Mila Shah

The appellant was charged with the historical offence of indecent assault arising from an incident in which a five-year-old complainant touched the accused's penis at his invitation after witnessing him masturbate.

The trial judge acquitted the appellant on the basis that while the element of indecency was established, there was no assault because the accused had not directly and intentionally applied force to the complainant.

The Court of Appeal for British Columbia set aside the acquittal and entered a conviction, holding that the trial judge erred by misinterpreting the intentional application of force requirement.

On further appeal, the Supreme Court unanimously dismissed the appeal, holding that when an adult intentionally precipitates sexual contact with a child, the elements of sexual assault are satisfied regardless of whose physical movement initiates the contact.

The Court declined to follow the English authority of Fairclough v. Whipp, finding it not authoritative in Canada.

The appellant pleaded guilty to two counts of sexual assault against his teenage nieces and received a global sentence of eight years, which exceeded the Crown's proposed range of four to six years.

The majority held that the Anthony-Cook public interest test for joint submissions does not extend to contested sentencing hearings following a guilty plea, as contested sentencings do not offer the same degree of certainty and efficiency.

The majority further held that a sentencing judge's failure to provide notice and an opportunity for further submissions before exceeding the Crown's range is an error in principle, not a breach of procedural fairness, warranting appellate intervention only where the error had an impact on the sentence.

The majority dismissed the appeal, finding no demonstrated impact and no error in the sentencing judge's reasons.

Karakatsanis and Côté JJ. dissented, finding the failure to provide notice constituted a breach of procedural fairness, an independent right that does not require proof of actual prejudice, and would have allowed the appeal and remitted the matter to the Court of Appeal for sentencing afresh.

The appellant Crown appealed a Court of Appeal decision ordering a new trial after the majority found the trial judge had misapprehended evidence by failing to address prior inconsistent statements made by the complainant to a friend shortly after the alleged sexual assault.

The Supreme Court restored the conviction, agreeing with the dissenting judge below that the trial judge's failure to specifically address those inconsistencies did not constitute a failure to consider or give effect to them.

The Court held that even if there was error, the inconsistencies were not sufficiently significant to have caused a miscarriage of justice, as the threshold for establishing a miscarriage of justice through misapprehension of evidence requires that the error could have affected the outcome.