E. Evans

The accused, charged with sexual assault, brought an application under s. 276(2) of the Criminal Code to adduce text messages exchanged with the complainant before and after the alleged offence.

The accused argued the sexualized messages formed part of the subject matter of the charge or were otherwise admissible to show the complainant's state of mind and to challenge her credibility.

The court held that the messages did not form part of the subject matter of the charge and were subject to the s. 276 screening regime.

The court ruled the messages were inadmissible to show the complainant's state of mind regarding consent, as this relied on myth-based reasoning.

However, certain messages were admitted for the limited purpose of exploring material inconsistencies in the complainant's preliminary hearing evidence.

The accused, facing a retrial for sexual assault and extortion, brought an application under s. 276 of the Criminal Code to adduce three categories of evidence regarding the complainant's sexual activity.

The court held that evidence of non-consensual activity during the making of a video was inadmissible due to issue estoppel from a prior acquittal and as discreditable conduct.

Evidence of prior consensual sexual encounters was also excluded as it lacked sufficient probative value for the defence of honest but mistaken belief in communicated consent.

However, the court permitted cross-examination on the complainant's allegation that she was coerced into having sex with the accused's friends, finding it relevant to her credibility.

The offender was sentenced after convictions for child luring, making sexually explicit material available to a person believed to be underage, and possession of child pornography arising from prolonged online communications with an undercover officer posing as a 14-year-old and similar communications with other purported underage girls.

The court held that denunciation and deterrence were the paramount sentencing objectives under ss. 718 and 718.01 of the Criminal Code, particularly in light of Friesen, but gave meaningful weight to rehabilitation, the offender's very low assessed risk of reoffending, autism spectrum disorder, severe depression and anxiety, and sustained therapeutic engagement.

Although the court found a fit sentence to be less than two years, it rejected a conditional sentence as inconsistent with the gravity of the offences and the offender's moral blameworthiness.

A custodial sentence of two years less a day followed by two years' probation was imposed, with tailored ancillary orders including a limited s. 161 prohibition, DNA order, lifetime SOIRA order, and forfeiture of the laptop.

The applicant sought exclusion of computer and email evidence obtained through a search warrant and a Mutual Legal Assistance Treaty request, alleging material non-disclosure in the warrant materials.

The court held that omitted information concerning photographs used as a ruse to obtain an IP address and an adults-only click-through requirement on a website did not undermine reasonable and probable grounds for either authorization.

The court further found the omissions were inadvertent rather than deliberate, deceptive, or in bad faith.

The application under ss. 8 and 24(2) of the Charter was dismissed.

The offender pleaded guilty to uttering death threats against a police officer and possession of marijuana.

The court considered whether section 718.02 of the Criminal Code, which requires primary consideration of denunciation and deterrence for offences against peace officers, applies to uttering death threats.

The court concluded that a generous and liberal interpretation of section 718.02 includes uttering threats to a peace officer.

Emphasizing the need to protect police officers, the court sentenced the offender to a 30-day jail term, a 5-year weapons prohibition, a DNA order, and a victim fine surcharge.