Jill Witkin

The accused, Shane Codrington, was charged with multiple offences including robbery, sexual assault with an imitation firearm, unlawful confinement, and sexual assault with a weapon, stemming from an incident on July 10, 2019.

The Crown presented evidence including the complainant's testimony, video surveillance, and forensic DNA evidence linking a co-accused.

The accused denied the allegations, claiming an alibi and that evidence was planted.

The court found the complainant's testimony credible and corroborated by video and medical evidence.

The court rejected the accused's alibi and claims of planted evidence, finding his testimony untruthful.

The accused was found guilty on all counts except one related to the co-accused's participation in the elevator assault.

Jevor Brown, co-accused in a sexual assault case, brought a motion under s.11(b) of the Charter of Rights and Freedoms seeking a stay of proceedings due to unreasonable delay.

The total delay from charge to anticipated trial end was 46 months and 29 days, exceeding the 30-month Jordan ceiling for indictment cases.

Brown argued that only a four-month period was attributable to the COVID-19 pandemic, and that the Crown should have severed his case from his co-accused, Shane Codrington, whose actions caused significant delay.

The Crown contended that a longer period of delay was due to the pandemic's "ripple effect" on court capacity, resulting in a net delay below the Jordan ceiling, and that severance was not in the interests of justice given the nature of the charges and potential for a cut-throat defence.

The court dismissed the motion, finding that the majority of the delay was attributable to the exceptional circumstances of the COVID-19 pandemic and its systemic impact, and that the Crown's decision not to sever the trials was justified by the interests of justice.

This criminal trial concerned one count of sexual assault.

The prosecution alleged the defendant sexually assaulted the complainant in a washroom stall at a wedding reception.

Both the complainant and defendant provided conflicting accounts of the events.

The court found that the prosecution failed to establish beyond a reasonable doubt that the complainant did not consent to the sexual activity, leading to an acquittal.

The decision emphasizes that a finding of reasonable doubt about consent is not a positive finding of consent, and the burden of proof remains with the prosecution.

Prior to a jury trial for sexual assault, the defence brought several evidentiary motions.

The defence sought to exclude evidence of the accused's prior sexual communications with a complainant, renew an application for severance of counts, and exclude a PowerPoint presentation prepared by the Crown's expert witness on the neurobiology of trauma.

The court admitted the communications evidence, finding it essential to the narrative and the Crown's similar fact application.

The court dismissed the renewed severance application, concluding the accused's intention to testify did not undermine the viability of the similar fact evidence.

The court permitted the expert to use the PowerPoint presentation with specific modifications to prevent prejudice.

Finally, the court expanded the opening jury instructions to address nonconscious bias and false assumptions regarding consent.

In a prosecution for sexual assault and sexual interference, the court ruled on several pre-trial applications.

The court permitted a challenge for cause based on pre-trial publicity.

The court excluded proposed evidence from a former bandmate regarding a masturbation video and a statement about degradation, finding the prejudicial effect outweighed the probative value.

The court also excluded similar fact evidence from a prior sexual partner regarding sexual urination.

Finally, the court permitted the Crown to call an expert witness to testify about the basic neurobiology of trauma to dispel myths and stereotypes, but restricted the expert from applying that science specifically to the context of sexual assault.

The complainant, A., sought certiorari to quash a trial judge's decision regarding the admissibility of her sexual history evidence under s.276 of the Criminal Code in a sexual assault trial.

The trial judge had admitted certain prior sexual activity as relevant to the accused's belief in communicated consent, while prohibiting its use for propensity reasoning.

The Superior Court dismissed the application, finding no error of law going to jurisdiction and exercising its discretion to refuse interlocutory review, emphasizing the need to minimize delay in criminal trials and the non-final nature of the ruling at that stage.

The accused brought an application for directions regarding the admissibility of digital communications exchanged with the complainant during their relationship.

The communications were described as evidencing a mutual understanding of shared sexual preferences.

The court was asked to determine whether these materials constituted private records subject to screening provisions and whether they constituted extrinsic sexual activity under section 276 of the Criminal Code.

The court held that pre-June 16 communications were presumptively private records subject to screening and also constituted extrinsic sexual activity requiring leave.

June 16 communications were found to form part of the subject matter of the charge but were also private records requiring screening.

The court deferred the requirement for a pre-trial application, allowing the accused to seek leave during trial when evidence triggered the necessity to adduce the materials.

The appellant appealed his conviction for sexual assault.

The complainant testified she was asleep when the sexual activity occurred and had no recollection of it.

The appellant accepted that sexual activity had occurred based on DNA evidence but claimed no recollection and denied he would engage in non-consensual intercourse.

The trial judge instructed the jury on the requirement that the Crown prove the appellant knew the complainant was not consenting.

The appeal raised three grounds: whether the trial judge misdirected the jury on the knowledge requirement, whether the trial judge erred in instructing on circumstantial evidence, and whether the verdict was unreasonable.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant was convicted of sexual assault based on evidence that the complainant was extremely intoxicated and incapable of consenting when the appellant engaged in sexual activity with her.

The appellant appealed, arguing the trial judge erred by failing to consider whether the complainant's lack of memory raised a reasonable doubt regarding consent or honest but mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were compelling and based on the totality of evidence demonstrating the complainant's extreme intoxication and incapacity to consent, not merely on the complainant's testimony.

The appellant appealed his conviction for sexual assault following a jury trial.

The sole ground of appeal was that the trial judge erred by refusing to instruct the jury on the defence of honest but mistaken belief in consent.

The charge related to anal penetration that followed consensual oral and vaginal intercourse.

The complainant testified she repeatedly and unequivocally told the appellant to stop and resisted his attempts at anal penetration.

The appellant testified he asked for consent after partial insertion and the complainant agreed.

The court found no air of reality to the mistaken belief in consent defence, as the two accounts were fundamentally conflicting and could not be reconciled to support that defence.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault and the sentence imposed.

The trial judge found the appellant guilty of non-consensual anal intercourse with the complainant.

The appellant argued that the trial judge failed to consider evidence supporting a defence of honest but mistaken belief in consent, applied uneven scrutiny to the evidence, and misapprehended evidence regarding the complainant's moans.

The Court of Appeal rejected all grounds of appeal, finding that the evidence did not support the mistaken belief defence, that the trial judge applied consistent standards in assessing credibility, and that any misapprehension of evidence did not affect the conviction.

On sentencing, the Court found one error regarding the characterization of abuse of a spouse or common-law partner, but concluded this did not materially affect the sentence imposed.

The appellant appealed his conviction for sexual interference involving his daughter when she was between the ages of 3 and 9.

The appellant argued that the trial judge erred in applying the R. v. W.(D.) test and provided insufficient reasons.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's credibility assessments, her application of the proper legal test, or the adequacy of her reasons.

The trial judge's findings were entitled to deference, and the pathway to conviction was fully explained in the reasons provided.

The appellant was convicted of sexually assaulting a young woman (A.Y.) and sentenced to two years less one day.

On appeal, the appellant challenged the conviction on the ground that the trial judge improperly used the complainant's prior consistent statement—an anonymous email sent to police the morning after the alleged assault—as corroboration of her trial testimony.

The trial judge had explicitly stated that the email was "corroboration of her evidence." The Court of Appeal held that while the email was admissible for limited purposes (to rebut the defence theory regarding motive and to assess the complainant's credibility through her conduct), it could not be used as corroboration in the legal sense because it was not from an independent source and could not confirm the veracity of the complainant's testimony unless improperly used for the truth of its contents or by treating consistency as confirmatory.

The court found the trial judge erred in law and allowed the appeal, quashing the conviction and ordering a new trial.

The accused was charged with sexual assault following an incident on July 18, 2015.

The complainant attended a bar, consumed significant alcohol, and has no memory of events after approximately 2:00 a.m.

Surveillance video evidence established that the complainant became progressively more intoxicated throughout the night.

The Crown argued that the complainant lacked capacity to consent due to extreme intoxication.

The defence argued that the complainant's assumption about her lack of consent was unreliable and that the evidence did not establish incapacity beyond a reasonable doubt.

The trial judge found that while the complainant was severely intoxicated, the evidence established she lacked the cognitive capacity to consent to sexual activity.

The accused was convicted of sexual assault.

The accused was convicted of sexual assault against an unconscious victim on July 25, 2014.

The victim, aged 21, met the 46-year-old accused in a bar and agreed to go to his apartment to use cocaine.

She became intoxicated and passed out.

The accused performed oral sex on her without consent while she was unconscious.

The court rejected the defence submission for a conditional sentence and imposed a custodial sentence of 12 months, emphasizing the principles of denunciation and deterrence.

A SOIRA order for ten years, three-year probation with no-contact conditions, a DNA order, and a weapons prohibition were also imposed.

The accused was charged with three sexual offences involving a 14-year-old complainant.

The alleged incident occurred in the accused's car in an alley after the complainant and accused had consumed cocaine together.

The complainant testified to sexual contact including digital penetration, attempted kissing, and oral sex.

The accused denied all allegations.

The complainant's aunt, who was present in the home at the time, testified that no conversation about the incident occurred between the accused and herself, contradicting the complainant's account.

The court found the accused not guilty of all charges, citing concerns about the complainant's credibility due to her history of dishonesty and the timing of disclosure, combined with the powerful evidence of the aunt regarding the absence of the alleged McDonald's conversation.