M. Fox

The appellant appealed his summary conviction for intending to harass his former spouse by sending repeated emails.

At trial, the self-represented appellant testified that he believed the police caution against contacting the complainant did not apply to emails regarding immigration matters.

The summary conviction appeal court found that the trial judge misapprehended the police officer's evidence regarding the caution and failed to properly apply the second and third prongs of the W. (D.) test to the appellant's exculpatory evidence.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The accused brought a motion to sever two counts on an indictment alleging aggravated assault against one infant and second-degree murder of another infant.

The Crown opposed severance and sought admission of similar fact evidence between the counts.

The court applied the governing principles on similar fact evidence, including the requirement that probative value outweigh prejudicial effect, and assessed the degree of similarity between the incidents, the evidentiary nexus, and the likelihood of coincidence.

The court concluded that the similarities between the injuries, circumstances of caregiving, and opportunity created a strong inference that the same perpetrator committed both offences.

The probative value of the evidence outweighed any potential prejudice, which could be addressed through jury instructions.