Jamie C. Klukach

The appellants appealed their convictions for sexual assault, arguing the trial judge erred in dismissing their mid-trial application to cross-examine the complainant about her past sexual activity under s. 276(2) of the Criminal Code, and in failing to provide a limiting instruction on the use of her prior consistent statements.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in balancing the probative value and prejudicial effect of the proposed evidence.

The Court also held that a limiting instruction was unnecessary as the prior consistent statements were responsive to the defence's allegation of recent fabrication.

The appellant appealed historical sexual offence convictions arising from abuse alleged to have occurred more than 30 years earlier.

The principal issue was whether the trial judge erred in dismissing a pre-trial application for a stay based on unreasonable delay under s. 11(b) of the Charter.

The court reallocated portions of the delay, found approximately 26 months of institutional and Crown delay, and held that although actual prejudice was not established, significant prejudice had to be inferred from the length of the delay and the inadequate justification for it.

Balancing the appellant’s Charter interests against the strong societal interest in a trial on the merits, the court concluded that a stay should have been ordered.

The evidentiary complaints about the recorded police interview were rejected.

The Crown appealed acquittals on sexual assault and indecent assault charges arising from historical child abuse allegations.

The Court of Appeal held that the trial judge erred in law by treating mere opportunity for indirect contact as giving rise to an air of reality to collusion, and by misanalyzing the probative value and prejudicial effect of the proposed similar fact evidence.

Applying the similar fact evidence framework, the court held the judge adopted an impermissibly formulaic comparison of similarities and dissimilarities and overstated reasoning prejudice in a judge-alone trial.

The errors materially affected the acquittal, and a new trial was ordered.

The respondents challenged the constitutionality of three Criminal Code provisions relating to prostitution: operating a common bawdy-house, living on the avails of prostitution, and communicating for the purpose of prostitution.

The application judge struck down all three provisions as violating section 7 of the Charter.

On appeal, the Court of Appeal upheld the striking down of the bawdy-house provision (suspended for 12 months) and read in an exploitation requirement to the living on the avails provision.

However, the Court of Appeal reversed the application judge's decision on the communicating provision, finding it did not violate the principles of fundamental justice and was a justified limit on freedom of expression, binding the lower court to the Supreme Court's previous decision in the Prostitution Reference.

The respondents were charged with wilfully promoting hatred against the Roma people after participating in a demonstration outside a motel housing Roma refugee claimants.

The trial judge acquitted the respondents, finding the Crown failed to prove that the term 'gypsies' used in the demonstration was interchangeable with 'Roma'.

The Court of Appeal dismissed the Crown's appeal.

The Supreme Court of Canada allowed the appeal and ordered new trials, holding that the trial judge erred in law by focusing solely on the interchangeability of the terms rather than considering the totality of the evidence, and that he should have taken judicial notice of dictionary definitions linking the two terms.

The Crown appealed an acquittal, narrowing its argument to whether the trial judge unreasonably found that the respondent might have acted differently absent admitted breaches of the right to counsel.

The Court of Appeal held that the trial judge's finding under s. 24(2) was open on the record, particularly given the prolonged custodial detention, language barrier, and delayed meaningful access to counsel information.

Applying the governing approach to uncertainty in causation following a s. 10(b) breach, the court held that the Crown had not displaced the inference that timely compliance could have changed the respondent's conduct.

The appeal was dismissed.

The accused, a pediatrician, was charged with sexually assaulting four teenage female patients.

At trial, the defence sought to introduce expert psychiatric evidence that the perpetrator of such offences would belong to a narrow class of individuals (e.g., pedophiles or sexual psychopaths) and that the accused did not possess the characteristics of this class.

The trial judge excluded the evidence, but the Court of Appeal ordered a new trial.

The Supreme Court of Canada allowed the Crown's appeal and restored the convictions, establishing a four-part test for the admission of expert evidence: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.

The Court held the psychiatric evidence was inadmissible as it lacked sufficient reliability and necessity to overcome the exclusionary rule against character evidence.

The appellant was convicted of aggravated assault following a stabbing during a fight.

At trial, he admitted to punching the victim but claimed a third party committed the stabbing, and adduced evidence of the third party's prior violent acts.

The trial judge instructed the jury that the third party's criminal record was only relevant to credibility, and that the appellant's flight from the scene could be considered in reaching a verdict.

The Supreme Court of Canada held that the trial judge erred by failing to instruct the jury that the third party's propensity for violence could support the defence theory, and by failing to warn that the appellant's flight was equally consistent with the admitted lesser offence of common assault.

The appeal was allowed and a new trial ordered.

The appellant challenged his conviction for spreading false news arising from publication of a pamphlet denying the Holocaust.

The Supreme Court held, by majority, that s. 181 of the Criminal Code infringed freedom of expression under s. 2(b) of the Charter because it criminalized a broad range of expression, including false statements, and that the provision could not be justified under s. 1.

The majority found the provision lacked a pressing and substantial objective demonstrably tied to Parliament's intent and was overly broad and disproportionate in its reach.

The appeal was allowed, an acquittal was entered, and the dissent would have upheld the provision as a justified limit aimed at preventing serious harm caused by deliberate injurious lies.

The appellant was convicted of using a forged document after signing his wife's name on a joint cheque and cashing it.

At trial, his wife testified for the Crown, denying she gave him authority.

At the time, the spouses were separated without any reasonable possibility of reconciliation.

The Supreme Court of Canada dismissed the appeal, holding that the common law rule making a spouse an incompetent witness for the prosecution should be changed to allow spouses who are irreconcilably separated to testify.

The Court found that the traditional policy justifications for the rule, such as preserving marital harmony, do not apply when the marriage has irrevocably broken down, and that the rule is inconsistent with Charter values respecting individual choice and equality.