Joseph Kupfert Heller

The appellant was convicted of a single count of sexual assault against his then spouse following a judge-alone trial.

He was acquitted of sexual offences against his children.

The appellant appealed his conviction, challenging the trial judge's dismissal of an application to reopen the trial based on fresh evidence.

The fresh evidence consisted of Day Timer entries suggesting the date of the hysterectomy may have been approximately ten months later than the complainant testified.

The Court of Appeal upheld the conviction, finding no error in principle in the trial judge's assessment that the proposed fresh evidence would not have affected the verdict.

The accused was tried on a charge of sexual assault causing bodily harm arising from a first in-person meeting after online communications.

The court held that the Crown failed to prove beyond a reasonable doubt that the accused intended to inflict bodily harm, and further found significant reliability concerns in the complainant’s evidence arising from intoxication, memory gaps, inconsistencies, and lack of supporting physical evidence.

Applying the W.(D.) framework and the test in Zhao, the court concluded that reasonable doubt remained on the issue of non-consent to anal intercourse.

The accused was acquitted.

The applicant brought a motion to stay proceedings for driving while under suspension and failing to properly wear a seatbelt, alleging a breach of his section 11(b) Charter right to be tried within a reasonable time.

The Crown argued the matter should be assessed under the Morin framework, while the applicant relied on the newly released Jordan framework establishing an 18-month presumptive ceiling for provincial court cases.

The court found that although the total delay was 17 months and 1 day, the case became significantly more complex mid-proceedings when the Crown discovered the defendant had multiple driver's licences that had been merged by the Ministry of Transportation.

The court held that the time spent on judicial pre-trial conferences constituted inherent time requirements of the case and that the Crown had acted expeditiously throughout.

The motion to stay was dismissed.

The appellant pled guilty to multiple charges arising from a series of robberies and break and enters, including robbery with a firearm, unlawful confinement, and use of a firearm in the commission of unlawful confinement.

On appeal, he argued that the Kienapple principle precluded multiple convictions for these offences arising from the same incidents.

The Court of Appeal held that while the unlawful confinement convictions could stand, the convictions for using a firearm in the commission of unlawful confinement must be stayed, as they punished the same criminal wrong as the robbery with a firearm convictions.

The court varied the sentences on the armed robbery convictions to maintain the total sentence of seven years and nine months' imprisonment.