Jaime Mor

The appellant, J.J., appealed a sexual assault conviction, arguing the trial judge improperly used transcripts of the complainant's police statement and preliminary inquiry evidence for credibility assessments.

The transcripts were provided to the trial judge solely to assist in recalling portions put to the complainant during viva voce evidence.

However, the trial judge considered the entirety of the transcripts, including passages not introduced in evidence, to find the complainant's "three interrogations" internally consistent, thereby preferring her evidence and rejecting the accused's.

The Court of Appeal found this improper use rendered the trial fundamentally unfair, allowed the appeal, and ordered a new trial.

The Crown brought an application to vacate the preliminary inquiry date and remand the accused to Superior Court following amendments to the Criminal Code effective September 19, 2019, which restricted preliminary inquiries to offences carrying a maximum sentence of fourteen years or more.

The accused had elected for trial by judge and jury with a preliminary inquiry prior to the amendments coming into force.

The court considered whether the amendments applied retrospectively to cases already in the system.

The court found that a Superior Court decision on a prerogative writ application (R. v. R.S., 2019 ONSC 5497) was binding authority establishing that the amendments applied retrospectively as procedural changes affecting court jurisdiction.

The Crown's application was allowed, the preliminary inquiry was vacated, and the accused was given the opportunity to re-elect pursuant to section 536(2.1) of the Criminal Code.

The accused was charged with possession of fentanyl contrary to s. 4(1) of the Controlled Drugs and Substances Act.

She had submitted counterfeit fentanyl patches to a pharmacy on three occasions to obtain legitimate fentanyl patches to which she was not entitled, as part of her abuse of the medication.

The Crown sought a conditional sentence of four to six months; the defence sought a conditional discharge.

The court imposed a suspended sentence with 12 months probation, finding that while a discharge was not appropriate given the sophistication of the offending and the opioid crisis, a custodial sentence was unnecessary given the accused's significant rehabilitative efforts post-arrest.