Kelli Frew

A.H. was found guilty by a jury of sexual assault.

This decision outlines the sentencing, considering aggravating factors such as the victim's age (16 at the time of the offence), the profound and devastating impact on the victim (depression, self-harm, fear of intimacy), the violent and serious nature of the assault involving multiple violations (kissing, touching, forced digital penetration, forced oral sex, forced vaginal intercourse), and the presence of another male during the assault.

Mitigating factors included A.H.'s youth (18 at the time of the offence), being a first-time adult offender, having a supportive family, a stable employment history, and a newfound willingness to seek therapy for past traumas.

The Crown sought 4 to 5 years in custody, while the defence sought a conditional sentence of two years less a day.

The court rejected a conditional sentence, finding it inappropriate for a violent sexual assault, and sentenced A.H. to 30 months' incarceration, moderately below the typical range for forced penetration due to his youth and first-offender status.

The Crown sought to file a letter written by the complainant as a numbered exhibit during trial.

The defence opposed this.

The court denied the Crown's request, citing a prior omnibus ruling by Justice Kurz that restricted evidence regarding certain sexual activity, and the general rule against admitting prior consistent statements as exhibits, especially when they contain information not disclosed in the witness's testimony.

The court found no unfairness to the Crown or complainant in not admitting the letter, as the complainant had an opportunity to address inconsistencies during cross-examination.

During a sexual assault trial, the Crown brought an application to admit prior consistent statements made by the complainant to a friend via Snapchat on the night of the alleged offence.

The Crown argued the evidence was necessary to rebut the defence's allegation of recent fabrication raised during cross-examination.

The court dismissed the application, finding that the defence's theory posited the motive to fabricate arose before the Snapchat conversation occurred, specifically when the complainant's mother picked her up and she feared punishment for breaking parental rules.

Consequently, the statements lacked probative value to rebut the allegation.

The accused, A.H., sought leave to re-open a pre-trial ruling by a case management judge (Kurz J.) that denied an. application under s. 276 of the Criminal Code regarding evidence related to a "Spin The Vape" game.

The application for leave was based on three grounds: fresh evidence (an affidavit from A.H.), the release of a new Court of Appeal decision (R. v. Choudhary), and alleged misapprehension of evidence or submissions by the case management judge.

The court dismissed the application, finding that the affidavit did not constitute fresh evidence that could not have been adduced earlier, that R. v. Choudhary did not change the existing law, and that there was no misapprehension of evidence by the case management judge.

During a criminal trial for sexual offences, the Crown sought to cross-examine the accused regarding an alleged attempt to contact a potential witness on social media.

The defence objected.

The court denied the Crown's request, finding that the proposed cross-examination would only serve to show circumstantially bad character.

The court held that the prejudicial effect of allowing the jury to infer disreputable conduct outweighed any probative value, and the evidence did not tend to prove that the sexual activity with the complainant was non-consensual.

The defendant pleaded guilty to assault causing bodily harm.

The Crown sought imprisonment of three to six months followed by probation, while the defence sought a suspended sentence with probation.

The court imposed a conditional sentence of three months imprisonment to be served in the community, followed by three years probation.

The court considered the aggravating factors of the offence (premeditation, use of a weapon, stabbing the victim in the back) against mitigating factors (guilty plea, remorse, no prior record, compliance with bail conditions, engagement in counselling, and the impact of COVID-19 on custodial conditions).

The court ordered restitution of $1,500 total, a DNA order, and a five-year weapons prohibition.

The defendant was charged with impaired driving and driving with excess alcohol following a December 6, 2018 incident where a civilian witness observed erratic driving on Highway 403 and called 911.

Police attended at an ice arena parking lot where the defendant was located.

The defendant failed a roadside screening device test and was arrested.

Breath samples revealed readings of 340 and 330 milligrams of alcohol per 100 millilitres of blood.

The defendant brought Charter applications challenging the lawfulness of the detention, the timing of the ASD demand, the provision of rights to counsel, and the reasonableness of grounds for arrest.

The court rejected all Charter arguments and found the defendant guilty of both offences.

The accused pleaded guilty to possession of child pornography.

The Crown sought 21 months imprisonment followed by probation.

Defence counsel sought a conditional sentence or intermittent imprisonment of 90 days.

The court imposed 9 months imprisonment followed by 3 years probation, rejecting both a conditional sentence and intermittent imprisonment as inconsistent with sentencing principles for child pornography offences.

The court emphasized that denunciation and general deterrence are the primary sentencing objectives for such offences, particularly given the serious nature of child sexual abuse material and the re-victimization of children each time such material is viewed.

The Crown applied to have the offender, S.S., declared a dangerous offender under s. 753 of the Criminal Code, seeking an indeterminate sentence, following his conviction for sexual interference.

The offender resisted, arguing he should be declared a long-term offender under s. 753.1, with a determinate sentence and a long-term supervision order.

The court declined to find the offender a dangerous offender, concluding that the Crown failed to prove a "pattern of repetitive behaviour" or "persistent aggressive behaviour" and that the conduct was "intractable" beyond a reasonable doubt.

Instead, the court found the offender to be a long-term offender, imposing a 10-year term of imprisonment and a 10-year long-term supervision order, finding a reasonable possibility of eventual risk control in the community.

The accused pleaded guilty to possession of child pornography between August 26 and October 19, 2012.

The Crown proceeded summarily.

The court rejected the defence submission for a conditional sentence of imprisonment and imposed a custodial sentence of seven months (less pre-sentence custody credit) followed by three years of probation.

The court found that while the accused had mitigating factors including a guilty plea, remorse, no prior record, and strong family support, the serious nature of the offence—involving over 7,900 images and 64 videos depicting young children in explicit sexual acts—required denunciation and general deterrence as primary sentencing objectives.

The court imposed ancillary orders including a DNA order, Sex Offender Information Registration Act compliance for ten years, a ten-year section 161 order restricting contact with children and internet use, a five-year weapons prohibition, and forfeiture of seized computers.

The accused was charged with sexual assault and sexual interference against his young niece.

At the preliminary inquiry, the child claimed to have no memory of the events or her prior police interview.

The Crown sought to admit her video-recorded police interview under the principled exception to the hearsay rule.

The court found the statement met the criteria for necessity and threshold reliability and admitted it into evidence.

Applying the W.(D.) framework, the court accepted the child's statement over the defence evidence and found the accused guilty on both counts.

The defendant was charged with sexual assault, sexual interference, and invitation to sexual touching against a five-and-a-half-year-old complainant on March 13, 2014.

The Crown proceeded summarily.

The trial centered on credibility and the identity of the assailant.

The complainant testified via CCTV that the defendant showed her his genitals and touched her inappropriately.

However, during cross-examination, the complainant indicated that it was the defendant's 17-year-old son who committed these acts, not the defendant.

The court found the complainant's evidence to be unreliable and malleable, influenced by the questioning of various adults.

The investigating officer failed to properly investigate the alternate suspect despite being informed by the suspect's counsel that he wished to provide an inculpatory statement.

The defendant testified in his own defence and denied the allegations.

The court found his evidence left a reasonable doubt.

The defendant was acquitted of all charges.

The accused was charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code.

The Crown alleged that printed materials containing child pornography, found in a drawer in the defendant's home, were in the defendant's possession.

The defendant denied knowledge of or possession of the materials and suggested that a family member, specifically his grandson Matthew Butwick, had printed and planted the materials to implicate him.

The trial judge found the Crown had proven beyond a reasonable doubt that the defendant possessed the child pornography and had printed the materials himself, rejecting the defendant's implausible alternative explanation.

The appellant brought a summary conviction appeal from convictions for assault and sexual assault following a trial.

He sought to introduce fresh evidence arising from a later civil discovery in which the complainant made statements inconsistent with her trial testimony regarding whether she worked the day after the alleged sexual assault.

Applying the principles governing fresh evidence under s. 683(1) of the Criminal Code and the Palmer test, the court held the inconsistent statements were admissible and had significant impeachment value concerning the credibility of the key Crown witness.

The court also found the trial judge’s reasons were deficient, particularly in addressing the third step of the W.(D.) analysis and in failing to grapple with major inconsistencies and evidentiary conflicts.

The convictions were therefore set aside and a new trial ordered.

The appellant appealed his conviction and sentence for sexual assault arising from an incident involving his employee.

He argued the trial judge improperly presumed the complainant’s truthfulness, misapprehended evidence, and failed to properly apply the credibility framework in R. v. W.(D.).

The court rejected these arguments and upheld the conviction, finding the trial judge’s credibility findings and reliance on corroborative text message evidence were open on the record.

However, the sentencing judge erred by relying on unproven medical diagnoses in the victim impact statement and by treating the nature of the touching (over or under clothing) as irrelevant to sentence.

The appellate court set aside the custodial sentence and imposed a conditional sentence in the community.

The appellant appealed a conviction for dangerous operation of a motor vehicle following an incident during a traffic stop.

The appellant argued that the verdict was unreasonable and that the trial judge’s reasons were inadequate.

The summary conviction appeal court held that while the evidence could support a conviction, the trial judge’s reasons failed to explain why key factual findings were made in the face of conflicting testimony.

Because the reasons did not address credibility conflicts or explain the basis for rejecting parts of the defence evidence, they did not permit meaningful appellate review.

The conviction was quashed and a new trial ordered.

The accused brought a motion for a stay of proceedings pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that the delay between his arrest on October 5, 2010 and his trial date of March 7, 2012 (17 months and 2 days) violated his right to trial within a reasonable time.

The Crown conceded that the total delay warranted Charter scrutiny but argued that the institutional delay, after appropriate deductions for intake and neutral periods, was approximately 11 months, which fell within acceptable guidelines.

The court found that while the accused suffered some prejudice from the frustration of his first trial date, the majority of his claimed prejudice was charge-related rather than delay-related.

The court dismissed the motion, finding that the accused had not satisfied the balance of probabilities test for establishing a section 11(b) breach.

The accused was charged with break and enter of a residential dwelling, theft, possession of stolen property (a vehicle and a safe), and breach of recognizance.

The Crown's case relied on eyewitness identification evidence from two independent witnesses who identified the accused in photo line-ups, combined with the doctrine of recent possession.

The court found the identification evidence reliable and the photo line-up procedures fair, complying with Sophonow Inquiry recommendations.

The accused was convicted on counts 1, 2, 3, and 4.

Count 5 was dismissed at the Crown's request.