L. Schwalm

The appellant appealed his assault conviction, arguing the trial judge erred by refusing to grant an adjournment when the Crown disclosed a photograph of the complainant's injuries on the day of trial.

The summary conviction appeal judge found that the trial judge properly exercised her discretion, as the appellant could not articulate how the late disclosure prejudiced his ability to make full answer and defence.

The appeal was dismissed.

The accused applied for certiorari to quash a preliminary inquiry committal for first degree murder on the basis that the Crown had not led evidence capable of supporting the predicate offence of sexual assault required under s. 231(5)(b) of the Criminal Code.

The evidence established that the accused’s semen was found in the deceased’s mouth and that the deceased died from neck compression during a violent encounter in her apartment.

The court held that while there was evidence of both a sexual act and a homicide, there was no evidence linking the sexual act to non-consensual activity or establishing that the death occurred while committing or attempting to commit sexual assault.

The preliminary inquiry judge’s inference that the sexual activity was non-consensual improperly conflated the violent killing with the earlier sexual act and relied on speculation rather than evidence.

The committal for first degree murder was therefore quashed, but the accused was ordered to stand trial for second degree murder.

The Crown applied for certiorari to review a preliminary hearing judge's decision discharging the accused on firearm charges.

The preliminary hearing judge found there was 'no evidence' the object used in the robbery was a firearm because it was not recovered or fired.

The Superior Court granted the application, finding the judge committed jurisdictional error by failing to consider circumstantial evidence, such as the complainant's testimony about the object's appearance and use, which could allow a reasonable jury to infer it was a firearm.

The matter was remitted with an order of mandamus directing committal for trial on the firearm offences.