Emily Vandersanden

The court sentenced K.H. to four and a half years in the penitentiary for sexual interference, following a jury trial.

The decision details the circumstances of the offence, the offender’s background, the impact on the victim, and the application of sentencing principles, including the relevance of systemic and cultural factors.

The court considered aggravating and mitigating factors, the impact of anti-Black racism, and the Supreme Court’s guidance in R. v. Friesen regarding substantial sentences for child sexual abuse.

Ancillary orders were also imposed.

The accused, Nadim Khan, was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration over 80 mg.

Khan conceded impairment and BAC over 80, but argued involuntary intoxication, claiming he was drugged and possibly sexually assaulted.

The court rejected Khan's testimony as unbelievable and found no air of reality to the involuntary intoxication defence.

The court also briefly addressed and dismissed the defence of automatism due to lack of evidence.

Khan was found guilty on both counts.

This ruling addresses a Section 276 Criminal Code application in a sexual assault case, where the accused, Habtamu Kebede, sought to cross-examine the complainant on prior sexual activity and communications.

The court dismissed the application for certain utterances (race-based sexual preferences and sexual inactivity) due to lack of relevance and high prejudicial effect.

However, it granted the admission of video evidence showing flirtatious behaviour at a bar and evidence of a goodbye kiss at the complainant's Airbnb, finding these relevant to the complainant's credibility and the surrounding circumstances of the alleged offence, with their probative value outweighing any prejudice.

The accused was charged with refusing to provide a breath sample.

The trial concluded over 21 months after the information was sworn.

The accused brought an application under section 11(b) of the Charter, arguing unreasonable delay.

The Crown argued that the delay was partially caused by the defence and the COVID-19 pandemic, specifically the unavailability of an in-person French interpreter.

The court found that the failure to secure an in-person interpreter was a state failure, not a discrete event caused by the pandemic.

After deducting defence delay, the net delay exceeded the 18-month presumptive ceiling.

The court found a violation of section 11(b) and granted a stay of proceedings.