Jason Pilon

The accused brought a pre‑trial application under s. 276 of the Criminal Code seeking leave to adduce evidence of prior consensual sexual activity with the complainant in a sexual assault prosecution.

The proposed evidence concerned a previous incident of consensual “rough sex,” including biting and scratching, which the defence argued was relevant to credibility and necessary to understand the nature of the parties’ relationship in support of a consent defence.

The court held the proposed evidence effectively relied on the prohibited inference that because the complainant previously consented to similar activity, she was more likely to have consented on the charged occasion.

The court further found the evidence lacked sufficient relevance and significant probative value under s. 276(2) and that the factors in s. 276(3) weighed against admission.

The application was dismissed.

In a second-degree murder prosecution, the court conducted a voir dire to determine the admissibility of two police interviews with the accused.

The defence conceded voluntariness of the first statement but argued its prejudicial effect outweighed probative value, while challenging the voluntariness of the second statement based on inducements and oppressive interrogation tactics.

Applying the confessions rule and the principles in Oickle and Singh, the court found that the accused’s will was never overborne despite repeated assertions of the right to silence and persistent police questioning.

Both statements were therefore voluntary.

However, the court held that significant portions of the first interview containing police commentary, opinion, and criticism of the accused’s exercise of the right to silence must be edited before being admitted, and the second statement was intended primarily for potential use in cross‑examination rather than for its contents.

Sentencing decision for robbery and multiple breaches of recognizance arising from a late-night convenience store robbery in which the offender threatened to shoot the clerk with a purported firearm.

The offender pleaded guilty and had served approximately 16 months of pre‑trial custody, credited as two years.

The court considered the offender’s extensive criminal record alongside Gladue factors, including a traumatic upbringing, substance abuse, and systemic issues affecting Indigenous offenders.

Applying the principles from Gladue, Wells, and Ipeelee, the court found the punitive objectives of sentencing had been satisfied by pre‑trial detention.

A suspended sentence with three years’ probation was imposed, with rehabilitative and community‑based conditions.

The Crown appealed a summary conviction acquittal for refusing to provide a roadside breath sample under s. 254(5) of the Criminal Code.

The trial judge had found that the accused’s statement that he would not provide a sample without first speaking to a lawyer constituted an equivocal refusal and that the Crown failed to prove the required mens rea beyond a reasonable doubt.

On appeal, the court held that the trial judge correctly applied the governing law and properly assessed credibility under the framework in R. v. W.(D.).

The appellate court clarified that the decision did not create a precedent permitting suspects to consult counsel before providing a roadside sample, but rather turned on the specific factual finding that the accused’s response was ambiguous.

Finding no reversible error, the court declined to interfere with the acquittal.

The appellant appealed his conviction for driving with a blood alcohol concentration exceeding 80 milligrams under s. 253(1)(b) of the Criminal Code and the sentence imposed following a trial in the Ontario Court of Justice.

The Crown cross‑appealed the acquittal on the related impaired driving charge under s. 253(1)(a), arguing the trial judge erred in failing to rely on uncontradicted expert toxicology evidence to infer impairment.

The Superior Court held that the trial judge committed no legal or factual error in admitting the accused’s statements, inferring operation of the vehicle, or concluding that the evidence did not prove impairment beyond a reasonable doubt despite the expert report.

The court affirmed that a breathalyzer reading or expert opinion on blood alcohol concentration alone does not automatically establish impairment without considering the totality of the evidence.

The sentence of an $1,500 fine, 18‑month driving prohibition, and three years’ probation was found to be within the acceptable range.

Both the defence appeal and the Crown appeal were dismissed.

The accused pleaded guilty to failing to stop for police and dangerous driving following a high-speed pursuit involving multiple police agencies.

The offender, a First Nations individual, had a prior record involving driving-related offences but had undertaken significant rehabilitation efforts including completing an alcohol treatment program and attending Alcoholics Anonymous.

The court considered the sentencing principles under s. 718.2(e) of the Criminal Code and the Gladue framework, weighing denunciation and deterrence against rehabilitation and the offender’s background circumstances.

The judge concluded that community safety would not be endangered and that a conditional sentence was appropriate for the dangerous driving offence.

The offender received credit for pre-trial custody, a conditional sentence order, probation, and a driving prohibition.