John R. W. Caldwell

The appellant was charged with sexual assault after engaging in vaginal intercourse without a condom, having been expressly told by the complainant that her consent was conditional on condom use.

The trial judge granted a no-evidence motion and dismissed the charge on the basis that the complainant had consented to all the physical acts involved, leaving only a fraud analysis under s. 265(3)(c) of the Criminal Code.

The majority of the Supreme Court held that when condom use is a condition of consent, it forms part of the 'sexual activity in question' under s. 273.1(1), and intercourse without a condom is a fundamentally different physical act than intercourse with one, such that there was evidence of a lack of subjective consent.

The concurring minority agreed the appeal should be dismissed but held that Hutchinson applies and all condom-related consent must be analyzed under the fraud provision, articulating a detailed framework for horizontal stare decisis.

The appeal was dismissed and a new trial ordered.

The appellant Crown appealed a Court of Appeal decision ordering a new trial after the majority found the trial judge had misapprehended evidence by failing to address prior inconsistent statements made by the complainant to a friend shortly after the alleged sexual assault.

The Supreme Court restored the conviction, agreeing with the dissenting judge below that the trial judge's failure to specifically address those inconsistencies did not constitute a failure to consider or give effect to them.

The Court held that even if there was error, the inconsistencies were not sufficiently significant to have caused a miscarriage of justice, as the threshold for establishing a miscarriage of justice through misapprehension of evidence requires that the error could have affected the outcome.

The appellant was detained in pre-trial custody on firearm offences and sought a review under s. 525 of the Criminal Code.

The reviewing judge applied a two-step test requiring the accused to first establish either unreasonable prosecutorial delay or a material impact of time on the initial basis for detention before the court could assess whether continued detention was justified under s. 515(10).

The Supreme Court allowed the moot appeal to resolve a systemic national divergence, holding that unreasonable delay is not a threshold condition for a s. 525 detention review — the sole overarching question is whether continued detention is justified under s. 515(10).

The Court also clarified the procedural obligations of the jailer to apply forthwith, the judge to schedule the hearing at the earliest opportunity, and the discretion under ss. 525(9) and 526 to give directions expediting the trial.