Gavin Johnston

The appellant, A.J., appealed his conviction for sexual assault, arguing that the trial judge engaged in prohibited stereotypical reasoning and uneven scrutiny of the evidence.

The Court of Appeal for Ontario dismissed the appeal, finding that the trial judge's assessment of the appellant's credibility was firmly rooted in the evidence and not based on stereotypes.

The court also found no uneven scrutiny, as the trial judge provided detailed and reasoned explanations for his credibility findings regarding both the complainant and the appellant.

The accused, Tyler Moore and Rhonda Moore, brought a Charter application alleging violations of their section 7 and 11(d) rights due to the unacceptable loss of crucial pole camera surveillance footage.

This footage was used by the police to obtain search warrants for their residence in a drug trafficking investigation.

The court found that while police were not required to obtain a general warrant for the pole camera (as it captured publicly viewable areas), the Ontario Provincial Police (OPP) were unacceptably negligent in failing to preserve the raw video data.

The officers' notes were deemed an inadequate substitute for the original footage.

As a remedy, the court denied the request for a stay of proceedings, finding it was not one of the "clearest of cases" where a fair trial was impossible.

Instead, the court ordered the excision of all paragraphs referring to the covert surveillance video from the Informations to Obtain (ITOs) sworn to obtain the search warrants.

The appellant was convicted of sexual assault against a 21-year-old complainant.

The appellant, aged 53, had invited the complainant to a motel room where he had planned a sexual encounter.

He provided alcohol to the complainant, who became severely intoxicated.

The appellant engaged in sexual contact with the complainant, who testified she was semi-conscious or in and out of consciousness throughout.

The appellant claimed the encounter was consensual and that he honestly believed the complainant was consenting.

The trial judge found the complainant was intoxicated and semi-conscious, to the appellant's knowledge, and therefore could not consent.

The appeal raised three grounds: (1) the trial judge failed to provide adequate assistance to the self-represented appellant by disallowing cross-examination regarding potential collusion; (2) the trial judge failed to provide sufficient reasons regarding the appellant's honest but mistaken belief in consent; and (3) the trial judge misapprehended evidence resulting in an unreasonable verdict.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.