K. Motyl

The appellant appealed his convictions for sexual assault, sexual interference, and breach of probation involving a 9-year-old complainant.

The central issue on appeal was whether the trial judge committed a 'Miller error' in applying the W. (D.) framework for assessing credibility by allegedly ignoring evidence that was neither accepted nor rejected.

The Superior Court of Justice found that the trial judge properly applied the burden of proof and did not err in his credibility assessment.

The appeal was dismissed.

The appellant appealed his sentence of 18 months' probation for two counts of failing to comply with a recognizance in a domestic context.

He argued the sentencing judge failed to adequately consider the principle of restraint and his rehabilitation, seeking a conditional discharge due to potential employment and immigration consequences.

The Superior Court of Justice dismissed the appeal, finding the sentencing judge made no error in principle and that a suspended sentence was appropriate given the repeated breaches of court orders.

The appellant appealed his conviction for driving with excess alcohol, arguing that his s. 10(b) Charter rights were violated because the police delayed administering an approved screening device (ASD) test, creating a reasonable opportunity to consult counsel.

The trial judge held that the appellant failed to meet his onus of establishing that there was a reasonable opportunity to consult counsel.

On appeal, the Superior Court of Justice held that the trial judge erred in placing the onus on the appellant.

The court found that once an applicant establishes a prima facie Charter violation (detention without being advised of the right to counsel), the onus shifts to the Crown to justify the breach under s. 1 by proving the demand was made 'forthwith', which includes showing there was no reasonable opportunity to consult counsel.

The appeal was allowed and a new trial ordered.

The offender was found guilty by a jury of being an accessory after the fact to murder.

She changed the registration colour of a vehicle used by her boyfriend during a murder to avoid police detection.

The court considered her 876 days of pre-trial custody, credited as 1,314 days (3.5 years).

The court imposed a sentence of one day in jail in addition to the pre-trial custody, declining to order probation as the offender had demonstrated rehabilitation while on bail.

During a jury trial for being an accessory after the fact to murder, the accused argued that the defence of duress should be left with the jury.

The alleged duress arose from the accused’s relationship with a violent offender and prior threatening communications.

The court applied the “air of reality” test and held that there was no evidence of an explicit or implicit threat temporally connected to the accused’s conduct or made for the purpose of compelling the offence.

Earlier threats and violent conduct occurring a year prior lacked the necessary nexus to the impugned acts.

The defence of duress was therefore withdrawn from the jury.