Geneviève McInnes

The Crown appealed a sentencing decision in which the trial judge refused to impose a section 161 Criminal Code prohibition order against a respondent convicted of sexual assault and sexual interference.

The respondent had been found guilty of more than twenty acts of sexual intercourse with his step-daughter over a 2.5-year period when she was between six and eight years old.

The trial judge imposed a 6.5-year sentence but declined the prohibition order, citing concerns about personal liberty.

The appellate court found that the trial judge failed to adequately consider the respondent's continued risk to children and imposed a tailored section 161 prohibition order for 15 years from release.

The applicant, charged with conspiracy and drug trafficking offences following a complex police investigation, sought a stay of proceedings under s. 24(1) of the Charter, alleging his s. 11(b) right to be tried within a reasonable time was infringed.

The total delay from charge to the anticipated end of trial was 60 months.

The court applied the Jordan framework and transitional provisions, deducting periods of defence waiver and delay caused by discrete exceptional events, including a mistrial and a change of lead counsel.

The court concluded that the remaining delay was justified by the exceptional complexity of the case and the parties' reasonable reliance on the previous Morin framework.

The application was dismissed.

During a murder trial, the defence brought an application to exclude newly disclosed expert evidence relating to histological slide analysis conducted by a forensic pathologist the day before testifying.

The defence argued the late disclosure breached the accused’s right to make full answer and defence under s. 7 of the Charter because cross-examinations of earlier forensic witnesses had already been conducted based on the absence of such evidence.

Applying the framework in R. v. Bijelland, the court considered whether exclusion was necessary or whether lesser remedies could cure the prejudice.

The court found that admitting the evidence at the end of the Crown’s case would materially prejudice the defence strategy and that an adjournment or recall of witnesses would not remedy the unfairness.

The evidence derived from the late histological review was therefore excluded.

The Crown sought direction regarding the admissibility of evidence from a physician who recalled observing “rope marks” on a child during a visit in 1992 and being told by the child’s mother that the injuries were caused by a sibling who had since died.

The Crown argued the evidence formed part of a pattern of abusive conduct and was relevant to aggravated assault allegations within the charged timeframe.

The court held that linking the injuries to the accused required introducing evidence surrounding the sibling’s death, which had already been ruled inadmissible as prior discreditable conduct.

The probative value of the physician’s testimony was outweighed by its prejudicial effect, particularly the risk of propensity reasoning.

The evidence was therefore ruled inadmissible.

The Crown sought to introduce evidence of the accused's prior discreditable conduct and hearsay ante-mortem statements of his deceased children in a trial for first-degree murder and other offences.

The accused cross-applied to sever an obstruct justice count relating to the earlier death of his son.

The court granted the severance application, finding the evidence surrounding the son's death highly prejudicial.

The court admitted some prior discreditable conduct evidence, including physical abuse and threats, as vital narrative and to show a pattern of abusive control.

Certain ante-mortem statements were also admitted under the state of mind hearsay exception, while others were excluded.

The accused applied for permission to sit at counsel table during a jury trial rather than in the prisoner’s dock, arguing that seating in the dock could undermine the presumption of innocence and hinder communication with counsel.

The court reviewed competing authorities concerning the placement of an accused in the courtroom and emphasized that the traditional position is the prisoner’s dock, subject to the trial judge’s discretion.

The court held that removal from the dock should occur only in exceptional circumstances where necessary to permit full answer and defence and where no security concerns exist.

As no such exceptional circumstances were demonstrated and the courtroom configuration would obscure the accused from the jury if seated behind counsel, the application was refused.

The accused applied during jury selection for an order excluding unsworn prospective jurors from the courtroom while challenge-for-cause questions concerning potential racial bias were asked.

The defence argued that exclusion was necessary to prevent prospective jurors from becoming "schooled" by hearing repeated challenges and tailoring their responses.

The court considered the interaction between the inherent jurisdiction to exclude jurors and the statutory regime in s. 640(2.1) and s. 640(2.2) of the Criminal Code, as interpreted in prior decisions.

Finding that the defence concern related to juror schooling rather than preserving impartiality between the Crown and the accused, the court followed the approach in Sandham and exercised its discretion to exclude unsworn jurors while permitting rotating triers.

The accused, charged with the first-degree murder of his daughter, brought a pre-trial application to exclude expert opinion evidence suggesting starvation as a possible cause of death.

The accused argued the Crown provided late notice of this theory and that the underlying estimates of the victim's pre-death weight lacked scientific validity.

The court dismissed the application, finding that late notice did not warrant exclusion given the time remaining before trial, and that the experts' estimates, based on specialized experience rather than strict scientific testing, met the threshold reliability required for admissibility.

The Crown sought to admit statements made by the accused to police during his transport and subsequent interview regarding the death of his daughter.

The accused argued the statements were involuntary and obtained in breach of his ss. 7 and 10(b) Charter rights.

The Superior Court of Justice found the transport utterances inadmissible because the accused was not informed he was a murder suspect, vitiating his right to make an informed choice to remain silent.

While the station interview did not violate s. 10(b), the court excluded it under its residual discretion, finding its prejudicial effect outweighed its probative value due to the accused's repeated requests for counsel and the lack of inculpatory responses to police theorizing.

The appellant was convicted of armed robbery and related offences and sentenced to six years' imprisonment.

On appeal, he argued the trial judge erred by permitting the Crown to cross-examine its own witnesses on prior inconsistent statements, failing to give a W. (D.) instruction, and holding a mid-trial chambers discussion in his absence.

The Court of Appeal dismissed the conviction appeal, finding the cross-examination permissible, the jury instruction adequate, and applying the curative proviso to the accused's absence.

The sentence appeal was also dismissed as the sentence was fit.

The appellant appealed his conviction for second-degree murder and his sentence of life imprisonment with 14 years of parole ineligibility.

He argued that the trial judge's presiding over both his bail hearing and trial created a reasonable apprehension of bias, and that the jury charge contained errors regarding post-offence conduct, intent, and lacked balance.

The Court of Appeal dismissed the conviction appeal, finding no apprehension of bias and concluding that the jury charge, read as a whole, did not result in a miscarriage of justice.

The sentence appeal was also dismissed, as the trial judge made no errors in principle given the brutal, drug-related nature of the planned robbery and killing.