Kirsten Van Drunen

This ruling addresses an application by the accused, Donald McCarthy, under s. 276 of the Criminal Code to admit evidence of the complainant's prior sexual activity in a sexual assault trial.

The proposed evidence included a prior consensual sexual encounter and discussions about a threesome, which the accused argued were relevant to the complainant's credibility due to alleged inconsistencies in her statements.

The court found no material inconsistency, noting the complainant's initial police statement was limited by specific police instructions.

The court determined the proposed evidence lacked significant probative value and was substantially outweighed by the danger of prejudice, particularly considering the complainant's Indigenous identity and the private nature of the "Threesome Evidence." The application was dismissed.

The accused was charged with possession of methamphetamine for the purpose of trafficking after police found 9 ounces of the drug in the bed of his pickup truck during a search incident to a warrantless arrest.

The accused brought a Charter application alleging breaches of his s. 8 and s. 9 rights, arguing police lacked reasonable grounds for the arrest.

The court dismissed the Charter application, finding the police had both subjective and objective reasonable grounds based on surveillance of the accused meeting with a known drug supplier.

At trial, the court rejected the accused's testimony as a complete fabrication and found that the circumstantial evidence proved beyond a reasonable doubt that he had knowledge and control of the drugs.

The accused was found guilty.

The defendant pleaded guilty to careless driving causing death under s. 130(3) of the Highway Traffic Act following a fatal motor vehicle collision on May 16, 2019.

The defendant failed to stop at a stop sign while traveling at approximately 60 km/h and struck a vehicle with the right of way, resulting in the death of the other driver.

The court accepted a joint submission on sentence that imposed a $2,000 fine, a four-year driving prohibition, and two years of probation with conditions including 50 hours of community service.

The court considered the defendant's remorse, community contributions, Indigenous heritage, and the impacts of residential school trauma on her family as mitigating factors.

The accused, charged with second-degree murder in a cold case, brought a pretrial application to exclude statements made to undercover officers during a 'cell insert' operation.

The accused argued the operation breached his right to silence under section 7 of the Charter.

The court found that the undercover officers actively elicited information from the accused, exploiting his vulnerabilities, including mental illness and drug addiction, and the circumstances of his confinement.

The court concluded that the accused's right to silence was breached and excluded the statements under section 24(2) of the Charter, finding their admission would bring the administration of justice into disrepute.

The accused was charged with second degree murder in the death of a 17-month-old child who died from acute craniocerebral trauma on September 12, 1994.

The Crown alleged the accused inflicted fatal blunt force injuries to the child's head and torso while alone with her in the bedroom.

The defence conceded sufficient evidence existed for manslaughter but argued the Crown had not established the requisite mens rea for second degree murder, specifically that the accused intended to cause bodily harm he knew was likely to cause death.

The court found that based on the nature and extent of the injuries, a reasonable jury could infer the accused intended the natural consequences of his violent actions and committed the accused to stand trial on the charge of second degree murder.

The offender was sentenced for two offences: possession of child pornography contrary to section 163.1(4) of the Criminal Code and making available child pornography contrary to section 163.1(1)(3) of the Criminal Code.

The offender had sent images and videos of child sexual abuse to other users on an internet website.

A search warrant revealed an extensive collection of child pornography on the offender's external hard drive, containing 355 accessible images and 242 accessible videos, depicting very young children (ages 2-11) being sexually abused.

The court imposed a custodial sentence of 120 days on the possession charge and 240 days consecutive on the making available charge, for a total of 348 days plus pre-sentence custody credit.

The court also imposed a three-year probation order, a lifetime Sex Offender Information Registration Act order, a 20-year section 161 prohibition order, a primary DNA order, and a forfeiture order.