Michael S. Puskas

This ruling addresses a Crown's Seaboyer application in a sexual assault case involving a young person.

The Crown sought to admit evidence of the complainant's prior consensual sexual activity with the accused to provide context for the relationship dynamics and discussions about consent, and to explain the complainant's reasons for continuing the relationship after the alleged assault.

The court, after a voir dire, found the evidence admissible, determining it had legitimate probative value for these purposes and did not improperly invoke the "twin myths" or cause undue prejudice.

The appellant appealed a conviction under the Provincial Offences Act.

On the scheduled appeal hearing date, the appellant's counsel requested an adjournment without prior notice to the Crown prosecutor, who had interrupted her vacation to attend.

The trial judge, of his own initiative, asked the Crown if it wished to apply for costs and ordered the appellant's counsel to pay $500 in costs personally, characterizing the conduct as showing reckless disregard.

The Court of Appeal allowed the appeal and vacated the costs award, finding that while the conduct was inconsiderate and worthy of adverse comment, it did not meet the high threshold for a personal costs order against counsel.

The accused, charged with sexual assault, brought a pre-trial motion under s. 276.2 of the Criminal Code to introduce evidence of prior consensual sexual activity with the complainant, M.M., at a strip club.

The accused argued this evidence was necessary to explain the presence of his DNA on a vaginal swab taken from M.M. hours after the alleged assault and to challenge M.M.'s credibility regarding her earnings that night.

The court applied the two-step Darrach procedure, finding the accused's affidavit sufficiently detailed and his evidence credible enough to raise a reasonable doubt.

The court determined the evidence was admissible as it was a specific instance of sexual activity, relevant to an issue at trial (explaining DNA), and had significant probative value not outweighed by prejudice, upholding the accused's right to make full answer and defence.

The accused was charged with impaired care or control of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code and with refusing to provide a breath sample contrary to s. 254(5).

The Crown's case was that the accused was found sleeping in his vehicle against a guardrail on Highway 403.

The defence argued that the accused had been involuntarily placed in the passenger seat by a friend who was driving, and that the friend caused the collision and fled the scene.

The court acquitted on the refusal charge, finding the accused was unable to provide a proper breath sample due to his level of intoxication.

The court convicted on the care or control charge, finding that the accused's position in the vehicle and access to keys established a realistic risk he would drive while impaired.

The accused pleaded guilty to five omnibus fraud counts arising from a sophisticated debit card skimming scheme perpetrated against multiple financial institutions in Hamilton and Niagara.

The scheme involved installing card reader overlays and pinhole cameras on ATMs to capture debit card data and PINs, which were then used to create counterfeit cards for fraudulent purchases and cash withdrawals.

Total losses exceeded $86,000.

The court rejected conditional sentences despite mitigating factors including guilty pleas and first-offender status for one accused, imposing custodial sentences due to the sophisticated nature of the scheme, its extent, premeditation, and the need for denunciation and deterrence.