Emma Evans

The court dismissed the conviction appeal in a sexual assault case, finding no reversible misapprehension of evidence, no misuse of the complainant's voice note despite the absence of a voir dire, and no uneven scrutiny.

It granted leave to appeal sentence but dismissed the sentence appeal as the sentence was fit and within range.

Malachi Brown was found guilty by a jury of assault with a weapon and using an imitation firearm while committing an assault with a weapon.

The court addressed the Kienapple rule, determining it did not prevent multiple convictions for these offences due to Parliament's intent to displace it for s. 85 of the Criminal Code.

Considering aggravating factors (use of imitation firearm, victim's age, breach of trust) and mitigating factors (first offender, youth, family support, anti-Black racism social context), the court sentenced Brown to a total of eighteen months imprisonment, to be served as a conditional sentence in the community, followed by two years of probation.

A ten-year weapons prohibition and a DNA order were also imposed.

Following a jury conviction for two counts of sexual interference and one count of invitation to sexual touching involving a 14-year-old victim, the court sentenced the offender on a joint submission.

The court treated the abuse of a child, abuse of a position of trust, threats to suppress reporting, and repeated incidents as significant aggravating factors, while also considering youth and first-offender status as mitigating factors.

Applying the sentencing principles governing sexual offences against children, the court accepted a sentence of two years less a day followed by 18 months' probation.

The court also ordered counselling that could include phallometric testing if deemed necessary by treatment professionals, imposed a 10-year s. 161 prohibition order, a DNA order, a no-contact order, and a 20-year sex offender registration order.

Following a jury verdict finding the accused guilty of sexual interference and related offences, the accused applied for a mistrial based on a note from the jury complaining about transportation difficulties during deliberations.

The trial judge dismissed the application, holding that a trial judge is functus officio and lacks jurisdiction to declare a mistrial after the jury has been discharged, except to correct an error in recording the verdict.

Furthermore, even if jurisdiction existed, the accused failed to establish a real danger of prejudice or a miscarriage of justice, as there was no evidence the transportation issues affected the jury's deliberations.

The accused, Ubaidullah Patel, facing charges including sexual assault, applied under s. 276 of the Criminal Code to cross-examine the complainant, C, about a prior incident where C was allegedly discovered viewing pornographic material and masturbating in a place of worship.

Patel argued this evidence was relevant to show C's motive to fabricate the allegations, fearing disclosure of his own conduct.

The Crown and complainant argued the evidence was irrelevant due to a one-month delay in reporting and potential prejudice.

The court found the evidence relevant to the issue of motive to fabricate and that its significant probative value was not substantially outweighed by the danger of prejudice, allowing the cross-examination but limiting it to the specific incident.

The accused, T.K., charged with sexual interference and sexual assault, brought an application under section 278.4 of the Criminal Code seeking production of the complainant's and witnesses' electronic communications and photos/videos from a specific period.

The defence argued these records were relevant to the accused's belief regarding the complainant's age and consent.

The Crown and witnesses opposed, citing privacy and arguing the records were not necessary for full answer and defence.

The court, applying section 278.5(2) factors, found potential relevance and ordered the records to be produced for judicial review to determine if they are necessary for full answer and defence, balancing privacy interests against the accused's right to defence.

The court sentenced the offender for two counts of sexual interference arising from separate incidents involving two 15-year-old victims, after staying related sexual assault convictions under the Kienapple principle.

Applying the sentencing guidance for child sexual offences, the court emphasized denunciation and deterrence, the multiplicative gravity created by multiple child victims, the repeated abuse of one victim, the serious physical violations involved, and the severe ongoing psychological harm described in victim impact statements.

Although the offender had a limited unrelated record, employment history, family support, and no identified current substance or mental health issues, those mitigating factors did not materially reduce the need for a lengthy penitentiary sentence.

A global sentence of seven years was imposed, with consecutive terms of four years and three years, less 11 days' credit, together with ancillary DNA, SOIRA, weapons, non-communication, and child-contact prohibitory orders.

The accused was tried on sexual assault and sexual touching counts involving two 15-year-old complainants arising from separate incidents at the same apartment during the same summer.

The court admitted the evidence of each complainant as similar fact evidence on the other counts, applying the Handy framework and finding substantial similarities, strong probative value, and no air of reality to allegations of collusion.

Applying the W.(D.) framework, the court rejected the accused’s testimony as incredible and found both complainants credible, internally consistent, and corroborated by surrounding evidence, including expert medical evidence respecting healed genital injury to one complainant.

Convictions were entered on all remaining counts.

The accused was tried on charges of sexual assault, sexual touching of a person under 14 for a sexual purpose, and assault arising from alleged historic abuse of his stepdaughter.

The court applied the W.(D.) framework, reviewed the law governing proof beyond a reasonable doubt, child witness evidence, and impermissible myths and stereotypes in sexual assault cases.

Although the complainant testified in a straightforward manner, the court found significant inconsistencies and gaps in the Crown’s evidence, while finding the accused’s denial internally consistent and plausible.

The court was left with a reasonable doubt on all counts and acquitted the accused.

The Crown brought a motion for directions to determine whether it could introduce evidence of the young complainant's lack of prior sexual activity in a sexual assault trial, and whether the complainant had standing at the resulting voir dire.

The court held that the Crown may introduce such evidence, subject to the common law Seaboyer principles and the factors in section 276 of the Criminal Code.

The court further held that unlike when an accused seeks to introduce such evidence, the complainant does not have automatic standing to participate in a voir dire when the evidence is led by the Crown.

The defendant pleaded guilty to possessing child pornography between May 9, 2017 and November 29, 2017.

Following the abolition of the mandatory minimum sentence under R. v. John, the court imposed a sentence of 90 days intermittent jail and probation.

The defendant, a 66-year-old educator with no prior criminal record, possessed 65 unique images and 4 duplicate images of child pornography depicting children aged approximately 5 to early teenage years.

The court balanced significant aggravating factors (the nature and number of images, extreme close-ups of genitals, one image depicting a child performing fellatio) against substantial mitigating factors (early guilty plea, genuine remorse, successful completion of residential sexual addiction treatment, strong community support, low risk of reoffending, and no evidence of production or distribution).

J.C. was charged with sexual assault and voyeurism (Counts 1 & 2) and extortion and sexual assault (Counts 3 & 4).

The court acquitted J.C. on Counts 1 and 2, finding insufficient evidence to prove beyond a reasonable doubt that the complainant, H.D., was incapable of consenting or that the video was made surreptitiously.

However, the court convicted J.C. on Counts 3 and 4, finding that he extorted sexual favours from H.D. by threatening to post a compromising video online, and that H.D. did not consent to subsequent sexual acts due to duress and power imbalance.

Michael Casey was charged with aggravated assault, assault with a weapon, and possession of a weapon.

The central issue at trial was the identification of the assailant.

The victim, Michael Greer, identified Casey, but his testimony was found to be unreliable due to significant intoxication during the incident, memory issues, inconsistent descriptions of the assailant over time, and attempts to avoid testifying or recant his statement for monetary gain.

The court highlighted the inherent frailties of identification evidence, particularly in-dock identification, and found that the Crown failed to prove beyond a reasonable doubt that Casey was the perpetrator.

Casey was acquitted on all counts.

The accused was charged with sexual assault, assault, and breach of bail conditions arising from a short-lived relationship with the complainant.

The Crown's case relied almost entirely on the testimony of the complainant.

The court found the complainant's evidence to be highly inconsistent, contradictory, and in some instances, entirely fabricated, including a bizarre story about being threatened by the mafia disguised as police officers.

Applying the principles of reasonable doubt to credibility findings, the court concluded it was impossible to determine which material parts of the complainant's testimony were true.

The accused was acquitted on all counts.

The Crown applied to adduce similar fact evidence of prior discreditable conduct by the accused, involving two other complainants in different cities.

The Crown argued the accused had a modus operandi of seeking out vulnerable women in homeless shelters or transit, engaging in short intense relationships, and committing sexual assaults accompanied by physical violence.

Applying the Handy framework, the court found the proposed evidence lacked sufficient similarity and strength, noting significant dissimilarities in the circumstances and weaknesses in the prior evidence.

The court concluded the evidence had little probative value and its admission would cause undue moral prejudice.

The application was denied.

The accused was charged with uttering a threat to cause death to his former wife and counselling a tenant to commit her murder following an acrimonious divorce.

The Crown's case relied heavily on the testimony of two witnesses who claimed the accused repeatedly asked them to procure a gun.

The court found both witnesses to be highly unreliable due to severe substance abuse, memory issues, and significant inconsistencies in their evidence.

Concluding that the Crown failed to prove the specific intent and the actus reus beyond a reasonable doubt, the court acquitted the accused on both counts.