Maxime Hébrard

The appellant was charged with sexual assault arising from events in which the complainant, after consuming alcohol, suffered partial amnesia regarding the evening's events including most of the sexual activity.

The trial judge acquitted the appellant, finding the actus reus not established for the first series of sexual acts in the park because the Crown failed to prove the absence of the complainant's consent, and accepting that the appellant had an honest but mistaken belief in consent regarding the second series at his home even though the complainant lacked capacity there.

A majority of the Court of Appeal found errors of law in the trial judge's treatment of the evidence, specifically the improper use of the accused's testimony as direct evidence of the complainant's subjective consent and the failure to consider a large body of circumstantial evidence regarding the park incidents.

The majority of this Court dismissed the appeal, holding that the trial judge erred in law by treating direct evidence from the complainant as a requirement for establishing non-consent and by failing to consider all relevant circumstantial evidence, errors that had a material bearing on the acquittal.

The dissent would have allowed the appeal and restored the acquittal, finding that the trial judge properly considered all the evidence and that the majority's intervention amounted to interference with questions of fact.

The accused voluntarily made admissions during a treatment process concerning acts of a sexual nature committed against a child.

Those admissions were sent to the director of youth protection and then to police with the accused's consent.

The accused was charged with sexual assault and filed a motion to exclude the admissions, which the trial judge dismissed.

The Court of Appeal entered an acquittal on the basis that the admissions were inadmissible.

The Supreme Court, in a majority decision, allowed the Crown's appeal on the sole issue of the accused's consent to disclosure of his admissions, restoring the conviction.

The dissenting judge would have dismissed the appeal substantially for the reasons of the Court of Appeal majority.

The Crown appealed a conditional sentence imposed on an offender convicted of historical sexual offences (gross indecency) committed between 1979 and 1987.

The conditional sentence had not existed at the time the offences were committed, was available for a discrete intermediate period, but was no longer available under the sentencing provisions in force at the time of sentencing in 2017.

The majority held that s. 11(i) of the Charter confers a binary right — entitling an offender only to the lesser of the punishments applicable at the time of the offence and at the time of sentencing — and not a global right to the least onerous punishment available at any point in the intervening interval.

The dissent would have dismissed the appeal as moot following the respondent's death and would have upheld 30 years of consistent judicial interpretation giving s. 11(i) a global reading.

The appeal was allowed, though no new sentence was imposed given the respondent's death.