James Weppler

During a jury trial for attempted murder, the trial judge ruled on two issues regarding jury instructions.

First, the judge held that the Crown's cross-examination of the accused regarding his failure to mention self-defence to police violated his right to silence.

The judge instructed the jury to disregard that portion of the cross-examination.

Second, the judge ruled that because the indictment for attempted murder was drafted simpliciter, there were no lesser and included offences to leave with the jury.

During a jury trial for sexual assault, the accused brought a motion for a directed verdict of acquittal on one count, arguing there was no evidence he was awake during the alleged touching and therefore no proof of the required intent.

The complainant testified that she awoke to find a hand under her clothing but could not say whether the accused was awake.

Applying the test from Monteleone, the court held that where there is any admissible evidence that could support a conviction if believed by a properly instructed jury, a directed verdict is inappropriate.

The conflicting evidence regarding whether the accused was awake raised a factual issue for the jury to resolve.

The motion for a directed verdict was therefore dismissed.

The Crown brought a motion under s. 486.1(2) of the Criminal Code seeking to permit the complainant, who was slightly over the age of 18, to testify by closed-circuit television with the assistance of a support person.

The Crown argued the accommodation would reduce trauma and facilitate a full and candid account of events.

The court held that for adult witnesses the provision is discretionary and requires an adequate evidentiary basis.

The evidence filed was of limited assistance and the court expressed concerns regarding courtroom logistics and potential prejudice in a jury trial.

The court adjourned the application to the commencement of the trial to permit further inquiry before determining whether testimonial aids would be appropriate.

The Crown brought a motion under s. 486.1(2) of the Criminal Code seeking an order permitting the complainant, who had recently turned 18, to testify by closed-circuit television with a support person.

The court considered whether an evidentiary basis existed to exercise its discretion to allow testimonial aids for a witness over 18.

While acknowledging the stress of testifying and reviewing a counselling report suggesting the measure could assist, the court found the evidentiary record insufficient and noted concerns about courtroom logistics and the fairness implications of a jury trial.

The court adjourned the application to the commencement of trial so that the complainant could be questioned and an informed determination made regarding the use of testimonial aids.

In a prosecution for sexual assault and sexual touching involving a minor complainant, the court ruled on pre‑trial evidentiary motions.

The defence sought permission under s. 276 of the Criminal Code to cross‑examine the complainant about viewing pornographic material on a computer, while the Crown sought to introduce evidence of prior discreditable conduct by the accused to show grooming and provide narrative context.

The court held that accessing pornography did not constitute “sexual activity” within the meaning of s. 276 and permitted limited questioning on that topic, subject to sanitizing explicit titles and appropriate jury instructions addressing the twin myths.

The Crown’s application to introduce evidence of teasing, sexual comments, and provision of alcohol as discreditable conduct was dismissed because the probative value was outweighed by the risk of prejudice and lacked a sufficient nexus to the charged offences.

The accused brought an application under s. 278.3 of the Criminal Code seeking production of third‑party records from a psychologist and a children’s aid society relating to the complainant in a sexual assault prosecution.

The defence argued the records were likely relevant to credibility and reliability because the complainant had stated he sometimes “made things up” or misinterpreted events.

The court applied the framework from R. v. Mills and R. v. O’Connor governing production of confidential records and held that the threshold of likely relevance was met for the psychologist’s records.

Those records were ordered produced to the judge for review for the period April 1, 2009 to July 24, 2013.

Although the evidentiary basis for production of children’s aid society records was not otherwise established, the court ordered production of the records already obtained by police because they had been improperly requested and reviewed during the investigation.