Mary T. Ainslie

The Crown appealed after the British Columbia Court of Appeal set aside a second degree murder conviction, holding that hearsay testimony from the accused's brother regarding an overheard phone call in which the accused admitted to killing the victim was inadmissible.

The majority of the Supreme Court of Canada held that the trial judge did not err in admitting the brother's testimony as a party admission: the evidence was capable of non-speculative meaning and thus relevant, it fell within the party admission exception to the hearsay exclusionary rule, and the trial judge did not err in the discretionary balancing of probative value against prejudicial effect.

The Court also held there was no error in the trial judge's answer to the jury's mid-deliberation question regarding the definition of bodily harm.

The dissenters agreed with the majority's analytical framework but concluded that, on the facts, assessing the relevance of the overheard statements was an exercise in pure speculation and the evidence should not have been admitted.

The Crown appealed a majority decision of the Court of Appeal for British Columbia that ordered a new trial for an accused convicted of sexual assault and sexual interference.

The Court of Appeal majority found the trial judge erred in the jury charge regarding the indictment, in responding to the jury's question during deliberations, and in failing to provide further credibility instructions.

The Supreme Court of Canada allowed the appeal substantially for the reasons of the dissenting judge, finding the trial judge's charge and response to the jury's question were adequate.

Three additional issues raised by the respondent for the first time at the Supreme Court — character evidence limiting instruction, prior consistent statements, and interpretation of 'single transaction' under s. 581(1) of the Criminal Code — were addressed but did not require a new trial.

Convictions for sexual assault restored and judicial stay on sexual interference count maintained.

In a manslaughter sentencing appeal, the Court addressed when a trial judge may reject a joint submission following a guilty plea.

It held that departure is permitted only where the proposed sentence would bring the administration of justice into disrepute or otherwise be contrary to the public interest, rejecting a simple fitness approach.

Applying that standard, the Court found the trial judge erred in principle by substituting a modestly longer custodial term and adding probation despite the negotiated resolution and systemic interests in certainty.

The appeal was allowed and the sentence was varied to match the joint submission of additional custody without probation.

On a criminal appeal concerning refusal to provide a breath sample, the Court addressed the burden applicable to proving a reasonable excuse under s. 794(2) of the Criminal Code.

The Court confirmed that the provision imposes a persuasive burden on the accused to establish an exception, exemption, proviso, excuse, or qualification prescribed by law.

The Court declined to address new issues advanced by interveners.

The appeal was dismissed, leaving the conviction in place.

The court addressed sentencing for breaches of long-term supervision orders by Indigenous long-term offenders and reaffirmed the mandatory application of Gladue principles in every such case.

It held that sentencing judges must consider systemic and background factors and craft proportionate, individualized sanctions even for serious breaches tied to risk management.

In the first appeal, errors in principle required intervention and the custodial term was reduced to one year.

In the second appeal, the one-year sentence imposed by the appellate court was upheld.