Mathieu Locas

The appeal considered whether Criminal Code s. 725(1)(c) allows sentencing judges to treat as aggravating facts conduct that could ground a separate charge where such a charge had previously been laid but was no longer pending.

A majority held that the provision applies in those circumstances, provided the separate charge remained legally possible at sentencing and procedural fairness is preserved.

The Court emphasized Crown duties of fairness, including timely disclosure of aggravating facts and avoidance of ambush in plea contexts.

It found no reviewable sentencing error and restored the original sentence.

The dissent would have found unfair use of the evidence and upheld the reduced sentence.

The appellant was convicted of assault with a weapon, using an imitation firearm in the commission of an assault, and uttering threats following an incident at a school.

The Crown adduced an out-of-court written statement of a Crown witness who claimed at trial to have no recollection of the events, seeking to admit it under the principled exception to the hearsay rule.

The majority of the Supreme Court held that the trial judge erred in finding threshold reliability established: the search results confirming the location of the pistols lacked a logical connection to the accused's degree of involvement and thus could not corroborate that material aspect of the statement, and the circumstances surrounding the statement — including the accomplice's potential motive to shift blame — did not overcome the specific hearsay dangers.

The majority further held that the Court of Appeal erred in relying on the complainant's trial testimony, not tendered in the voir dire, to establish threshold reliability; the appropriate mechanism on appeal was the curative proviso, which could not apply on the facts.

The convictions were quashed and a new trial ordered.