David E. Harris

In a criminal appeal involving cross-appeals by the Crown and the accused, the court held that the trial judge had no jurisdiction to quash a sexual assault count after the jury returned its verdict.

The court further held that the count, although spanning periods before and after the complainant reached the age of consent, did not undermine jury unanimity because the jury was instructed that non-consent had to be proved beyond a reasonable doubt.

However, the court found reversible error in the failure to give a proper limiting instruction on the use of extensive bad character evidence arising from allegations of long-term physical and sexual abuse within a household.

The Crown appeal was allowed, the accused’s appeal was allowed, the order quashing count 3 was set aside, and a new trial was ordered on all counts that had resulted in convictions.

The appellant appealed from convictions, arguing that the trial judge erred in his approach to collusion between complainants, failed to address a specific defence submission, and unreasonably admitted a videotaped statement after a two-year delay.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately addressed the potential tainting of evidence, that the omitted defence submission would not have affected the outcome, and that the trial judge reasonably exercised his discretion to admit the videotaped statement given the reasons for the delayed disclosure.

The appellant appealed his conviction, challenging the admissibility of his statements on the basis of alleged Charter breaches.

The Court of Appeal dismissed the appeal, deferring to the trial judge's findings of fact.

The court held it was open to the trial judge to find the appellant was not detained during the early part of the search, the police were not required to reiterate his s. 10(b) rights, and he did not invoke his rights at the station.

The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching against a child.

He appealed the convictions, arguing the trial judge erred by excluding evidence of the complainant's prior sexual abuse by another individual under s. 276 of the Criminal Code, failing to provide limiting instructions regarding prior consistent statements and extrinsic misconduct, improperly characterizing a defence witness's evidence as potentially 'scripted', and inadequately answering a jury question on the standard of proof.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions.

The appellants were convicted of first degree murder following a home invasion robbery where the victim was bound and shot.

At trial, they advanced a cut-throat defence, each accusing the other of being the shooter.

On appeal, they argued the trial judge misdirected the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code and party liability under s. 21(2).

The Court of Appeal held that while s. 21(2) can form the basis for first degree murder, the trial judge failed to adequately instruct the jury on what factual findings were required to conclude the non-shooter actively participated in the killing.

The appeals were allowed in part, the first degree murder convictions were set aside, and convictions for second degree murder were substituted.

The appellant was charged with possessing child pornography between 1999 and 2006.

He claimed he collected the materials to create an artistic exhibition about child exploitation.

The trial judge acquitted him based on the pre-2005 artistic merit defence and the post-2005 legitimate purpose defence.

The Court of Appeal set aside the acquittal and entered a conviction.

The Supreme Court of Canada allowed the appeal and ordered a new trial, finding that the trial judge erred in law by applying the artistic merit defence to materials lacking artistic merit, and by using a purely subjective test for 'legitimate purpose'.

However, the Court of Appeal exceeded its jurisdiction by making its own factual findings to substitute a conviction instead of ordering a new trial.

The accused was charged with sexual assault causing bodily harm.

At trial, the Crown introduced similar fact evidence from the accused's former wife regarding alleged past assaults to show a propensity for non-consensual, painful sex.

The accused argued the evidence was highly prejudicial and that the former wife and the complainant had colluded.

The trial judge admitted the evidence and left the issue of collusion to the jury, resulting in a conviction.

The Court of Appeal ordered a new trial.

The Supreme Court of Canada dismissed the Crown's appeal, holding that the similar fact evidence was wrongly admitted because its prejudicial effect outweighed its probative value, and the trial judge erred in law by failing to resolve the issue of collusion as a condition precedent to admissibility.

Two appellants appealed jury convictions for sexual assault and unlawful confinement arising from an assault on an intoxicated teenage complainant at a rural gravel pit.

The court held that the trial judge properly instructed the jury that it could consider defence counsel's failure to cross-examine the complainant on a central factual issue later contradicted by one appellant's evidence when assessing credibility.

The court also rejected objections to evidence that two witnesses had pleaded guilty to perjury in relation to their preliminary inquiry testimony.

Although aspects of Crown cross-examination and submissions touched improperly on one appellant's pre-trial silence, the curative instruction was held sufficient and no miscarriage of justice was found.

The appellant appealed convictions for sexual assault and forcible confinement arising from a jury trial in which the central issue was whether the complainant consented to sexual activity.

After the defence evidence, the Crown sought a jury instruction on vitiated consent under s. 273.1(2)(c) of the Criminal Code on the theory that the appellant was the complainant’s drug supplier and had abused a position of power.

The Court of Appeal held that this theory had not been properly advanced from the outset and lacked an adequate evidentiary foundation, particularly given the complainant’s denial of any consent-based drug dependency scenario.

The jury charge on vitiated consent was inadequate and potentially confusing, and the court could not conclude the verdict was safe.

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

The Crown appealed sentence for a very serious violent offence committed by a young first offender.

The Court of Appeal held that the six-month custodial sentence followed by probation was clearly inadequate and that appellate intervention was warranted.

Considering the respondent's completed incarceration, fragile psychological state, remorse, first-offender status, and the absence of any demonstrated ongoing danger to the community, the court concluded that a penitentiary term was not fit.

The sentence was varied to an 18-month conditional sentence to be served in the community, with probation to follow.