Mariah Calamai

The accused was charged with sexual assault following an incident at a motel in Deep River.

The complainant and her friend met the accused and his co-worker at a bar, and later returned to the accused's motel room.

While in the room, the accused suddenly pushed the complainant onto the bed and removed her pants without her consent.

The complainant's friend intervened immediately.

The central issue was whether the complainant communicated consent to the removal of her pants.

The court found that friendly conduct, conversation, physical proximity, and presence in the motel room did not constitute communicated consent to sexual touching.

The accused was convicted of sexual assault.

T.S. was found guilty of sexual assault (s. 271 Criminal Code) following a two-day trial.

The court considered the circumstances of the offence, which involved non-consensual vaginal penetration and a betrayal of trust with a long-standing friend, and the significant impact on the victim.

Mitigating factors included T.S. being a first-time offender, suffering from ADHD and likely other cognitive deficiencies, and having family support.

Aggravating factors were the betrayal of trust and the profound victim impact.

Applying sentencing principles, particularly denunciation and deterrence, and guided by the three-year starting point for forced penetration sexual assaults articulated in R. v. A.J.K., the court imposed a three-year penitentiary sentence, finding no "highly mitigating factor" to warrant a lesser sentence despite T.S.'s cognitive challenges.

Ancillary orders were also made.

The accused, Tyler Moore and Rhonda Moore, brought a Charter application alleging violations of their section 7 and 11(d) rights due to the unacceptable loss of crucial pole camera surveillance footage.

This footage was used by the police to obtain search warrants for their residence in a drug trafficking investigation.

The court found that while police were not required to obtain a general warrant for the pole camera (as it captured publicly viewable areas), the Ontario Provincial Police (OPP) were unacceptably negligent in failing to preserve the raw video data.

The officers' notes were deemed an inadequate substitute for the original footage.

As a remedy, the court denied the request for a stay of proceedings, finding it was not one of the "clearest of cases" where a fair trial was impossible.

Instead, the court ordered the excision of all paragraphs referring to the covert surveillance video from the Informations to Obtain (ITOs) sworn to obtain the search warrants.