Luba Bohdonna Szkambara

The accused was charged with assault by choking and two counts of sexual assault (anal penetration and breast touching) against a former intimate partner.

The court found the accused guilty of assault by choking and sexual assault by breast touching, but acquitted on the charge of sexual assault by anal penetration.

Key issues included the reliability of dated evidence, the application of the Browne v. Dunn rule regarding contradictory evidence, and the legal definition of consent, particularly concerning unconsciousness and bodily harm in a sexual context.

The court determined that a person cannot consent while unconscious and that repeated choking causing temporary unconsciousness constituted non-trifling bodily harm, vitiating any potential consent.

A fourteen-year-old youth was charged with second degree murder as a party to the offence (instigator) in connection with the stabbing death of a fifteen-year-old victim.

The Crown sought detention under section 29(2) of the Youth Criminal Justice Act.

The court found that while the youth had no prior criminal record, extensive Children's Aid Society records documented a pattern of severe and escalating violence toward his mother since May 2017, including assaults with weapons, threats, and dangerous behavior.

The court determined that detention was necessary for public protection and the safety of the victim (the mother), finding a substantial likelihood the youth would commit serious offences if released.

The court rejected the proposed release plan involving the mother and family members as sureties, finding they could not adequately control the youth's violent behavior and impulsivity.

The accused brought an application under s. 276(2) of the Criminal Code seeking leave to adduce evidence of the complainant’s sexual activity with a third party.

The defence argued that the evidence was relevant to explain bruising alleged to have resulted from the charged sexual assault and to support a theory that the complainant had a motive to fabricate allegations in order to remove the accused from the matrimonial home and pursue a relationship with the third party.

The Crown opposed the application and raised a preliminary objection to the use of the complainant’s preliminary inquiry testimony.

The court held that such prior testimony could be relied upon and that the proposed evidence constituted specific instances of sexual activity with significant probative value.

Balancing the accused’s right to make full answer and defence against the complainant’s privacy interests, the court concluded the evidence met the requirements of s. 276(2) and granted the application.