Elizabeth Kozak

The appellant, a young person at the time of the alleged offences, appealed convictions for two counts of sexual assault involving a younger half-sibling.

The trial involved only the complainant and the accused as witnesses, and the trial judge accepted the complainant’s evidence and rejected the accused’s testimony, resulting in conditional discharges and probation.

The Court of Appeal held that the trial judge committed errors in the credibility assessment by relying on factors that could not reasonably undermine the accused’s credibility, including the wording of his denials, his description of the parties’ distant relationship, his denial of an unrelated incident, and his recollection of household details.

Because these reasons improperly influenced the rejection of the accused’s evidence and the conclusion that it did not raise a reasonable doubt, the convictions could not stand.

A new trial was ordered.

During a trial for first-degree murder arising from a home invasion and robbery, the Crown brought a KGB application to admit the prior inconsistent statement of a co-perpetrator for the truth of its contents.

The co-perpetrator had confessed to undercover police officers during a 'Mr. Big' operation but recanted parts of his confession at trial.

The court found that while the statement lacked substantive reliability, it met the test for threshold reliability based on procedural reliability, as there were adequate substitutes for testing truth and accuracy, including cross-examination and the use of a truth verification strategy by the undercover officers.

The application was granted and the statement was admitted.

A 20-year-old first-time offender pleaded guilty to assault with a weapon and dangerous driving arising from an incident on the Gardiner Expressway in which he displayed a BB gun at another vehicle, causing the other driver to swerve and nearly collide with other vehicles.

The Crown sought four to six months custody plus ancillary orders.

The defence sought an absolute discharge.

The court granted an absolute discharge on both counts, finding that the offender's momentary lapse in judgment was completely out of character, that he presented a low risk of recidivism, and that the ancillary orders provided sufficient protection for the public interest.