Meaghan Elizabeth Cunningham

The appellant appealed convictions for sexual assault and sexual interference, arguing the trial judge erred by finding a proven absence of motive to fabricate or, alternatively, by improperly using the absence of evidence of motive to fabricate to bolster the complainant's credibility.

The Court of Appeal held the trial judge did not find a proven absence of motive but rather found no single motive could explain all disclosures, and that the absence of evidence of motive to fabricate was properly considered as one factor among many in the credibility assessment without undue weight.

The appellant appealed his conviction on charges of sexual assault and sexual interference, challenging the Ontario Court of Justice judge's refusal to permit him to re-elect trial mode without Crown consent under section 561(2) of the Criminal Code.

The appellant had initially elected trial in the Ontario Court of Justice in August 2020, but sought to re-elect to Superior Court of Justice with judge and jury in January 2021.

The central issue was the proper interpretation of "the day first appointed for the trial" for purposes of the 60-day deadline to re-elect without Crown consent.

The Court of Appeal dismissed the appeal, holding that November 19, 2020—when a section 278.3 application regarding third-party records was scheduled—constituted the day first appointed for trial, making the deadline for re-election September 20, 2020.

The appellant's January 2021 re-election was therefore untimely.

This decision concerns the prosecution of five members of the 2018 Canadian World Junior Hockey Team for sexual assault.

The complainant, E.M., alleged that after consensual sexual activity with Michael McLeod, she was sexually assaulted by McLeod and his teammates in a London hotel room.

The accused maintained that E.M. was a willing and active participant.

The court found significant inconsistencies and reliability issues in the complainant’s evidence, including contradictions with video evidence and other witness testimony.

The court concluded that the Crown had not proven the absence of consent beyond a reasonable doubt for any of the accused and acquitted all five.

The judgment provides a detailed analysis of the law of consent, credibility, and the use of myths and stereotypes in sexual assault trials.

This decision addresses the Crown's application to admit a text message as hearsay evidence under the principled exception in a high-profile sexual assault prosecution.

The court reviews the necessity and reliability requirements for hearsay, ultimately finding that the reliability threshold is not met and dismissing the application.

The ruling provides a detailed application of the Supreme Court’s guidance in R. v. Bradshaw and R. v. Charles on the dangers of hearsay and the use of corroborative evidence.

The Crown sought to admit a text message sent by Brett Howden to Taylor Raddysh as past recollection recorded, an exception to the hearsay rule.

The court reviewed the requirements for admissibility, including reliability, timeliness, absence of memory, and the witness’s ability to vouch for the accuracy of the record.

The court found that while the first three requirements were met, Mr. Howden could not vouch for the accuracy of the text message, as he had no memory of sending it and could not confirm its truthfulness.

As a result, the application to admit the text message as past recollection recorded was denied.

This decision addresses a defence motion for a mistrial after a jury note alleged unprofessional conduct by defence counsel, raising concerns about jury impartiality.

The court reviews the legal principles governing mistrials, including the presumption of jury impartiality, the test for reasonable apprehension of bias, and the discretion to discharge jurors or declare a mistrial.

The court finds that the fairness of the trial has been compromised and grants the motion for a mistrial, emphasizing that such a remedy is reserved for the clearest of cases where no other remedy will suffice.

Danielle Leblanc, initially charged with first-degree murder, pleaded guilty to obstruction of justice after providing a statement that led to her common-law spouse's second-degree murder plea.

The court considered the unique circumstances of Leblanc being a victim of severe and prolonged domestic violence by the murderer, which significantly reduced her moral blameworthiness.

Despite the seriousness of obstructing justice in a murder investigation, the court granted a conditional discharge with 12 months probation, emphasizing proportionality and the limited application of general deterrence in cases involving battered women.

The Crown brought an application to remove the accused's counsel of record due to a conflict of interest.

The defence counsel's daughter and colleague had previously provided legal advice to the complainant upon her arrest for impaired driving.

The defence counsel intended to cross-examine the complainant using records from that impaired driving charge.

The court found that a solicitor-client relationship existed between the complainant and the firm, creating a clear conflict of interest.

The application was granted and counsel was removed to preserve the public perception of fairness in the administration of justice.

The applicant, charged with human trafficking and prostitution-related offences, brought a constitutional challenge arguing that ss. 286.2(1), 286.3(1) and 286.4 of the Criminal Code violate s. 7 of the Charter.

The applicant relied on a previous Superior Court decision that declared the provisions invalid.

The court found the previous decision to be plainly wrong, as it misidentified the purpose of the legislative scheme and incorrectly interpreted the provisions.

Applying the correct statutory interpretation, the court held that the provisions are rationally connected to their objectives, are not overbroad, and do not have grossly disproportionate effects.

The application was dismissed.

The offender pleaded guilty to eight charges, including possession of firearms for a purpose dangerous to the public peace and mischief to property, after ramming his truck into the gates of Rideau Hall and engaging in a 90-minute armed standoff with police.

The offender, motivated by political grievances and conspiracy theories, sought to confront the Prime Minister.

The court found the offences to be a politically motivated armed assault intended to intimidate the government, requiring strong denunciation and deterrence.

The offender was sentenced to 6 years' imprisonment, less credit for pre-sentence custody.

The Crown applied to have Jacques Rouschop declared a dangerous offender and sought an indeterminate sentence.

Rouschop, convicted of multiple sexual and violent offenses, conceded he met the criteria for a dangerous offender but argued for a lesser sentence with a Long Term Supervision Order.

The court, considering psychiatric evidence of high reoffending risk due to Antisocial and Narcissistic Personality Disorders and severe psychopathy, and Rouschop's continued violent and sexual conduct in custody, found no reasonable expectation that a lesser measure would adequately protect the public.

An indeterminate sentence was imposed, along with ancillary orders.

During a dangerous offender hearing, the Crown sought to introduce new evidence alleging the offender sexually touched and choked two fellow inmates.

The defence opposed the admission, citing choice of counsel conflicts, delay, and lack of advance notice.

The court granted the Crown's request, ordering a voir dire with independent counsel for the offender to determine if the new allegations could be proven beyond a reasonable doubt.

A voir dire decision addressing the admissibility of evidence regarding the complainant's sexual activity during captivity.

The Crown sought to elicit evidence through cross-examination of the defendant regarding his reasons for having children with the complainant while in captivity, arguing it was relevant to his credibility.

The court found the evidence had minimal probative value and that its prejudicial effect substantially outweighed any probative value.

The court excluded the evidence and emphasized the importance of pre-trial applications and proper procedure when Crown seeks to adduce evidence of prior sexual activity.

The accused was charged with 19 offences including sexual assault with a weapon, assault, uttering death threats, criminal harassment, unlawful confinement, and causing the complainant to take a noxious thing.

The Crown sought to admit expert evidence from Dr. Deborah Sinclair regarding the dynamics of domestic violence, traumatic bonding, coercive control, and victim behaviour.

The defence opposed admission on grounds of relevance, necessity, expert qualification, and impartiality.

The court conducted a voir dire to determine admissibility of the expert evidence.

This is a voir dire decision determining the admissibility of evidence of prior sexual activity between the complainant and the accused, led by the Crown during trial.

The court considered whether evidence of consensual sexual conduct on other occasions, including details of BDSM activities and statements made by the accused on multiple occasions, should be admitted.

The court applied the principles established in R. v. Seaboyer and the statutory framework of section 276 of the Criminal Code, balancing the probative value of the evidence against potential prejudice to the complainant's privacy rights and the interests of justice.

The court admitted the evidence, finding it relevant to issues beyond the "twin myths" and that any interference with the complainant's privacy was justified by the interests of justice.

The court ruled on whether a complainant implicitly waived solicitor-client privilege by testifying in cross-examination that she had sought legal advice from her lawyers before giving media interviews while subject to a witness exclusion order.

The court held that the complainant did not implicitly waive her privilege.

The court applied a principled approach considering the fundamental nature of solicitor-client privilege, the requirement of voluntary action by the privilege holder, and the significance of the evidence arising during compelled cross-examination.

The court concluded that fairness and consistency did not require waiver in these circumstances.

The Crown brought an application for a publication ban and sealing order on a victim impact statement.

The victim, who was the subject of threatening and harassing communications, indicated she would only file a victim impact statement if its contents were protected from publication.

The court declined to grant the publication ban, finding that while the victim's concerns were understandable, the open court principle and the public's right to know outweighed the interests in protecting the statement's contents.

The court noted that victim impact statements are not compellable and that courts regularly proceed without them.

The accused was charged with 19 offences including sexual assault with a weapon, assault, uttering death threats, criminal harassment, unlawful confinement, and related offences.

During trial, the defence sought to introduce excerpts from the complainant's psychologist records under section 278.94 of the Criminal Code.

The court ruled on the admissibility of two excerpts: the first, a prior inconsistent statement regarding the timing of assaults, was admitted as it had significant probative value for impeaching credibility; the second, regarding the absence of mention of a specific assault, was excluded as the defence failed to establish a rational basis for the inference that the omission was relevant to whether the assault occurred.

The accused brought an application under s. 276(2) of the Criminal Code seeking to adduce evidence of other sexual activity of the complainant.

The complainant sought to cross-examine the accused on his affidavit in support of the application.

The court determined whether the complainant's statutory right to "appear and make submissions" under s. 278.94(2) and (3) includes the right to cross-examine the accused.

The court held that the right to appear and make submissions must be meaningful and includes the right to cross-examine the accused on issues relevant to the application.

The court considered whether section 278.92 of the Criminal Code prohibits defence counsel from putting the contents of a private record to a complainant during cross-examination without first obtaining a court order.

The accused was charged with 19 offences including sexual assault with a weapon, assault, uttering threats, criminal harassment, unlawful confinement, and public mischief.

Defence counsel sought to cross-examine the complainant regarding statements she allegedly made to a health care provider that appeared inconsistent with her trial testimony regarding the timing of alleged incidents.

The Crown objected, arguing that section 278.92 required a court order before any contents of the private record could be put to the complainant.

The court held that an order under section 278.92 is required before defence counsel may put to a witness the contents of a record in the possession of the defendant in which the complainant had a reasonable expectation of privacy.