Jordan Trevick

The appeal considered whether Criminal Code s. 725(1)(c) allows sentencing judges to treat as aggravating facts conduct that could ground a separate charge where such a charge had previously been laid but was no longer pending.

A majority held that the provision applies in those circumstances, provided the separate charge remained legally possible at sentencing and procedural fairness is preserved.

The Court emphasized Crown duties of fairness, including timely disclosure of aggravating facts and avoidance of ambush in plea contexts.

It found no reviewable sentencing error and restored the original sentence.

The dissent would have found unfair use of the evidence and upheld the reduced sentence.

The appellant appealed as of right from a Quebec Court of Appeal decision upholding his convictions for sexual assault and breaking and entering with intent to commit an indictable offence.

Both the Court of Appeal majority and the SCC majority agreed the trial judge erred in characterizing a prior event as similar fact evidence.

The SCC majority, adopting the reasoning of the Court of Appeal, held the curative proviso under s. 686(1)(b)(iii) of the Criminal Code applied and dismissed the appeal.

The dissent disagreed, finding that because credibility of both the accused and complainant was central, the Crown's evidence could not be considered overwhelming, making the curative proviso inapplicable.

The appeal was dismissed, with Brown and Rowe JJ. dissenting.