Michael A. Johnston

The Crown appealed a Court of Appeal decision setting aside convictions for sexual assault and ordering a new trial.

The Court of Appeal majority had held that the trial judge erred by failing to engage in the second step of the admissibility inquiry and by giving inadequate jury instructions regarding post-offence conduct (the accused's failure to attend for his original trial date).

The Supreme Court held unanimously that failure to attend trial is not presumptively post-offence conduct and its admissibility must be assessed on a case-by-case basis.

A majority allowed the appeal substantially for the reasons of Huscroft J.A. (dissenting in the Court of Appeal), restoring the convictions.

The appellant was convicted of two counts of sexual assault following a jury trial.

On appeal, the court considered whether the trial judge erred in admitting evidence of the appellant's failure to appear at his original trial date as post-offence conduct evidence, and whether the jury was properly instructed on the use of such evidence.

The majority found that the trial judge erred by refusing to allow the appellant to testify on the voir dire regarding his explanation for non-appearance, and by failing to properly instruct the jury on alternative explanations for the post-offence conduct.

The majority held that these errors undermined the fairness of the trial and ordered a new trial.

The dissent argued that the trial judge had sufficient information to make an informed decision on admissibility and that the jury instructions were adequate.

The Crown sought to introduce evidence in a pre-trial motion that the accused failed to report an altercation to the police, arguing it was relevant to rebut their anticipated claim of self-defence.

The accused argued that admitting such evidence would violate their common law and constitutional right to silence, which arises the moment events occur that could give rise to a criminal charge.

The court agreed with the accused, holding that the right to silence precedes any interaction with police and that the accused, being both suspects and victims, were entitled to remain silent.

The Crown's motion to lead the evidence was dismissed.

The appellant appealed his summary conviction for impaired driving, arguing that a 19-minute delay between his detention by a transit officer and the administration of an approved screening device (ASD) test by a dispatched police officer violated the immediacy requirement of s. 254(2)(b) of the Criminal Code and his s. 10(b) Charter right to counsel.

The Superior Court of Justice dismissed the appeal, upholding the trial judge's finding that the delay was reasonably necessary given the unusual circumstance that transit officers do not carry ASDs.

The court also upheld the finding that the appellant had no realistic opportunity to consult counsel at the roadside and would not have done so even if properly advised.

J.M. was found guilty on two counts of sexual assault against two child victims, T.L. and B.R., following a jury trial.

The sentencing judge accepted the complainants' evidence as substantially true, including the more egregious allegations.

Aggravating factors included the offender's position of trust, the young age of the victims, the lengthy period and invasive nature of the abuse, and the severe impact on the victims.

Mitigating factors included the absence of overt violence, no serious criminal record, and a history of employment.

The court emphasized denunciation and deterrence as primary sentencing principles for child sexual abuse by a person in a position of trust.

J.M. was sentenced to 5 years and 6 months imprisonment for the sexual assault against T.L., and 15 months concurrent for the sexual assault against B.R., with credit for pretrial custody.

Various ancillary orders were also imposed.

The appellant appealed his conviction for failing or refusing to provide a breath sample.

He was found asleep in his overturned truck by a passing driver, and later arrested at his home after police smelled alcohol on his breath.

The appellant argued the trial judge erred in finding he had care and control of the vehicle, misapprehended evidence regarding post-driving alcohol consumption, and that the breath demand was unlawful.

The summary conviction appeal court dismissed the appeal, finding the trial judge's conclusions were reasonable, supported by the evidence, and that the arresting officer had reasonable and probable grounds to make the breath demand.

The accused was charged with sexual assault and assault against his former spouse, alleged to have occurred in 2008 while both were stationed at a military base.

The allegations were not reported until 2014, following a contentious family law dispute over child support and daycare expenses.

The court applied the W. (D.) framework to assess credibility and found the accused's evidence to be generally responsive and not materially impeached.

Conversely, the court found the complainant's evidence lacked reliability due to memory issues, internal inconsistencies, and evidence of animus related to the family law proceedings.

The court was left with a reasonable doubt and acquitted the accused on all counts.

The appellant appealed his convictions and sentence for numerous gun-related offences arising from a seizure of firearms and explosives.

He argued the trial judge erred by not staying the charges due to Charter breaches, including a 15-day detention without a bail hearing and the destruction of seized explosives.

The Court of Appeal upheld the trial judge's application of the Babos test, agreeing that exclusion of evidence and sentence remission were adequate remedies.

The sentence appeal was also dismissed, as the sentencing judge properly considered the appellant's status as a former RCMP officer against his deliberate defiance of court orders.

The offender pleaded guilty to second degree murder, attempted murder, and aggravated assault following a horrific, drug-fueled home invasion.

The court accepted a joint submission for a life sentence with parole ineligibility set at 18 years for the murder, along with concurrent sentences of 14 years for attempted murder and 6 years for aggravated assault.

The court weighed the extreme violence and premeditation against the offender's early guilty pleas, deep remorse, and lack of prior criminal record.

The accused pleaded guilty to fraud over $5,000 arising from a scheme that diverted $497,000 from an elderly victim’s bank account and to attempting to obstruct justice during the subsequent jury trial.

The fraud involved directing the transfer of the funds to a third party and misleading investors about the legitimacy of the funds, causing financial and emotional harm to multiple victims.

While the direct victim was reimbursed by the bank, other victims suffered substantial losses and reputational damage.

The court found significant aggravating factors, including the organized and prolonged nature of the fraud and the accused’s attempt to influence witnesses during trial.

Emphasizing denunciation and deterrence, the court imposed custodial sentences of 16 months for fraud and 12 months consecutive for attempting to obstruct justice, with credit for pre‑sentence custody.

The appellant appealed her convictions and sentence, arguing the trial judge misapprehended the evidence and applied unbalanced scrutiny to her testimony compared to the Crown witnesses.

The Court of Appeal dismissed the appeal, finding that while there was at least one factual error in the reasons, it did not amount to a material misapprehension of the evidence.

The sentence appeal on the obstruct police charge was deemed moot.

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding 80 mg, arguing that the trial judge erred in dismissing Charter challenges related to arbitrary detention, failure to promptly inform of the reasons for detention, and admission of breath test evidence.

The appellant contended that the police officer lacked reasonable grounds for the initial traffic stop and that questioning about alcohol consumption occurred without proper notice of a change in the purpose of detention.

The court held that the trial judge’s factual findings were supported by the evidence and entitled to deference, including the finding that the officer had grounds to conduct a Highway Traffic Act stop and that the appellant had been informed of the reason for the stop.

The court also found no legal requirement that the officer explicitly advise that the investigation had shifted to a criminal matter before asking about alcohol consumption.

The trial judge’s analysis under s. 24(2) of the Charter was upheld and the breathalyzer evidence was properly admitted.

Following a jury conviction on six counts including sexual exploitation of a young person, sexual assault, and assault involving members of the offender’s family, the court imposed sentence.

The offender repeatedly sexually abused his step‑daughter over several years and sexually assaulted his spouse, while also exercising coercive and violent control over the household.

The court considered aggravating factors including breach of trust, the victim’s age, repeated conduct, grooming, and significant psychological harm to family members.

Applying sentencing principles of denunciation and deterrence and the range identified in comparable appellate authorities, the court imposed a global custodial sentence.

The Kienapple principle required a conditional stay of one sexual assault conviction as duplicative of the sexual exploitation count.

The appellant appealed a conviction for failing to stop a vehicle as soon as reasonable while being pursued by a peace officer in order to evade police, contrary to s. 249.1 of the Criminal Code.

He argued the initial roadside detention was unconstitutional, that the police were not in “pursuit” within the meaning of the offence, that derivative evidence should have been excluded, and that the trial judge misapprehended the elements of the offence.

The court held the traffic stop had a valid dual purpose, found no breaches of ss. 9, 10(a), or 10(b) of the Charter, and concluded that “pursuit” should be given its ordinary meaning rather than a police policy definition.

The evidence supported the finding that the appellant knew police were pursuing him and drove away to evade them.

The conviction appeal was dismissed.

On a summary conviction sentence appeal by a young person who pleaded guilty to sexual assault, the court considered whether the Youth Criminal Justice Act requires a sentencing judge to ask the young person if he has anything to say before sentence is imposed.

The court held that, unlike s. 726 of the Criminal Code for adult offenders, the YCJA does not impose such a duty, and that the legislative scheme instead leaves the decision to speak to the young person, counsel, and parents.

The court also refused to admit the appellant's proposed statement as fresh evidence, applying the Levesque criteria and finding it was not fresh and would not reasonably have affected the sentence.

The probation sentence was upheld as fit and the appeal was dismissed.

In a criminal jury trial, the court considered whether an accused who was not in custody and posed no security risk should nonetheless be required to sit in the prisoner's dock.

The court held that the location of the accused during trial is a matter within the trial judge's discretion.

It found no added prejudice from use of the prisoner's dock, particularly where the jury was instructed on the presumption of innocence and told that the dock is where an accused sits whether or not in custody.

The accused was ordered to sit in the prisoner's dock.

The appellant sought leave to appeal his conviction for failing or refusing to comply with a demand to give a breath sample without reasonable excuse.

He argued that he was arbitrarily detained, that the trial judge erred in finding he had the requisite mens rea, and that the trial judge misapprehended the evidence.

The Court of Appeal denied leave to appeal, finding that the grounds of appeal were weak and had no significance to the administration of justice.

The court held that mere contact with a police officer does not constitute arbitrary detention, the trial judge correctly applied the standard of proof beyond a reasonable doubt for mens rea, and there was no misapprehension of evidence.

The applicant sought certiorari and mandamus to quash a detention order and obtain the return of her vehicle seized as offence‑related property under the Criminal Code.

The vehicle had allegedly been used by another individual in connection with cocaine trafficking, though the applicant herself was not charged.

The applicant argued the justice of the peace lacked jurisdiction to order detention because the police report failed to disclose the lawful owner and did not explicitly state that detention was required for another proceeding.

The court held that the information contained in the Form 5.2 Report to Justice—indicating the vehicle had been seized as offence‑related property and that charges had been laid—was sufficient for the justice to order detention under s. 490(1).

Minor errors in the form and the absence of explicit reference to a forfeiture proceeding did not amount to jurisdictional error.

The applicant sought certiorari to quash his committal for trial on drug trafficking charges, arguing the preliminary inquiry judge lost jurisdiction by failing to read the entirety of the mode of trial election under s. 536(2) of the Criminal Code.

The application was brought nearly six months after the committal, well past the 30-day limit.

The Superior Court of Justice dismissed the application, finding that despite the judge's omission of certain words from s. 536(2), there was substantial compliance with the provision.

The record demonstrated the applicant fully understood his options, had planned for a preliminary inquiry, and explicitly elected trial by judge alone in the Superior Court.

The applicant sought exclusion of evidence under s. 24(2) of the Charter and to quash a search warrant obtained in a robbery investigation.

Police had obtained information from correctional officials and photographed a jacket stored with the applicant’s prison property prior to obtaining a warrant.

The court held the applicant had no reasonable expectation of privacy in personal effects stored under the control of correctional authorities and that any privacy interest in the property record was minimal.

Even if a breach occurred, it was technical and minor and the Grant factors did not justify exclusion.

The warrant remained valid on the totality of the evidence and the Garofoli application failed.