Sexual assault

The applicant brought a preliminary motion for a publication ban, anonymization order, and sealing of documents in her application for judicial review of a decision by the Office of the Independent Police Review Director.

The underlying complaint related to the police investigation of an alleged sexual assault against the applicant while she was working as an exotic dancer.

Applying the Sherman Estate test, the court found that court openness posed a serious risk to the applicant's privacy and psychological well-being, and that the benefits of protecting her identity outweighed the negative effects on the open court principle.

The motion was granted, allowing the applicant to proceed using initials.

The applicant sought judicial review of a university adjudicator's decision regarding her sexual assault complaint against another student.

The adjudicator had deferred the outcome of the university's disciplinary appeal to the result of the respondent's pending criminal trial.

The Divisional Court granted the application, finding that the adjudicator unlawfully delegated his decision-making authority and improperly imported the criminal standard of proof into an administrative proceeding.

The decision was quashed and remitted to a different adjudicator.

The applicant hospital sought judicial review of an arbitrator's decision overturning the transfer of an employee who had previously been disciplined for assaulting a co-worker.

The hospital argued the transfer was an administrative decision to protect the complainant under the Occupational Health & Safety Act.

The arbitrator found the transfer constituted a second penalty for the same offence, violating the principle of double jeopardy.

The Divisional Court dismissed the application, holding that the arbitrator's decision was reasonable and properly balanced the competing values of workplace safety and protection against double jeopardy.

The appellant faced criminal charges for sexual assault and was also sued civilly by the complainant.

In the civil action, the appellant obtained discovery evidence, which his civil counsel shared with his criminal counsel to impeach the complainant at the criminal trial.

The motion judge ruled that the appellant needed court leave under rule 30.1(8) to use the evidence for impeachment and that sharing it with criminal counsel breached the deemed undertaking.

The Divisional Court allowed the appeal, holding that rule 30.1(6) permits the use of discovery evidence for impeachment without prior court authorization, and that sharing the evidence with legal advisors does not breach the undertaking.

The applicant, convicted of sexual assault and sexual exploitation, brought a Charter challenge against s. 742.1 of the Criminal Code, which prohibits conditional sentences for serious personal injury offences.

The applicant argued the provision violated s. 7 (overbreadth) and s. 12 (cruel and unusual punishment) of the Charter.

The court dismissed the application, finding the provision was rationally connected to its purpose of denunciation and deterrence, and did not impose a grossly disproportionate sentence on the applicant or reasonably hypothetical offenders.

The accused was charged with sexual assault and assault against his former spouse, alleged to have occurred in 2008 while both were stationed at a military base.

The allegations were not reported until 2014, following a contentious family law dispute over child support and daycare expenses.

The court applied the W. (D.) framework to assess credibility and found the accused's evidence to be generally responsive and not materially impeached.

Conversely, the court found the complainant's evidence lacked reliability due to memory issues, internal inconsistencies, and evidence of animus related to the family law proceedings.

The court was left with a reasonable doubt and acquitted the accused on all counts.

The Crown applied to have the respondent designated a dangerous offender following convictions for multiple offences, including sexual assault with a weapon, forcible confinement, and criminal harassment against an intimate partner.

The court found that the respondent's history of escalating domestic violence established a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing severe injury or psychological damage in the future.

The court concluded that there was no reasonable expectation that a lesser measure would adequately protect the public, designated the respondent a dangerous offender, and imposed an indeterminate sentence.

The accused was charged with sexual interference, invitation to sexual touching, sexual assault, and communicating to obtain sexual services for consideration from a minor.

The 15-year-old complainant alleged she exchanged sex for methamphetamine with the accused.

The court found the complainant's evidence to be highly inconsistent and unreliable due to chronic drug use, lack of sleep, and memory-affecting medication.

Applying the W.(D.) analysis, the court accepted the accused's unshaken denials and found the Crown failed to prove the charges beyond a reasonable doubt.

The accused was acquitted on all counts.

The accused was charged with sexual assault and sexual interference against a young child.

The police videotaped the initial interviews with the child complainants but negligently failed to record the audio.

The defence brought an application for a stay of proceedings under s. 24(1) of the Charter, arguing the lost evidence impaired the accused's right to make full answer and defence under s. 7.

The court found unacceptable negligence by the police resulting in a s. 7 breach, but denied the stay as the defence failed to show irreparable prejudice.

At trial, the court found significant inconsistencies and credibility issues in the children's evidence, raising a reasonable doubt.

The accused was acquitted on all counts.

The accused was charged with sexual assault and forcible confinement following an interaction with the complainant after a church service.

The complainant alleged the accused attacked her, choked her, and sexually assaulted her outside the church.

The accused testified that the interaction was consensual and related to faith healing, denying any sexual contact.

The court applied the W.(D.) test for credibility and found significant inconsistencies in the complainant's evidence, including contradictions with video surveillance and prior testimony.

The court was left with a reasonable doubt and acquitted the accused on both charges.

The appellant appealed a Small Claims Court decision awarding the respondent $10,000 in damages and $4,000 in costs for malicious prosecution and defamation arising from false allegations of sexual assault.

The appellant argued the trial judge erred in assessing credibility, relied on stereotypes, and improperly awarded costs.

The Divisional Court dismissed the appeal, finding that the trial judge's credibility assessments were supported by the evidence and that the costs award was reasonable given the six-day trial.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying her claim for compensation following an alleged sexual assault.

The Board had rejected the appellant's direct evidence and the expert evidence of two sexual assault nurses, relying instead on hearsay evidence from a police officer who concluded the acts were consensual.

The Divisional Court allowed the appeal and remitted the matter for a new hearing, finding that the Board failed to provide adequate reasons for its decision, thereby breaching procedural fairness.

The Court also held that the Board's decision was unreasonable, as it relied heavily on flawed hearsay evidence while failing to explain its rejection of the appellant's and the medical experts' evidence.

The employer applied for judicial review of a labour arbitration award that reinstated an employee who had been terminated for sexually harassing and assaulting a contract cleaner.

The arbitrator found the employee committed the acts over five years and showed no remorse, but substituted a lengthy suspension for termination because the complainant did not want him discharged and another cleaner had successfully stopped his harassment by threatening violence.

The Divisional Court held the arbitrator's decision was unreasonable, as it relied on irrelevant factors and undermined the employer's statutory duty to provide a harassment-free workplace.

The application was allowed and the termination upheld.

The appellant appealed a Master's order refusing to set aside the administrative dismissal of her action for damages for sexual assault.

The appellant argued that because her claim involved sexual assault and was not subject to a limitation period, the Master erred by not applying a more lenient test for setting aside the dismissal.

The Divisional Court dismissed the appeal, finding that the Master correctly considered the nature of the claim as a contextual factor but properly concluded that the appellant's failure to move the action forward was unrelated to the nature of the assault, and that the respondents were entitled to expect compliance with the Rules of Civil Procedure.

The appellant challenged his child luring conviction on the basis that text messaging by cellular telephone did not amount to communicating by means of a computer system within the meaning of the Criminal Code.

The court held that text messaging using cellular phones involves interconnected devices and computer programs performing logic and control functions, and therefore falls within s. 342.1(2).

On sentence, the court upheld a six-and-one-half-year global penitentiary term for grooming and sexually assaulting a 12-year-old after inducing her with false promises of millions of dollars.

The court confirmed that grooming may be treated as an aggravating factor and emphasized that denunciation, deterrence, separation of offenders, and child protection are paramount in sentencing adult sexual predators.

On a criminal appeal from convictions for sexual assault, assault, and threatening death, the appellant challenged the trial judge's credibility findings in a consent case.

The Court of Appeal held that the trial judge improperly took judicial notice of a physiological proposition about how a healthy young man's penis would function during intercourse, despite the absence of expert evidence and without notice to the parties.

The court also found a material misapprehension of a witness's evidence concerning what she knew of the parties' prior relationship, which materially supported the rejection of the defence evidence.

Because both errors went to central factual issues, the convictions were quashed and a new trial was ordered.

The appellant challenged convictions for sexual offences arising from allegations made by his daughter, whose unsworn videotaped police statement was the only inculpatory evidence and who recanted at trial.

The Court of Appeal held that the videotaped statement was properly admitted for its truth under the principled hearsay exception because the complainant was available for cross-examination at trial, the entire interview was videotaped, and the circumstances sufficiently addressed the main hearsay danger.

However, the court found reversible error in the trial judge's treatment of proof beyond a reasonable doubt.

By treating acceptance of the videotaped statement as necessarily requiring rejection of the defence evidence, the trial judge failed to assess whether the whole of the evidence raised a reasonable doubt under the W. (D.) framework.

The appeal was allowed and a new trial ordered.

The appellant appealed a sexual assault conviction involving a child complainant, arguing that the trial judge's reasons were inadequate because they did not expressly explain the rejection of his denial.

The court held that the adequacy of reasons must be assessed functionally and contextually by asking whether they permit meaningful appellate review.

Reviewing the whole record, including the complainant's evidence, the diary evidence, and the trial judge's express application of the reasonable doubt standard and the W.(D.) framework, the court found the route to conviction was clear.

The reasons were sufficient to show that the denial did not raise a reasonable doubt when weighed against the accepted evidence.

Appeal dismissed.

The appellant appealed convictions for sexual exploitation and sexual assault arising from historic allegations by two complainants subject to a publication ban.

The Court of Appeal held that the trial judge erred by failing to instruct the jury on the limited use of prior consistent statements and by failing to caution the jury about the mother's belief in the complainants' truthfulness.

Although the court rejected challenges to the instruction on after-the-fact conduct and to the alleged inconsistency of the verdicts, the combined instructional errors undermined trial fairness.

A new trial was ordered, with the Crown left to decide whether to proceed.

The appellant appealed convictions arising from a jury trial involving allegations of sexual assault, threatening, assault, attempting to obstruct justice, and breach of bail.

The court held that the trial judge's charge on sexual assault was inaccurate and confusing because it failed to confine the jury's analysis to the first sexual encounter, misapprehended the timing of an alleged threat, and wrongly instructed that the threat could vitiate consent under the Criminal Code.

The court also found reversible error in the failure to instruct on the mens rea for threatening and in the inadequate charge on attempting to obstruct justice.

Because the evidence on the remaining counts was intertwined with the tainted counts, all convictions were quashed and a new trial was ordered.