Carmel Penney

The appellant appealed a conviction for refusal to provide a roadside breath sample, arguing that the trial judge improperly used his silence as evidence of guilt.

The appeal challenged references made by the trial judge to the appellant’s failure to explain his inability to provide a sample at the roadside and his decision not to testify at trial or during a Charter motion alleging lost evidence.

The court held that comments about the absence of testimony on the Charter motion were permissible because the burden rested on the accused in that context.

The court further held that the trial judge’s observation that no defence evidence contradicted the officers’ testimony did not improperly use silence as proof of guilt, but merely noted the unchallenged nature of the Crown’s case.

The appeal was dismissed.

The appellant appealed a conviction for criminal harassment, arguing that the trial judge misapprehended the evidence, failed to provide meaningful reasons, and improperly applied the credibility framework from R. v. W.D. The appeal court reviewed the record and found the trial was straightforward, with credibility as the central issue.

The trial judge rejected the appellant’s theory that the complainants fabricated allegations to interfere with a firearms licence appeal and found the appellant’s testimony not credible.

The court held that the trial judge properly applied the W.D. framework and provided reasons grounded in the evidence.

The appeal was dismissed.

The appellant appealed summary conviction findings of guilt on two counts of indecent act.

The appellant argued that the trial judge improperly reversed the burden of proof by failing to require the Crown to disprove the alibi beyond a reasonable doubt, and improperly drew an adverse inference from the rejected alibi.

The appeal judge found no error regarding the burden of proof, but held that the trial judge erred by treating disbelief of the alibi as evidence of guilt without proof of deliberate fabrication.

Because the counts were factually intertwined and the adverse inference undermined the assessment of credibility, the error tainted both verdicts.

The appeal was allowed and a new trial ordered.

The appellant appealed convictions for sexual interference and uttering threats arising from allegations involving a child complainant, arguing that the trial judge misapplied the credibility framework in R. v. W.(D.), improperly rejected the accused’s evidence, and wrongly treated a letter written by the complainant as a prior consistent statement.

The court held that the trial judge applied the proper W.(D.) analysis and fairly assessed the credibility of both the complainant and the accused.

The court further found that the letter was not relied upon for the truth of its contents but was used only as part of the narrative context.

No reversible error was identified in the trial judge’s reasoning or evidentiary treatment.

The appeal was therefore dismissed.