Jeremy Schaffer

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.

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.

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 Crown brought applications under s. 486(2) of the Criminal Code to permit child complainants to testify by closed‑circuit television and under s. 715.1 to admit their video‑recorded statements.

The complainants were between nine and eleven years old and their statements had been recorded shortly after the alleged incidents.

The defence did not oppose the legal basis for the applications but sought procedural safeguards regarding the functioning of the technology and guidance regarding the witnesses’ obligation to tell the truth.

The court confirmed the presumption of testimonial capacity for witnesses under 14 under s. 16.1 of the Canada Evidence Act and directed that the children promise to tell the truth without questioning about their understanding of the promise.

The court granted the Crown’s requests and ordered the procedure to proceed accordingly.

The Crown appealed an acquittal on charges involving alleged sexual touching of two minors.

The trial judge had rejected the accused’s evidence as unreliable while fully accepting the complainants’ testimony, yet concluded the Crown had not proven the touching was for a sexual purpose.

The appeal court held that the trial judge’s reasons were insufficient because they failed to explain how, after accepting the complainants’ evidence and rejecting the accused’s testimony, the element of sexual purpose was not established beyond a reasonable doubt.

The absence of analytical reasoning prevented meaningful appellate review under the principles in Sheppard and R.E.M. The appeal was allowed and a new trial ordered.

The appellant appealed convictions for impaired operation and failing to provide a breath sample following a collision and subsequent police investigation.

She argued the trial judge erred by allowing the Crown to call viva voce evidence on a Charter application despite late filing, by finding reasonable and probable grounds for an Intoxilyzer demand, by concluding her ability to drive was impaired, by finding intentional refusal to provide a breath sample, and by rejecting a Charter s. 7 claim relating to viewing Intoxilyzer results.

The court held the trial judge properly exercised discretion regarding the Charter application, correctly concluded the officer had reasonable and probable grounds, and reasonably found impairment based on the cumulative indicia of impairment.

The court also held that bad driving is not an essential element of impaired operation and that the evidence supported a finding of intentional refusal to provide a breath sample.

No Charter breach arose from the technician preventing the appellant from viewing the Intoxilyzer screen.

The accused applied for certiorari to quash committals for trial on charges of manslaughter and criminal negligence causing death following a preliminary inquiry.

The case arose from the accused leaving a bottle of methadone with a third party as collateral for a loan; the drug was later consumed by another person who died of acute methadone intoxication.

The applicant argued that there was no evidence of objective foreseeability or causation and that voluntary consumption by the deceased severed the chain of causation.

The court held that there was sufficient circumstantial evidence upon which a properly instructed trier of fact could find that trafficking in methadone under the circumstances was dangerous and that bodily harm was objectively foreseeable.

The court further held that the consumption of the methadone did not necessarily break the chain of causation and that the evidence supported committal for trial on the challenged counts.

The applicant brought a motion to stay a charge of care and control of a motor vehicle with blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood, alleging a violation of her right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms.

The total delay was approximately 27 months over two trial dates.

The court analyzed the delay in two phases and concluded that institutional delay fell within the Morin guidelines.

The applicant experienced some prejudice from the delay, but not sufficiently significant to warrant a stay.

The motion was dismissed.

The Crown appealed a sentence imposed following guilty pleas to assault against a spouse and breach of an undertaking.

The trial judge had granted a conditional discharge with probation for the assault and an absolute discharge for the breach.

The appeal court held that the sentencing judge erred in principle by failing to properly appreciate the distinction between a conviction and a discharge and by inadequately addressing the seriousness of the prolonged domestic assault, which occurred in the presence of the couple’s child.

The court emphasized that denunciation and deterrence are controlling principles in domestic violence sentencing and that the circumstances made a discharge contrary to the public interest.

The appeal was allowed and the sentences were varied to suspended sentences with probation.

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.

The applicant sought to reopen a summary conviction appeal that had been dismissed as abandoned in 2008 following a conviction for uttering a death threat and failing to comply with recognizances.

The court considered the extraordinary jurisdiction to reopen an appeal and whether doing so would serve the interests of justice.

The applicant relied on mental health history, incarceration at the time of the abandonment, and alleged ineffective assistance of counsel in entering a guilty plea.

The court found there was no satisfactory explanation for the failure to attend the appeal appearance, emphasized the strong interest in finality, and noted that the death of trial counsel would make assessing ineffective assistance difficult.

The court declined to reopen the appeal.

The appellant, a family doctor, appealed his conviction for sexually assaulting a patient during an after-hours examination.

He argued the trial judge erred in relying on the complainant's post-event demeanour, failing to properly assess her credibility regarding her suspicions of his motives, misapprehending a witness's evidence, and misapplying the W.(D.) framework for credibility.

The Summary Conviction Appeal Court dismissed the appeal, finding the trial judge properly applied the law, reasonably assessed the evidence, and made no reversible errors in concluding the Crown's evidence overwhelmed the defence's evidence.

The appellant appealed convictions for having care or control of a motor vehicle while impaired and with blood alcohol exceeding the legal limit.

The vehicle had been found in a ditch and the appellant, who possessed the keys and was highly intoxicated, attempted to have a tow truck driver pull it out without notifying police.

The trial judge inferred that the vehicle was operable and that the appellant intended to move it if extricated, creating a risk of danger.

On appeal, the appellant argued that these conclusions were speculative rather than reasonable inferences from the evidence.

The appeal court held that the inferences were logically available based on the proven facts and common human experience, and that the trial judge committed no error of law.

Following a mistrial caused by an unforeseen disruption, the court addressed whether prior evidentiary rulings would apply to the new trial.

The judge held that the earlier rulings would cross-apply, consistent with the governing legislation.

The court noted that the admissibility ruling concerning a bankrupt’s statement might require reconsideration depending on the outcome of the pending Supreme Court of Canada decision in R. v. Nedelcu.

The judge also indicated that the trial judge at the new trial should review the Crown’s proposed questions regarding prior discreditable conduct and post‑offence conduct to ensure the rulings are applied efficiently and do not disrupt the flow of evidence before the jury.

In a criminal fraud prosecution, the Crown sought to introduce statements the accused made under oath during an examination in bankruptcy proceedings under s. 161 of the Bankruptcy and Insolvency Act.

The court considered the scope of s. 13 of the Charter and the Supreme Court of Canada’s decision in R. v. Henry governing the use of prior testimony.

The court held that testimony given in a prior proceeding cannot be used by the Crown as part of its case in chief where it constitutes prior testimony protected by s. 13.

However, because the bankruptcy was voluntarily initiated and the statements were not legally compelled, the prior testimony could be used to cross-examine the accused if she chose to testify at trial.

Pre‑trial evidentiary ruling in a fraud prosecution concerning whether the Crown could introduce evidence of prior dealings between the accused and a financial brokerage, as well as alleged post‑offence conduct.

The Crown sought to admit background facts relating to the accused’s business relationship with the brokerage, evidence of financial difficulties suggesting motive, and alleged threatening conduct.

The court applied the probative value versus prejudicial effect analysis governing prior discreditable conduct and narrative evidence.

Background evidence concerning the accused’s relationship with the brokerage and events surrounding a promotional dinner attended by the complainant was admitted, as it was relevant to the complainant’s understanding of the accused’s representations.

Evidence of a prior debt, certain customer complaints, and an alleged threat was excluded or restricted due to limited probative value and significant risk of moral prejudice.

The accused was charged with impaired driving and driving with excess alcohol.

His trial was delayed for 14 months due to a lack of court time and the unavailability of a fully accredited Spanish interpreter.

The accused brought an application under s. 11(b) of the Charter, arguing that his right to be tried within a reasonable time was violated.

The court found that while the 9-month institutional delay was within the acceptable guidelines, the specific prejudice suffered by the accused, including additional legal expenses and anxiety from multiple adjourned trial dates, rendered the delay unreasonable.

The application was granted and the charges were stayed.

The Crown appealed the accused's acquittal on a charge of refusing to provide a breath sample.

The trial judge had excluded the evidence of the refusal under s. 24(2) of the Charter, finding that the police officer breached the accused's s. 10(b) rights by providing an inadequate summary of the right to counsel while waiting 8 to 9 minutes for an Approved Screening Device (ASD) to arrive.

On appeal, the Summary Conviction Appeal Court found that the trial judge erred by failing to determine the threshold issue of whether the ASD demand was valid, specifically whether the 'forthwith' requirement was met and if there was a realistic opportunity to consult counsel during the wait.

The appeal was allowed and a new trial ordered, as the essential factual findings regarding the validity of the demand had not been made.