Jennifer Anne Holmes

The applicants, charged with gang sexual assault and other offences, brought a constitutional challenge to the common law principle that a person cannot consent to the intentional infliction of bodily harm during sexual acts, including BDSM.

They argued this principle, particularly as affirmed in R. v. Zhao, violated their Charter rights to freedom of expression (s. 2(b)), liberty and security of the person (s. 7), and equality (s. 15).

The court dismissed the application, finding that violence is not a protected form of expression, that the right to liberty does not extend to inflicting bodily harm, and that BDSM is not an analogous ground for discrimination under s. 15.

The court upheld the common law principle as constitutional and justifiable under s. 1 of the Charter.

The accused, Christopher Filiault, pleaded guilty to failing to remain at the scene of a fatal accident and obstructing justice after his vehicle struck and killed a seven-year-old child.

The court considered aggravating factors, including the profound impact on the victim's family and the accused's attempts to hide his involvement, and mitigating factors such as his guilty plea, genuine remorse, and positive prospects for rehabilitation.

The central issue was whether a conditional sentence was appropriate, balancing denunciation and deterrence with rehabilitation.

The court ultimately imposed a 12-month conditional sentence with strict house arrest and GPS monitoring, followed by 12 months probation, along with a 3-year driving prohibition, DNA order, and weapons prohibition.

Curtis Elliott applied for a second bail review under s. 520 of the Criminal Code, facing 33 charges related to firearms trafficking.

The application was dismissed.

The court found no material change in circumstances to displace the need for detention on secondary grounds, despite arguments regarding new sureties, electronic monitoring, treatment availability, the COVID-19 pandemic, and the passage of time.

The court acknowledged the pandemic's impact and the principle of proportionality in detention but concluded that the scheduled trial dates mitigated the risk of disproportionate detention, outweighing the substantial public safety risks.

The Crown applied under s. 486.2(2) of the Criminal Code for a testimonial aid (screen) for the complainant, A.F., in a historical sexual assault trial.

The complainant expressed extreme fear and emotional distress at the prospect of facing the respondent, citing panic attacks, sleepless nights, flashbacks, and increased alcohol consumption after the preliminary hearing.

The respondent opposed the application, asserting his common law right to face his accuser and arguing that the Crown had not provided persuasive evidence that the screen was necessary to obtain a full and candid account from the witness.

The court granted the application, finding that the screen would facilitate a full and candid account from the witness, considering her age, diagnosis of post-traumatic stress disorder by her family physician, and the nature of the allegations.

The court also emphasized society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process.

During a murder trial, the court was required to determine the admissibility of a statement made by the accused to police after earlier statements had been excluded due to a breach of s. 10(a) of the Charter.

The defence argued the later statement was tainted by the earlier constitutional breach and was not voluntary.

Applying the analytical framework for tainted statements and the common law confessions rule, the court held that the earlier breach had been cured by intervening events, including the accused’s arrest for murder and multiple opportunities to consult counsel.

The court further found the police interview tactics did not constitute inducements or oppression and did not overbear the accused’s will.

The statement was proven voluntary beyond a reasonable doubt and was admissible.

During a murder trial, the Crown sought to admit videotaped out‑of‑court statements made by a witness to undercover officers in a “Mr. Big” operation as substantive evidence under the principled hearsay exception.

The witness recanted or professed lack of memory during cross‑examination under s. 9(2) of the Canada Evidence Act.

The court held that although necessity was established, the Crown failed to demonstrate threshold reliability on a balance of probabilities.

The witness’s repeated claims of memory loss prevented meaningful cross‑examination and undermined the jury’s ability to assess reliability.

Additionally, the inducements and incentives inherent in the “Mr. Big” scenario raised serious concerns about the trustworthiness of the statements.

The videotaped statements were therefore ruled inadmissible as substantive evidence.

In a voir dire during a murder prosecution, the accused sought to exclude three police statements on the basis of Charter violations.

Police had told the accused he was being questioned in relation to a missing persons investigation when they in fact believed the investigation concerned homicides.

The court found this mischaracterization violated s. 10(a) of the Charter by failing to properly inform the accused of the reason for his detention.

Applying the framework in R. v. Grant, the court held the breach was serious, significantly affected the accused’s Charter-protected interests, and that exclusion would not undermine adjudication on the merits.

Statements given during the July 2008 interviews were excluded, while a later statement given after arrest for murder was ruled admissible.