superior Court of Justice.

The Court of Appeal dismissed the appeal, agreeing with the reasons of the trial judge.

The appellant and her common law husband were charged with aggravated assault and failure to provide necessaries of life to their infant son.

At trial, the appellant did not testify, and counsel for the co-accused commented on this failure.

The trial judge instructed the jury on an objective standard for failure to provide necessaries.

During deliberations, the jury asked if they had to agree on guilty or not guilty, and the judge answered they must be unanimous one way or the other.

The Supreme Court of Canada held that the judge's answer to the jury's question improperly suggested they did not have the right to disagree, necessitating a new trial.

The Court also held that the objective standard of fault for failure to provide necessaries under s. 215 of the Criminal Code does not violate s. 7 of the Charter.

The appellant was convicted of sexual assault following a trial that hinged on the credibility of the accused versus the complainant.

During the main charge, the trial judge correctly instructed the jury on the burden of proof beyond a reasonable doubt.

However, in a brief recharge requested by the Crown, the judge erroneously framed the core issue as whether the jury believed the complainant or the accused, omitting the third alternative that they might disbelieve the accused but still have a reasonable doubt.

The Supreme Court of Canada held that, despite the error in the recharge, the charge read as a whole adequately instructed the jury on the proper standard of proof, given the correct instructions in the main charge and the short time elapsed before the recharge.

The appeal was dismissed.