Linnea Kornhauser

The appellant was acquitted at trial on a charge of transmitting sexually explicit material to a child for the purpose of facilitating sexual assault or indecent exposure under s. 171.1(1)(b) of the Criminal Code.

The Court of Appeal set aside the acquittal and substituted a conviction, finding the trial judge erred in law by characterizing the appellant's conduct as merely flirtatious and by conflating the mens rea of the enumerated offence with that of the charged offence.

The Supreme Court of Canada upheld the conviction, confirming that to establish the inchoate offence under s. 171.1(1)(b), the Crown need only prove the accused transmitted sexually explicit material for the purpose of facilitating a listed offence, not that the accused intended to commit that offence.

The Court affirmed that facilitating includes grooming a child by reducing inhibitions or exploiting immaturity.

The Court added that characterizing an adult's sexualized conduct toward a child as flirtatious is a serious mischaracterization with no place in criminal justice proceedings involving sexual violence against children.

The appellant appealed his conviction for serious sexual offences committed in 1986 against two women.

The Crown's similar-fact application was granted at trial.

The appellant challenged the trial judge's findings regarding lost evidence, arguing that the loss of the Murdock investigative file constituted unacceptable negligence and that the trial judge failed to adequately address the integrity of the justice system regarding conceded negligent loss of evidence in the English file.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the governing legal framework, made findings supported by the record, and exercised her remedial discretion judiciously.

The court held that the trial judge's conclusion that the purging of the Murdock brief in accordance with retention policy was not unacceptable negligence was reasonable, and that even if error existed, it was harmless as the trial judge proceeded to a full remedial analysis.

Regarding the English file, the court found the trial judge adequately addressed the integrity issue and that proportionate alternatives to a stay of proceedings were appropriate.

The Court of Appeal for Ontario allowed the conviction appeals of William McDonald (second-degree murder) and Thomas Lako (manslaughter) arising from the 2012 shooting death of Jonathan Zak.

The court found that the trial judge erred in admitting a hearsay police statement from a deceased witness for the truth of its contents and in failing to adequately caution the jury regarding discreditable conduct evidence.

The court ordered new trials for both appellants.