S. Capogreco

The Crown sought to admit statements made by three defendants charged in relation to a first degree murder.

The defendants argued the statements were involuntary and obtained in breach of their Charter rights.

The court found all three statements were voluntary.

Mr. Kerr's statement was admitted despite a minor s. 10(b) breach.

Mr. Samuel's statement was admitted as no Charter breaches were established.

Ms. Owen's statement was excluded under s. 24(2) because she was arbitrarily detained and denied her right to counsel during the execution of a search warrant, and the court rejected the Crown's argument that the 'actus reus exception' precluded exclusion.

Following convictions after trial for seven counts of sexual assault, one count of assault with a weapon, and one count of assault against an intimate partner over the course of a marriage, the court imposed a global penitentiary sentence of four years.

The court emphasized denunciation and deterrence in intimate partner sexual violence cases, relied on the Court of Appeal's guidance that forced penetration typically attracts a sentence in the three-to-five-year range, and treated the prolonged pattern of abuse, the major victim impact, and the presence of the children during some assaults as aggravating.

Mitigating factors included the offender's lack of prior record, stable employment, family and community support, and collateral impact on his children.

DNA, sex offender registration, and weapons prohibition orders were also made.

Following a judge-alone trial on multiple allegations of sexual assault and assault within a marriage, the court accepted the complainant’s evidence as detailed, clear, and largely uncontroverted.

The defence alleged fabrication, motive arising from related family litigation, and manipulation of audio recordings and text messages, but the court rejected those submissions.

Applying the authentication requirements for electronic documents under s. 31.1 of the Canada Evidence Act, the court held that discrepancies in metadata timestamps did not establish tampering and admitted the electronic records.

The court found the accused guilty on seven counts of sexual assault, one count of assault with a weapon, and one count of assault, and acquitted on one assault-with-a-weapon count involving a car tire.