Jason Gordon Cyriel Dickson

The Court of Appeal for Ontario dismissed Jitesh Bhogal’s appeal from his conviction for first degree murder.

The appellant argued that the trial judge erred by not instructing the jury on the defence of extreme intoxication akin to automatism in relation to the alleged sexual assault, and by mischaracterizing expert evidence on the cause of death.

The Court found that there was no air of reality to the extreme intoxication defence on the evidence, and that any misstatements of the expert evidence did not cause substantial prejudice.

The conviction was upheld.

The Crown moved for a publication ban on the Court of Appeal's decision in R. v. Reimer, 2024 ONCA 519, which overturned a sexual assault conviction and contained references to the complainant's other sexual activity.

The motion was brought in light of the Supreme Court's decision in R. v. T.W.W., 2024 SCC 19, regarding court openness in s. 276 determinations.

The court applied the Sherman Estate test, finding the first component (serious risk to important public interest) met due to privacy concerns.

However, the second component (necessity) was not met as alternative measures (anonymization, removal of biographical info, prior in camera proceedings and publication ban at trial) sufficiently mitigated the risk.

The third component (proportionality) also weighed against the ban, as the benefits did not outweigh the significant negative effects on the open court principle and the precedential value of the decision, which provides guidance on complex issues related to consent and s. 276.

The motion for a publication ban was dismissed.

The appellant, Jeffrey Reimer, appealed his convictions for sexual assault with a weapon, unlawful confinement, and extortion.

The core issue on appeal was the trial judge's exclusion of sexualized text messages exchanged between the appellant and the complainant under s. 276 of the Criminal Code.

The trial judge had ruled the messages irrelevant, offered for an illegal purpose (proving prior consent), and dependent on prohibited "twin-myth" inferences.

The Court of Appeal found that the trial judge erred in excluding this evidence.

The Court clarified that statements of present intention to engage in future sexual activity are logically relevant to the issue of consent and do not automatically trigger the "twin-myth" inference or violate the contemporaneity rule, as their relevance does not stem from the sexual nature of the activity itself but from the stated intentions.

Consequently, the appeal was allowed, the convictions were set aside, and a new trial was ordered.