Marcela Ahumada

This ruling concerns a Crown application under s. 486.2(2) of the Criminal Code for the complainant in a sexual assault trial to provide evidence via closed-circuit TV (CCTV).

The complainant, SS, an 18-year-old, expressed fear of testifying in the courtroom with the accused (M.Z.) due to anxiety and past anxiety attacks, believing it would inhibit her ability to provide a full and candid account.

The court found that credible hearsay evidence from a VWAP caseworker was admissible for this procedural motion.

Applying the "facilitate" standard, which is less stringent than "necessary" and considering factors like the nature of the offence (sexual assault), the relationship between the witness and accused (position of trust), and society's interest in encouraging reporting, the court granted the application for CCTV testimony.

The defendant, L.R., faced two charges of sexual assault.

The first count involved sexual intercourse where the complainant alleged intoxication and lack of consent, while the defendant asserted consent.

The second count involved an alleged attempt to force oral sex.

The court analyzed the complainant's capacity to consent, considering her alcohol tolerance, a pre-existing sleep disorder, and video evidence.

The court found the complainant had the capacity to consent and did, in fact, consent to the sexual activity in the first count.

The court also found the second allegation highly improbable.

Consequently, both charges were dismissed.

The appellant appealed his conviction for robbery and aggravated assault, and sought leave to appeal his sentence.

The appellant argued that the trial judge improperly inferred guilt from disbelief of his testimony and that the robbery conviction was unreasonable, contending the theft was complete before the violence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no error in the trial judge's reasoning regarding the rejection of testimony or the continuous transaction for robbery.

The court also found the custodial sentence imposed was fit.

The Crown applied for an extension of time to serve and file a notice of application for certiorari to quash the respondent's discharge at a preliminary inquiry.

The Crown had served the notice on the respondent's former counsel, who failed to promptly inform the Crown that they were no longer retained.

The court found that the Crown acted with due diligence, as it was entitled to assume the former counsel was still acting, and that there was an arguable basis for the certiorari application.

The extension of time was granted.

The offender, an off-duty police officer, was convicted of assault for striking a young Black man in the face with a metal pipe while the victim was injured and seeking help.

The court emphasized the need for denunciation and general deterrence, noting the breach of public trust and the racialized context of the offence.

The offender was sentenced to 9 months in jail, followed by 12 months of probation, along with DNA, weapons prohibition, and non-communication orders.

Prior to the offender's sentencing, the Crown sought to file a community impact statement from the Black Action Defence Committee.

The defence objected to portions of the statement, arguing they exceeded the permissible scope under section 722.2 of the Criminal Code, and sought redactions.

The court held that while much of the statement provided necessary context regarding the impact of the offence on the Black community, two specific portions were irrelevant or inflammatory and required redaction.

The court otherwise declined to redact the statement, noting it would disregard any impermissible content.

The applicant, having been acquitted of aggravated assault but convicted of the lesser included offence of simple assault, applied to re-open the trial before sentencing.

The applicant argued that the court lacked jurisdiction to find him guilty of simple assault, asserting that aggravated assault under s. 268 of the Criminal Code does not contain a lesser included offence of assault.

The court declined to exercise its discretion to re-open the trial, emphasizing the principle of finality and noting the argument should have been raised during closing submissions.

The court also rejected the substantive argument, affirming that simple assault is a lesser included offence of aggravated assault.

The appellant requested a reconsideration of a Tribunal decision dismissing its appeal of a vehicle impoundment under the Highway Traffic Act.

The appellant argued the Tribunal erred in finding the vehicle was not stolen and in its application of the due diligence standard.

The Tribunal dismissed the reconsideration request, finding no error of law.

The original decision correctly required an intention to deprive the owner to establish the vehicle was stolen, which was absent as the employee was using the vehicle for company business.

Furthermore, the Tribunal correctly applied the due diligence standard, noting the appellant failed to verify the driver's licence validity.