Michael A. Johnston

The accused brought pre‑trial motions seeking severance of a count alleging sexual assault against a spouse from other counts involving alleged assaults against children, an order under s. 276 of the Criminal Code permitting questioning about the complainant’s prior sexual history with the accused, and production of Children’s Aid Society records.

The court held that severance was not warranted because any risk of reasoning prejudice could be addressed through proper jury instructions and the counts were connected by the family context and overlapping time periods.

The court granted the s. 276 application in part, permitting limited questioning about the general sexual relationship and certain activities relevant to the accused’s defence of consent or honest but mistaken belief in consent, while excluding evidence that would invite prohibited sexual history inferences.

Redacted CAS records were reviewed and ordered disclosed to both parties as they were relevant and privacy concerns had been addressed.

The appellant appealed his convictions for two counts of dangerous driving causing death arising from a motor vehicle collision where his vehicle crossed the centre line and struck an oncoming car.

He argued the trial judge erred in applying the fault component, reversed the burden of proof, and rendered an unreasonable verdict.

The Court of Appeal dismissed the appeal, finding no errors of law and concluding that the evidence reasonably permitted the inference that the appellant was driving too fast to negotiate the curve on his own side of the road.

During a jury trial, the defence requested that the trial judge include a Vetrovec warning in the jury charge concerning the credibility of the complainant and another Crown witness due to their criminal histories and credibility concerns.

The court considered the governing principles regarding when a special caution to the jury about unreliable witnesses is appropriate.

The judge held that the complainant did not fall within a category of witnesses requiring such a warning because his credibility issues were apparent and could be assessed by the jury without special instruction.

However, the court exercised its discretion to provide a Vetrovec warning regarding the second witness, whose extensive criminal record included crimes of dishonesty and whose testimony conflicted with police evidence.

The jury would therefore be cautioned to scrutinize that witness’s evidence and consider whether it was confirmed by other evidence.

The appellant appealed a summary conviction for failing or refusing to provide a breath sample under s. 254(5) of the Criminal Code.

He argued the trial judge erred by failing to address an alleged arbitrary detention contrary to s. 9 of the Charter and by failing to consider relevant evidence regarding the mens rea for the offence.

The appeal court held that the evidentiary record did not establish a prima facie Charter breach that would trigger a duty on the trial judge to inquire into a potential violation.

The officer had lawfully approached the appellant who was sitting in a parked vehicle in a public parking area and therefore no detention arose prior to the breath demand.

The court also found the trial judge’s reasons adequately demonstrated consideration of the evidence and explained the rejection of the appellant’s explanation for failing to provide a sample.