Eric Purtzki

Two appeals arising from sexual assault convictions that were overturned by the British Columbia Court of Appeal on the basis of a proposed 'rule against ungrounded common-sense assumptions'.

The majority declined to recognize this rule as giving rise to an error of law, holding that credibility and reliability assessments — including reliance on common-sense assumptions — are reviewable only for palpable and overriding error absent a recognized error of law such as reliance on myths and stereotypes about complainants.

Applying the correct standard of palpable and overriding error, the majority found no reviewable errors in either trial judge's credibility findings and restored both convictions.

Rowe J. concurred in the result but proposed a three-question framework for appellate review of generalized expectations, holding that reliance on an unreasonable generalized expectation constitutes an error of law reviewable on correctness.

The appellant was convicted of sexual assault causing bodily harm and administering a stupefying drug, and brought an application for a stay of proceedings on the basis that his s. 11(b) Charter right to be tried within a reasonable time had been infringed.

The trial judge found that the total delay exceeded the Jordan ceiling but was justified by the transitional exceptional circumstance and dismissed the application.

A majority of the Court of Appeal found that the trial judge erroneously characterized delay occasioned by the appellant's re-election of another mode of trial as a discrete exceptional circumstance, but upheld the dismissal on the basis of the transitional exceptional circumstance.

The Supreme Court dismissed the appeal, holding that the appellant's re-election was not done legitimately to respond to the charges and the resulting 13-month delay should have been characterized as defence delay.

Two appellants were charged with living on the avails of sex work under s. 212(1)(j) of the Criminal Code for conduct during the one-year suspension period following the Bedford declaration of invalidity.

The majority held that the Bedford suspended declaration of invalidity operated purely prospectively, meaning the law was valid during the suspension period and the appellants could be convicted for conduct committed during that period.

The majority reasoned that the purpose of the suspension — avoiding deregulation of sex work to protect vulnerable sex workers — would be frustrated by retroactive application.

The dissent concluded that the Bedford declaration had retroactive effect once the suspension expired, rendering s. 212(1)(j) void ab initio and precluding conviction.

The appeals were dismissed, with the appellants' convictions affirmed by the majority.

The appellant Crown appealed a Court of Appeal decision ordering a new trial after the majority found the trial judge had misapprehended evidence by failing to address prior inconsistent statements made by the complainant to a friend shortly after the alleged sexual assault.

The Supreme Court restored the conviction, agreeing with the dissenting judge below that the trial judge's failure to specifically address those inconsistencies did not constitute a failure to consider or give effect to them.

The Court held that even if there was error, the inconsistencies were not sufficiently significant to have caused a miscarriage of justice, as the threshold for establishing a miscarriage of justice through misapprehension of evidence requires that the error could have affected the outcome.

The appellant Crown appealed a decision of the British Columbia Court of Appeal which had set aside the respondent's sexual assault conviction and ordered a new trial.

The Court of Appeal majority had found the trial judge erred by using text messages exchanged between the complainant and the accused as prior consistent statements to corroborate the complainant's evidence, by failing to hold a voir dire to determine their relevance, and in the approach to the W.(D.) analysis.

The Supreme Court, by majority, allowed the appeal and restored the conviction, adopting the reasons of the dissenting judge in the Court of Appeal.

Justices Côté and Brown dissented and would have dismissed the appeal substantially for the reasons of the Court of Appeal majority.

The appellant pleaded guilty to a drug offence at trial, after which the trial judge entered a stay of proceedings on the basis of entrapment arising from a dial-a-dope operation.

The Court of Appeal set aside the stay and remitted the matter for sentencing, finding the trial judge had misapprehended the evidence and misapplied the legal test for entrapment.

The Supreme Court of Canada confirmed that the phrase "enters a verdict of guilty" in s. 691(2)(b) of the Criminal Code encompasses an order setting aside a permanent stay where that order is tantamount to entering a verdict of guilty, thereby grounding the appellant's appeal as of right.

Applying the framework from R. v. Ahmad, the Court held that the police had reasonable suspicion, before placing the call, that the phone number was being used for drug dealing, based on a detailed tip corroborated by vehicle and licence plate information linked to a person with an extensive history of suspected dial-a-dope activity.

The appeal was dismissed, a verdict of guilty entered, and the matter remitted for sentencing.

The appellant was acquitted at trial of dangerous driving causing death under s. 249(4) of the Criminal Code after the trial judge found reasonable doubt as to mens rea, despite finding the actus reus established.

The British Columbia Court of Appeal set aside the acquittal and entered a conviction, finding the trial judge committed an error of law.

The Supreme Court of Canada (4-1) dismissed the appeal, holding that the trial judge made two inter-related errors of law: he applied a wrong legal principle by treating momentariness of excessive speeding as categorically insufficient to establish mens rea, and he failed to apply the correct test from R. v. Roy by not assessing what a reasonable person would have foreseen and done in the accused's circumstances.

The dissent would have restored the acquittal, finding no identifiable legal error tainting the trial judge's reasonable doubt.

A Métis federal inmate challenged correctional authorities’ use of psychological and actuarial risk tools for Indigenous offenders, alleging statutory and Charter breaches.

The Court held that authorities breached their duty under s. 24(1) of the Corrections and Conditional Release Act by continuing to rely on the tools without taking reasonable steps to confirm validity for Indigenous persons.

The Court declined to find violations of ss. 7 or 15 of the Charter on the evidentiary record.

Declaratory relief was granted in light of the prolonged and ineffective grievance history, but no broader injunctive remedy was ordered.

The appellant challenged the constitutionality of Criminal Code dangerous offender provisions, arguing overbreadth under s. 7 and gross disproportionality under s. 12 of the Charter.

The majority held s. 753(1) permits considering future treatment prospects at designation and that s. 753(4.1) does not create an unconstitutional presumption of indeterminate detention.

The Court dismissed the appeal and upheld both provisions as constitutional, with a partial dissent that would have struck down s. 753(4.1) and ordered a new sentencing hearing.

In this criminal appeal, the Court considered when corroborative evidence can establish the threshold reliability required to admit hearsay under the principled exception.

The Crown sought admission of a co-accused’s video re-enactment implicating the respondent in two murders after the declarant refused to testify.

A majority held the trial judge relied on corroborative evidence that did not sufficiently answer the specific hearsay danger of fabrication, and concluded threshold reliability was not met.

The appeal was dismissed and the order for a new trial remained in place, with a dissent that would have restored the convictions.

The appeal addressed whether retrospective application of expanded sexual-offender prohibition orders in s. 161(1)(c) and (d) of the Criminal Code infringed the right to the lesser punishment under s. 11(i) of the Charter.

The Court held both amendments constituted punishment and therefore limited s. 11(i) when applied to pre-amendment offences.

Under s. 1, retrospective application of the no-contact condition in s. 161(1)(c) was not justified, but retrospective application of the Internet prohibition in s. 161(1)(d) was justified.

The appeal was allowed in part and the order was varied accordingly.

The Crown appealed an acquittal on a bestiality count arising from sexualized conduct involving an animal and a complainant.

The central issue was whether penetration is an essential element of bestiality under s. 160 of the Criminal Code.

The majority held that the term retained its established legal meaning requiring penetration, and found no clear legislative intent in the 1955 or 1988 amendments to expand the offence.

The Court emphasized that expanding criminal liability is a legislative function, not a judicial one.

The appeal was dismissed, with a dissent concluding penetration is not required.

In this criminal appeal as of right, the Court considered whether the confinement element required for first degree murder under s. 231(5)(e) was made out where the accused blocked the victim from escaping before the killing.

The Court held that the trial judge was entitled to find that the forcible or unlawful confinement was distinct and independent from the act of killing.

The appellate intervention substituting second degree murder was therefore unwarranted.

The conviction for first degree murder was reinstated and the appeal was allowed.

The Court held that probation orders attached to a sentence of imprisonment not exceeding two years are not invalidated by prior or subsequent sentences imposed on other occasions.

It interpreted section 731(1)(b) as referring to the term imposed at the sentencing hearing in question, while confirming that probation cannot accompany sentences imposed at one sitting that produce continuous custody over two years.

The appeals were dismissed and the impugned probation orders remained valid.