Jennifer K. Penman

The Crown appealed an acquittal on four counts of sexual offences involving a five-year-old complainant.

The trial judge found the Crown had not proven its case beyond a reasonable doubt.

The Crown advanced four grounds of appeal: (1) erroneous approach to the complainant's testimony; (2) improper imposition of a memory requirement for adoption of the videotaped statement under s. 715.1 of the Criminal Code; (3) reliance on evidence outside the trial record; and (4) findings of fact without evidentiary foundation.

The Court of Appeal dismissed all grounds of appeal, finding no legal error and emphasizing the deference owed to trial judges on credibility findings and evidentiary assessments.

The appellant was convicted of several offences involving the possession of a firearm and a dangerous weapon following a trial by judge and jury.

On appeal, the appellant challenged the validity of search warrants obtained under the Controlled Drugs and Substances Act and the Criminal Code, which were based on information from a confidential informant, police database checks, and surveillance.

The Crown conceded that the redacted information affidavit could not support the warrants and sought review of the unredacted affidavit under step six of the Garofoli procedure.

The application judge dismissed the section 8 Charter application and admitted the evidence.

The appellant appealed on two grounds: first, that he was not permitted to challenge the sub-facial validity of the redacted portions of the information to obtain; and second, that amicus curiae should have been appointed during the ex parte process.

The Court of Appeal dismissed the appeal, finding that the appellant was permitted to make a sub-facial challenge and that the judicial summary provided a meaningful basis to challenge the reliability of the confidential informant's information.

The court also held that the appointment of amicus curiae is discretionary and exceptional, not a constitutional necessity.

Sentencing following convictions for four counts of sexual assault and one count of sexual interference arising from incidents involving three male complainants over a nine-year period in the modelling industry.

The court held that, under the version of s. 742.1 then in force, conditional sentences were unavailable for the two sexual assault counts involving the adult complainant because sexual assault was a serious personal injury offence as defined in s. 752.

Balancing denunciation and deterrence against the offender's lack of record, community support, medical issues, publicity-related consequences, and the age of the offences, the court imposed a six-month conditional sentence on one count, concurrent 18-month conditional sentences on two further counts, and a concurrent 30-day intermittent custodial sentence with two days' credit on the remaining two counts.

DNA, firearms prohibition, and SOIRA orders were also made.

The applicant sought leave to reopen his sentence appeal on sexual assault and voyeurism convictions, arguing that a subsequent overturning of related domestic assault convictions constituted a change in circumstances warranting reconsideration.

The applicant sought credit for pre-sentence custody previously applied to the now-quashed domestic assault conviction and argued the sentencing judge had improperly considered the domestic assault conviction as an aggravating factor.

The court dismissed the application, holding it lacked jurisdiction to reopen an appeal already decided on its merits and that, even if jurisdiction existed, the interests of justice would not support reopening.

The accused, M.O., was charged with aggravated assault and firearms offences.

He brought a motion on a voir dire seeking to exclude fingerprint evidence and a derivative statement, arguing that the police conducted an unreasonable search in breach of his Section 8 Charter rights.

The police accessed his fingerprints, taken six years prior when he was a young offender for a charge that was later withdrawn, outside the access period specified in the Youth Criminal Justice Act (YCJA).

The court found that the police unlawfully accessed the records, constituting an unreasonable search.

Applying the R. v. Grant factors, the court determined that the systemic institutional indifference to YCJA provisions and the high expectation of privacy for young offender records outweighed the societal interest in adjudicating the serious offence on its merits.

Consequently, the fingerprint evidence and the derivative statement were excluded.

The defendant, charged with second-degree murder, sought to introduce expert psychiatric evidence on the "fight or flight" reaction and the effects of marijuana to support self-defence and provocation.

The court dismissed the application, finding an insufficient evidentiary foundation for the proposed expert testimony to be relevant and necessary to the specific facts of the case.

The court also expressed obiter doubts about the necessity of such evidence, particularly regarding the "fight or flight" response, which is generally within the common experience of a jury.

The applicant, convicted of sexual assault and sexual exploitation, brought a Charter challenge against s. 742.1 of the Criminal Code, which prohibits conditional sentences for serious personal injury offences.

The applicant argued the provision violated s. 7 (overbreadth) and s. 12 (cruel and unusual punishment) of the Charter.

The court dismissed the application, finding the provision was rationally connected to its purpose of denunciation and deterrence, and did not impose a grossly disproportionate sentence on the applicant or reasonably hypothetical offenders.

The offender was convicted of four counts of trafficking in cocaine.

At sentencing, he brought a Charter application challenging the constitutionality of s. 742.1(c) of the Criminal Code, which eliminated conditional sentences for offences with a maximum penalty of 14 years or life, arguing it violated ss. 7 and 12 of the Charter.

The court dismissed the application, finding that the provision did not result in grossly disproportionate sentences and was not overbroad.

The offender was sentenced to 90 days of intermittent imprisonment followed by two years of probation.

The appellant appealed his convictions for assault and breach of probation arising from a domestic dispute.

At trial, the judge erroneously excluded exculpatory statements made by the appellant to a police officer.

The Crown conceded the error but argued the curative proviso should apply.

The Court of Appeal held that the error was not harmless or trivial, as the convictions relied heavily on the complainant's credibility, which was contested.

The curative proviso could not be applied, and the convictions were quashed.

The applicants sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay in their criminal trial for production and possession of controlled substances.

The court found a total delay of 44.5 months, with 10 months attributable to egregious Crown delay and 9 months to institutional delay.

Despite minimal prejudice to fair trial rights, the significant impact on the applicants' liberty and security interests, exacerbated by the Crown's failure to manage the case responsibly, led the court to conclude that the right to be tried within a reasonable time was violated.

A stay of proceedings was granted.

During a murder trial, the defence brought an application to exclude newly disclosed expert evidence relating to histological slide analysis conducted by a forensic pathologist the day before testifying.

The defence argued the late disclosure breached the accused’s right to make full answer and defence under s. 7 of the Charter because cross-examinations of earlier forensic witnesses had already been conducted based on the absence of such evidence.

Applying the framework in R. v. Bijelland, the court considered whether exclusion was necessary or whether lesser remedies could cure the prejudice.

The court found that admitting the evidence at the end of the Crown’s case would materially prejudice the defence strategy and that an adjournment or recall of witnesses would not remedy the unfairness.

The evidence derived from the late histological review was therefore excluded.

In a prosecution for first degree murder, the Crown brought an application seeking admission of several out-of-court statements made by the deceased to friends and associates describing a deteriorating relationship with the accused and expressing fear that the accused and his family intended to kill him.

The court conducted a voir dire on the admissibility of the statements under the hearsay rule.

The court held that the statement expressing fear that the accused would kill the deceased with his own guns was admissible under the traditional state of mind exception to the hearsay rule.

The remaining statements describing prior disputes, business dealings, and a recent altercation between the deceased and the accused were admitted under the principled exception because necessity was established and sufficient indicia of reliability existed through corroborating evidence and contextual circumstances.

The probative value of the evidence relating to animus and motive outweighed any prejudicial effect, including concerns about prior discreditable conduct.

The accused, a Black man charged with the murder of an Asian man, brought a motion to allow multiple-choice questions to be put to prospective jurors during the challenge for cause process, arguing the standard Parks question is insufficient to uncover subconscious racial bias.

The Crown opposed the motion, arguing there was no evidentiary basis to depart from the standard question.

The court dismissed the motion, finding no evidence that the proposed multiple-choice format would be an improvement over the standard Parks question, but directed that jurors be instructed they may provide detailed answers rather than just 'yes' or 'no'.

Sentencing decision following guilty pleas to 36 counts arising from a prolonged pattern of drugging and sexually assaulting 18 vulnerable victims, many of whom were sex-trade workers, while secretly videotaping the assaults.

The court treated denunciation and deterrence as the primary sentencing objectives, emphasizing the offender's planning, exploitation of vulnerability, abuse of professional pharmaceutical knowledge, and the unprecedented scale of the offending.

Expert psychiatric evidence diagnosed paraphilic coercive disorder and sexual sadism, with low recidivism risk only if treatment and sobriety were maintained.

A global sentence of 18 years was imposed, reduced by enhanced pre-sentence custody credit to 14 years remaining, with ancillary DNA, weapons prohibition, and lifetime SOIRA orders, but the Crown's application to delay parole eligibility was dismissed.

The Crown sought direction regarding the admissibility of evidence from a physician who recalled observing “rope marks” on a child during a visit in 1992 and being told by the child’s mother that the injuries were caused by a sibling who had since died.

The Crown argued the evidence formed part of a pattern of abusive conduct and was relevant to aggravated assault allegations within the charged timeframe.

The court held that linking the injuries to the accused required introducing evidence surrounding the sibling’s death, which had already been ruled inadmissible as prior discreditable conduct.

The probative value of the physician’s testimony was outweighed by its prejudicial effect, particularly the risk of propensity reasoning.

The evidence was therefore ruled inadmissible.

The Crown sought a ruling that an accused’s inculpatory statement made to a police officer while awaiting medical treatment was voluntary and admissible.

The statement was made after the accused had earlier invoked the right to silence during a recorded interview and after consulting counsel.

The defence argued the statement was involuntary and obtained in breach of ss. 7 and 10(b) of the Charter, emphasizing gaps in the officer’s notes and inconsistencies in recollection.

The court applied the contextual voluntariness analysis and concluded that uncertainties about the unrecorded portions of the conversation and the officer’s unreliable recollection raised a reasonable doubt about voluntariness.

The statement was ruled inadmissible and the Charter exclusion argument became moot.

The Crown sought to introduce evidence of the accused's prior discreditable conduct and hearsay ante-mortem statements of his deceased children in a trial for first-degree murder and other offences.

The accused cross-applied to sever an obstruct justice count relating to the earlier death of his son.

The court granted the severance application, finding the evidence surrounding the son's death highly prejudicial.

The court admitted some prior discreditable conduct evidence, including physical abuse and threats, as vital narrative and to show a pattern of abusive control.

Certain ante-mortem statements were also admitted under the state of mind hearsay exception, while others were excluded.

The accused applied for permission to sit at counsel table during a jury trial rather than in the prisoner’s dock, arguing that seating in the dock could undermine the presumption of innocence and hinder communication with counsel.

The court reviewed competing authorities concerning the placement of an accused in the courtroom and emphasized that the traditional position is the prisoner’s dock, subject to the trial judge’s discretion.

The court held that removal from the dock should occur only in exceptional circumstances where necessary to permit full answer and defence and where no security concerns exist.

As no such exceptional circumstances were demonstrated and the courtroom configuration would obscure the accused from the jury if seated behind counsel, the application was refused.

The accused applied during jury selection for an order excluding unsworn prospective jurors from the courtroom while challenge-for-cause questions concerning potential racial bias were asked.

The defence argued that exclusion was necessary to prevent prospective jurors from becoming "schooled" by hearing repeated challenges and tailoring their responses.

The court considered the interaction between the inherent jurisdiction to exclude jurors and the statutory regime in s. 640(2.1) and s. 640(2.2) of the Criminal Code, as interpreted in prior decisions.

Finding that the defence concern related to juror schooling rather than preserving impartiality between the Crown and the accused, the court followed the approach in Sandham and exercised its discretion to exclude unsworn jurors while permitting rotating triers.

The accused, charged with the first-degree murder of his daughter, brought a pre-trial application to exclude expert opinion evidence suggesting starvation as a possible cause of death.

The accused argued the Crown provided late notice of this theory and that the underlying estimates of the victim's pre-death weight lacked scientific validity.

The court dismissed the application, finding that late notice did not warrant exclusion given the time remaining before trial, and that the experts' estimates, based on specialized experience rather than strict scientific testing, met the threshold reliability required for admissibility.