Jack McCulligh

This criminal trial concerned charges of sexual assault, using an imitation firearm, uttering death threats, and forcible confinement.

The case hinged on the credibility of the complainant, Zoe Pessoa, and the accused, Alpha McLeod, who claimed the sexual activity was consensual and arranged via an escort website.

The court found Mr. McLeod's testimony to be inconsistent and contradictory, disbelieving his account.

Conversely, the complainant's evidence was found credible and reliable, supported by consistent testimony and corroborating facts.

Mr. McLeod was found guilty on counts of sexual assault, uttering death threats, and forcible confinement.

In a criminal trial involving human trafficking and sex work offences, the trial judge issued a preliminary ruling on jury selection procedures following the Supreme Court of Canada's decision in R. v. Chouhan.

The court held that counsel, rather than the trial judge, would pose the challenge for cause questions to prospective jurors individually, without providing the questions in advance.

The court also permitted offence-based questions regarding the victim's race and occupation as a sex trade worker, and outlined the procedure for exercising the stand-by power under section 633 of the Criminal Code to maintain public confidence in the administration of justice.

M.K. sought a review of a detention order for criminal harassment and breach of recognizance, arguing the Justice of the Peace failed to adequately consider her mental illness and the necessity of treatment.

The court found no error in law or inappropriate decision by the Justice of the Peace, noting the existing supervisory and treatment plan was ineffective given M.K.'s repeated breaches and unwillingness to accept treatment.

The court dismissed the application for review, stating that M.K.'s continued detention was necessary on secondary grounds for public protection, but indicated willingness to reconsider if a more structured and effective treatment plan addressing the raised concerns was presented.

The appellant appealed an NCR verdict on charges including criminal harassment and breach of probation, arguing principally that the actus reus of criminal harassment had not been proven.

The Summary Conviction Appeal Court held that the blended procedure used at trial, although unusual in light of the Swain principle, caused no prejudice because the trial judge substantially segregated the actus reus analysis from mental disorder evidence.

Applying the established elements of criminal harassment under s. 264, the court found repeated and persistent communications directed to a correctional officer, subjective fear on the complainant's part, and objective reasonableness of that fear in the full context.

The appeal was dismissed.

The accused was charged with sexual assault and sexual exploitation involving a young person with whom he lived.

The court assessed the credibility of the complainant and the accused, noting significant inconsistencies in the complainant's statements to police and during testimony, as well as a potential motive to fabricate.

While DNA evidence of the accused's semen was found on the complainant's underwear, expert testimony could not rule out transference from other clothing in a communal laundry basket.

The court found the accused's testimony to be tailored to minimize his authority and contact with the complainant, but ultimately concluded that the evidence, when considered holistically, left a reasonable doubt on both charges.

The accused was found not guilty.

The court declared a mistrial in a judge-alone criminal trial for sexual assault and threatening death.

The complainant, K.M., testified with a Punjabi interpreter, but it became evident during the trial that she had sufficient English proficiency.

This raised concerns about the necessity of the interpreter under Charter s. 14 and the trier of fact's ability to assess credibility through an interpreter.

The court found that a "needs" assessment for interpreter services was not properly conducted, and K.M. should have testified in English with stand-by interpreter assistance.

Given the trial's focus on credibility and the material interference of the interpretation filter, a mistrial was deemed the appropriate remedy to prevent a miscarriage of justice.

The accused was on trial for sexual assault and threatening death.

The complainant testified through a Punjabi interpreter.

During the trial, it became evident that the complainant was capable of testifying in English.

The court noted that the right to an interpreter under s. 14 of the Charter requires a necessity criterion to be met.

Because the use of an interpreter materially interfered with the court's ability to make credibility determinations, and the trial was still in its early stages, the court declared a mistrial so the complainant could testify in English with a stand-by interpreter.

Sentencing decision following convictions for possession of child pornography, accessing child pornography, and making child pornography available through a peer-to-peer sharing program.

The court accepted a joint submission for concurrent mandatory minimum custodial sentences after considering the offender's mental health difficulties, social isolation, lack of criminal record, limited collection size, lack of remorse, and the sharing aspect of the offences.

The court emphasized denunciation and deterrence as the dominant sentencing principles in child pornography cases.

Ancillary orders were imposed, including lifetime sex offender registration, a DNA order, a victim surcharge, a 20-year prohibition order, forfeiture of computer equipment, and a two-year probation order with restrictive internet and contact conditions.

The accused was charged with possessing, accessing, and making child pornography available through a peer-to-peer file sharing program.

The court found the accused's trial denial of knowledge not credible in light of his videotaped police statement, the organization and descriptive file names of the images, recent access data, and expert forensic evidence showing the files were accessible through Bearshare.

The defence theory that the images came from scavenged hard drives or malware was rejected because both experts found no evidence of external unauthorized downloading and the files were logically organized by the user.

Applying the governing criminal burden and credibility framework, the court found knowledge, access, and making available proved beyond a reasonable doubt.

During a criminal trial, the Crown sought to admit a videotaped statement given by the accused following arrest.

A voir dire was held to determine whether the statement was voluntary and whether the accused possessed an operating mind at the time it was made.

The defence argued that the statement was involuntary due to alleged oppressive conditions and medication affecting the accused’s cognitive functioning, and further submitted that the Crown failed to call all relevant officers.

The court held that the Crown was not required to call every officer who had incidental contact with the accused and found no evidence of threats, promises, inducements, or oppressive conditions.

After reviewing the video evidence, the court concluded beyond a reasonable doubt that the accused understood the caution, possessed sufficient cognitive capacity, and gave the statement voluntarily.

The defendant, age 63, was convicted after trial of two counts of sexual touching, one count of sexual assault, and one count of invitation to sexual touching involving two young male victims (ages 8 and 10) over a six-month period in early 2011.

The defendant was a tenant in the home of the boys' grandmother.

The Crown sought a custodial sentence of 5-6 years, while the defence sought time served.

The court imposed a sentence of 3 years custody concurrent, less pre-trial custody of 26 months on an enhanced 1.5:1 credit ratio, resulting in a net sentence of 10 months, followed by one year probation with conditions including no contact with the victims and their family members, DNA sampling, a 10-year weapons prohibition, and lifetime registration on the Sexual Offender Registry.

A 63-year-old defendant was charged with two counts of sexual assault, two counts of sexual interference, and one count of invitation to sexual touching against two young boys (ages 10 and 12 at the time of the alleged incidents) who lived in the same household between early 2011 and March 31, 2012.

The allegations involved unwanted touching of the boys' genitals and buttocks, exposure to pornography, and requests for sexual acts.

The defendant denied all allegations.

The court applied the W.D. test and found the defendant's evidence not credible and raising no reasonable doubt.

The court accepted the evidence of both complainants and found the Crown had proven all essential elements of each offence beyond a reasonable doubt, resulting in convictions on all counts.

The respondent was convicted at trial based on overwhelming circumstantial evidence.

The Summary Conviction Appeal Court (SCAC) ordered a new trial, finding the trial judge failed to consider a second police officer's evidence regarding the respondent's broken zipper, which the SCAC judge believed supported the respondent's alibi.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the SCAC judge, not the trial judge, had misapprehended the evidence.

The trial judge had properly considered the evidence and rejected the alibi.

The convictions were restored.

The appellant appealed convictions for assault with a weapon and uttering a death threat arising from a domestic incident.

At trial, conflicting evidence was presented regarding a prior incident involving the complainant, the accused, and responding police officers, raising significant credibility issues.

The trial judge acknowledged the conflicts but declined to make findings about them, instead concluding the complainant was credible and convicting the accused.

On appeal, the court held that the credibility assessment could not properly be made without resolving the contradictions between the complainant’s testimony and the police evidence.

The failure to consider and make findings on these material conflicts constituted a palpable and overriding error affecting the safety of the convictions.

A new trial was ordered.

The accused, a 57-year-old dentist and artistic director of a Polish-Canadian children's dance troupe, was charged with possessing child pornography contrary to section 163.1(4) of the Criminal Code.

The Crown alleged that four photographs taken by the accused during a dance competition trip to Montreal depicted children under 18 years of age with their sexual organs or anal regions exposed as the dominant characteristic, for a sexual purpose.

The accused claimed the photographs were innocent documentation of group activities and horseplay.

The court found that the Crown established all essential elements of the offence beyond a reasonable doubt and rejected the accused's evidence as lacking credibility and logical consistency.

The court also found that the statutory defences under section 163.1(6) did not apply.

The accused was convicted.

The appellant appealed his conviction and sentence.

The Court of Appeal found no error in the trial judge's weighing of the evidence or application of the burden of proof.

The court also found the sentence imposed reflected no error in principle and fell within the appropriate range.

The appeal from conviction and sentence was dismissed.