Dominique D. Smith

The appellant appealed summary conviction findings of guilt for sexual assault and sexual exploitation, arguing that the trial judge misapplied the credibility framework in R. v. W.(D.) and improperly restricted cross‑examination concerning alleged exculpatory statements made during the incident.

The appeal court held that although the trial judge’s articulation of the second branch of the W.(D.) test differed slightly from the classic formulation, the reasons as a whole demonstrated that the correct burden of proof was applied and the accused’s evidence was rejected in its entirety on credibility grounds.

The court also found no miscarriage of justice arising from the trial judge’s intervention regarding prior exculpatory statements and the requirement for assurance that the accused would testify.

Any potential confusion was addressed during the trial and did not prejudice the defence.

The convictions were therefore upheld.

The accused was tried on two counts of criminal harassment and one count of breach of probation arising from post-separation contact with his estranged spouse.

The court reviewed a lengthy course of communications and encounters in the context of an on-again, off-again relationship, ongoing property disputes, and mixed messages from the complainant.

Although the court found one August incident amounted to deliberate harassment, it was not satisfied beyond a reasonable doubt that the complainant feared for her personal safety or psychological well-being as required by s. 264.

The evidence of repeated following also did not rise above suspicion.

The accused was acquitted on all counts.

Sentencing decision following convictions for possession of a restricted weapon, possession of a loaded restricted firearm without a licence, and possession of a firearm knowing it had been obtained by crime.

The court emphasized denunciation and deterrence for loaded restricted handgun possession, particularly where the firearm was stored in a residence with very young children and the offender had a lengthy criminal record with continuing offending while on bail and in custody.

Applying the pre-sentence custody credit approach from Summers, the court granted enhanced credit at 1.5 to 1 but reduced it by two months because the offender’s custodial misconduct made full remission unlikely.

A sentence of four and one half years' imprisonment, less 23.5 months' credit, was imposed together with a lifetime weapons prohibition and DNA order.

The accused brought a motion for a directed verdict seeking acquittals on firearm possession charges, arguing the Crown had not led evidence capable of establishing knowledge of the firearm’s presence.

The Crown relied on circumstantial evidence linking the accused to a residence where a loaded 9 mm handgun and ammunition were found concealed in the master bedroom.

The court applied the directed verdict test and considered whether there was some evidence upon which a properly instructed jury could convict.

The court held that multiple pieces of circumstantial evidence supported an inference that the accused knew of and had control over the firearm.

The motion for a directed verdict was therefore dismissed.

The appellant was convicted of robbery and conspiracy after the trial judge found he was the driver of the getaway vehicle.

The appellant appealed, arguing the trial judge misapprehended the evidence and the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the inference that the appellant's van was the getaway vehicle was available given the circumstantial evidence, including his presence in a running van near the robbery scene in the middle of the night.