Megan Savard

This judgment concerns the trial of Evan Dunlop-Dewar on sexual assault charges.

The court first provided reasons for preliminary rulings, including the severance of counts and the exclusion of the defendant's statement due to Charter Section 10(b) breaches and involuntariness.

Regarding the October 30th sexual assault allegation, the court found significant difficulties with the complainant's credibility and reliability, noting inconsistencies in her testimony, under-reporting of drug use, and evasive demeanour under cross-examination.

Despite forensic evidence of sexual contact, the Crown failed to prove the essential element of lack of consent beyond a reasonable doubt, as there was no direct evidence and circumstantial evidence did not establish incapacity.

The defendant was acquitted on counts 2, 3, and 4.

A five-year common-law peace bond was imposed, prohibiting contact and association with the complainant, with specific geographic considerations for their shared industry.

This is a motion brought by Raed Jaser, an appellant in a terrorism-related conviction appeal, seeking production of a post-sentence psychiatric report pertaining to his co-accused, Chiheb Esseghaier.

Jaser argues the report is necessary to support a fresh evidence application on appeal, contending that if Esseghaier was unfit to stand trial, it could constitute a miscarriage of justice for Jaser.

The Crown opposed the production.

The Court of Appeal, applying the Trotta and McNeil factors, found that Jaser met the prima facie entitlement for production.

Given Esseghaier's privacy interests as a non-party, the court ordered the psychiatric assessment to be produced to the panel for in camera inspection, reserving the decision on full production to the parties.

Following a jury conviction for sexual assault causing bodily harm, the court conducted the required post-verdict fact-finding exercise and accepted the complainant's evidence in its entirety, including repeated forced anal, oral, and vaginal penetration, choking, degrading conduct, and profound long-term psychological harm.

The court held that denunciation and general deterrence were paramount given the manipulative and degrading nature of the offence, while also recognizing the offender's lack of prior record, family support, work history, and rehabilitation prospects.

A defence forensic psychiatric opinion was not accepted as a reliable basis to conclude the offender posed a low future risk or lacked a paraphilic disorder.

Collateral consequences, including loss of career, public notoriety, and exposure to a civil claim, were considered but given limited weight.

A penitentiary sentence of five years and mandatory ancillary orders were imposed.

The appellant, convicted of sexual assault causing bodily harm, applied for release pending appeal under s. 679 of the Criminal Code.

The Crown conceded that the appeal was not frivolous and there was no flight risk.

The court focused on whether detention was necessary in the public interest, considering public safety and public confidence in the administration of justice.

Finding no substantial public safety concerns and arguable grounds of appeal, the court granted the application for release, emphasizing that the public interest in reviewability can outweigh the enforceability interest in such circumstances.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

On a Crown application during a jury trial for sexual offences involving two complainants, the court considered whether cross-count similar fact reasoning could be left with the jury.

Applying the framework in Handy, the court held the allegations disclosed a sufficiently specific and distinctive pattern, including the surrounding context, degrading acts, and post-incident conduct, such that coincidence was objectively improbable.

The court found the probative value of the proposed similar fact reasoning outweighed both moral and reasoning prejudice, which could be managed by instruction.

The application was granted and a cross-count similar fact instruction would be given.

Prior to a jury trial for sexual assault, the defence brought several evidentiary motions.

The defence sought to exclude evidence of the accused's prior sexual communications with a complainant, renew an application for severance of counts, and exclude a PowerPoint presentation prepared by the Crown's expert witness on the neurobiology of trauma.

The court admitted the communications evidence, finding it essential to the narrative and the Crown's similar fact application.

The court dismissed the renewed severance application, concluding the accused's intention to testify did not undermine the viability of the similar fact evidence.

The court permitted the expert to use the PowerPoint presentation with specific modifications to prevent prejudice.

Finally, the court expanded the opening jury instructions to address nonconscious bias and false assumptions regarding consent.

The appellant, C.S., sought bail pending appeal after being convicted of sexual interference, possession of child pornography, making sexually explicit material available to a child, and assault, receiving a six-year sentence.

The appeal challenges both conviction and sentence, primarily arguing that the trial judge failed to adequately consider the appellant's significant intellectual disability when assessing the voluntariness of his police statements, his credibility, and as a mitigating factor in sentencing.

The Crown conceded the public interest and surrender criteria for bail, leaving only the "not frivolous" test.

The Court of Appeal found that the appellant's grounds of appeal, which included the trial judge's discounting of uncontradicted expert evidence regarding the appellant's low IQ and vulnerability to manipulation, were not frivolous.

The court noted that if successful, these arguments could affect the trial outcome or sentence.

Consequently, bail pending appeal was granted.

In a prosecution for sexual assault and sexual interference, the court ruled on several pre-trial applications.

The court permitted a challenge for cause based on pre-trial publicity.

The court excluded proposed evidence from a former bandmate regarding a masturbation video and a statement about degradation, finding the prejudicial effect outweighed the probative value.

The court also excluded similar fact evidence from a prior sexual partner regarding sexual urination.

Finally, the court permitted the Crown to call an expert witness to testify about the basic neurobiology of trauma to dispel myths and stereotypes, but restricted the expert from applying that science specifically to the context of sexual assault.

The appellant, Garrett Gauthier, appealed his convictions for accessing, possessing, making available, and making child pornography.

The appeal raised issues regarding the admissibility and scope of expert evidence on Skype technology, the trial judge's application of the legal test for third-party suspects (allegedly reversing the burden of proof), and misapprehension of evidence concerning Skype syncing and opportunity.

The Court of Appeal found that the trial judge erred in failing to limit the scope of the expert's testimony regarding Skype, misapplied the third-party suspect framework, and misapprehended evidence, leading to a miscarriage of justice.

The appeal was allowed, a new trial was ordered for the accessing, making available, and making child pornography counts, and an acquittal was entered for the possession count due to insufficient admissible evidence of knowledge.

The Crown brought a motion to summarily dismiss the responding parties' application for disclosure under s. 683(1)(a) of the Criminal Code.

The responding parties sought disclosure of alleged out-of-court communications between the trial judge and an FBI handler, which were referenced in a book published by an undercover agent, to support a reasonable apprehension of bias claim.

The Court of Appeal dismissed the Crown's motion, finding it premature to conclude the bias claim could not succeed, and ordered the Crown to make further inquiries regarding the alleged communications.

The appellant Crown appealed after the Court of Appeal overturned terrorism convictions and ordered a new trial on the basis that the jury was improperly constituted due to a jury selection error.

The trial judge had erred by refusing to exercise his common law discretion to exclude prospective jurors while using rotating triers, instead imposing static triers against the respondents' preferred procedure.

The Supreme Court confirmed the jury was improperly constituted but held that the curative proviso in s. 686(1)(b)(iv) of the Criminal Code can apply to cure jury selection errors.

The Court interpreted 'jurisdiction over the class of offence' to refer solely to the statutory jurisdictional capacity of the trial court to try the relevant class of offence, not to whether the jury was properly constituted.

Finding no prejudice to either respondent because the static triers procedure was a Parliament-sanctioned method and was implemented with care and attention, the Court restored the convictions and remitted the remaining grounds of appeal to the Court of Appeal.

The applicant sought a review of a detention order under s. 680 of the Criminal Code pending his re-trial on terrorism charges.

Before the terms of release were finalized, the Supreme Court of Canada allowed the Crown's appeal and restored the applicant's convictions, resulting in him serving a life sentence.

The Court of Appeal dismissed the s. 680 application as moot, noting that any future application for release must be brought under s. 679 for bail pending appeal.

A publication ban under s. 517 was also lifted.

The applicant sought a review of a detention order pending his retrial for terrorist-related offences.

The bail judge had dismissed his application on the secondary and tertiary grounds.

The reviewing judge found the bail judge erred by misapprehending a risk assessment, failing to address the applicant's present ideology, and considering irrelevant factors regarding the proposed sureties.

Fresh evidence regarding trial delay, the COVID-19 pandemic, and the applicant's rehabilitation was admitted.

The application was allowed, and the applicant was released on strict bail conditions including house arrest, electronic monitoring, and four sureties.

The appellant, a high school teacher, was convicted of sexual assault and sexual exploitation of a former student.

He appealed the convictions, arguing the trial judge misapplied the burden of proof, applied uneven scrutiny to the evidence, and erred in assessing credibility.

He also appealed his one-year sentence as harsh and excessive.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's credibility assessments and concluding the sentence was fit given the extent of the manipulation and grooming.

The appellant appealed his conviction for possession for the purposes of trafficking cocaine and failure to comply with conditions of a recognizance.

The appellant was stopped for a non-functional licence plate light, during which the officer detected the odour of burnt marijuana.

Following the discovery of a small amount of marijuana in a grinder, the appellant was arrested.

A subsequent search of the vehicle revealed 172 grams of cocaine hidden under the hood.

The appellant challenged the legality of the arrest and search on Charter grounds, arguing violations of sections 8 and 10 rights.

The trial judge rejected these arguments and convicted the appellant based on circumstantial evidence of knowledge and control.

The Court of Appeal upheld the conviction, finding the officer's actions reasonable and the search lawful as incident to arrest.

The appellant appealed a dangerous offender designation and indeterminate sentence imposed on March 21, 2012.

The appellant, who suffered from brain damage from meningitis, borderline personality disorder, borderline intellectual functioning, and dysthymia, was self-represented during a complex dangerous offender hearing.

The Court of Appeal found that the proceeding was procedurally unfair due to multiple cumulative deficiencies: the failure to inquire whether the appellant wished to retain counsel despite facing severe jeopardy; the failure to conduct a fitness inquiry despite clear indicia that the appellant may not have been mentally present; the failure of amicus curiae to adequately protect the appellant's interests, including by conceding admissibility of psychiatric records and ultimately advocating in favour of the dangerous offender finding; and the failure to explore meaningful alternatives such as video linking to keep the appellant informed when she was absent from court.

The Court allowed the appeal and ordered a new hearing.

The appellants were convicted of terrorism-related offences including conspiracy to commit murder for the benefit of a terrorist group and participating in terrorist activity.

On appeal, the appellants challenged the jury selection procedure used at trial.

The trial judge erroneously held that he lacked common law discretion to exclude unsworn jurors while using rotating triers to determine challenges for cause, and instead ordered the use of static triers with all jurors excluded.

The Court of Appeal held that the trial judge's error deprived the appellants of their statutory right to rotating triers with unsworn jurors excluded, resulting in an improperly constituted jury.

The curative proviso could not be applied to remedy this fundamental procedural error.

The Crown appealed after the Court of Appeal ordered a new trial for an accused convicted of sexual interference.

The Crown had relied on the complainant's pregnancy as corroborating evidence of the assault, while the application judge had dismissed the accused's s. 276 application to cross-examine the complainant on other possible causes of the pregnancy.

The majority held that both the application judge and the trial judge erred, but applied the curative proviso under s. 686(1)(b)(iii) on the basis that the cross-examination that actually occurred allowed the defence to adequately test the Crown's evidence.

The dissent would have dismissed the appeal, holding that the restriction on cross-examination deprived the accused of an entire process of questioning and that the errors were neither minor nor harmless.

The defendant, Ari Da Costa, brought a mistrial application during his jury trial for first-degree murder, arguing that his right to a fair trial was irreparably compromised due to an eleventh-hour change in opinion by a key Crown forensic psychiatrist, Dr. Klassen.

Dr. Klassen, initially a Crown witness who did not support an NCR defence, provisionally changed his diagnosis to schizophrenia after reviewing extensive new records.

The court found that this significant change in expert opinion, coupled with the necessity of a lengthy adjournment to allow Dr. Klassen to finalize his report, would unduly prejudice the defendant by making it impossible for the jury to retain the nuances of the defence expert testimony.

The court granted the mistrial application, emphasizing the paramount importance of a fundamentally fair trial.