Neil J. McCartney

The accused, R.M., was charged with sexual assault and touching a person under 16 for a sexual purpose, involving his adoptive daughter, H.G. The trial focused on the credibility and reliability of the complainant and the accused.

The court found the police interview of the child complainant to be highly suggestive and leading, diminishing the weight of her statement.

The accused's testimony was found credible and consistent with the complainant's limited recollection regarding bedtime routines.

The Crown failed to prove the allegations beyond a reasonable doubt, leading to the accused's acquittal on both counts.

This decision concerns the sentencing of Jonathan Yellowhead for manslaughter, following his conviction after a two-week trial.

The victim's death was attributed to hypothermia, blunt facial trauma, and ethanol intoxication.

The Crown sought 8-12 years of incarceration, while the defence proposed 3-5 years.

The court considered aggravating factors, including the accused's violent criminal history, and significant mitigating Gladue factors related to his Indigenous background and the intergenerational impacts of residential schools.

The court also granted 2:1 credit for pre-sentence custody due to "abhorrent conditions" in jail.

The final sentence imposed was five years and four months incarceration, with 51 months credit for pre-sentence custody, resulting in 13 months remaining to serve, followed by a three-year probation order with specific conditions, a DNA order, and a lifetime firearms prohibition.

The accused applied for a stay of proceedings under s.11(b) of the Canadian Charter of Rights and Freedoms, arguing a violation of his right to be tried within a reasonable time.

The total delay was 24 months, exceeding the 18-month presumptive ceiling for provincial courts.

The primary source of delay was an 11-month period for forensic analysis of seized electronic devices.

The court found that while some defence delay existed, the Crown failed to demonstrate that the remaining delay was justified by "particular complexity" or that a concrete plan was implemented to minimize the delay.

Consequently, the prosecution was stayed.

The applicant, Wally Williams, sought to exclude drug evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

Following a car accident in a remote, cold location, police offered Williams and his companions a ride, conditional on a "safety" pat-down search.

During Williams' search, a pill bottle was discovered, leading to his arrest for drug possession.

A subsequent search of his backpack revealed additional illegal drugs and a "debt book," resulting in charges for possession for the purpose of trafficking.

The court found that the initial "safety" search was not reasonably necessary as there was no imminent threat, and any consent given was limited to a search for weapons, not contraband.

Applying the Grant factors, the court concluded that admitting the evidence, obtained through serious Charter breaches, would bring the administration of justice into disrepute.

The application was allowed, and all seized drug evidence was excluded.

The offender, A.K., was convicted of sexual interference and sexual assault against a child, A.A., who was 7 when the offences began and continued until she was 13.

The court considered aggravating factors including the offender's position of trust and authority, the victim's young age, the duration and nature of the assaults, and the use of force.

Mitigating factors included no prior criminal record and community support.

Applying sentencing principles of denunciation and deterrence, particularly for child sexual abuse, the court imposed an eight-year penitentiary sentence, reduced to seven years and seven months after pre-trial custody credit.

Various ancillary orders were also made, including a lifetime weapons prohibition, DNA order, National Sex Offender Registry registration for 20 years, and a lifetime contact prohibition with the victim and restrictions on contact with persons under 16.

The Crown sought to admit video statements of a child complainant (A.A.) under s. 715.1 of the Criminal Code in a sexual assault trial.

The respondent objected, arguing the statements were not made within a reasonable time after the alleged offences.

The court found that while a three-year delay might be acceptable given the complainant's reasons for non-disclosure, the Crown failed to present the entire video statements in the voir dire.

Without viewing the full statements, the court could not ascertain if they conformed to the rules of evidence and met all s. 715.1 criteria, particularly regarding leading questions.

Consequently, the Crown's application was denied.

The accused, charged with sexual offences and improper storage of firearms, brought a pre-trial application to exclude evidence obtained during a search of his residence.

Following his arrest, police conducted a warrantless search of his home and garage to locate firearms, during which they discovered a piece of clothing in a gun locker.

The police subsequently obtained a search warrant and seized the clothing.

The court found that the warrantless search violated the accused's section 8 Charter rights, as he had not provided informed consent.

Applying the Grant framework, the court concluded that admitting the evidence would bring the administration of justice into disrepute and excluded the evidence under section 24(2) of the Charter.

The accused, J.F., charged with sexual assault, brought an application under sections 276.1 and 276.2 of the Criminal Code to adduce evidence of the complainant's prior sexual history with him, including their ongoing sexual relationship and consensual bondage activities.

The accused argued this evidence was necessary for full answer and defence and to provide context.

The Crown opposed on grounds of relevance.

The court dismissed the application, finding the proposed evidence irrelevant to the issues at trial and that its admission would support the "twin myths" prohibited by section 276(1) of the Criminal Code.

The court also found that the evidence lacked significant probative value and would prejudice the complainant's dignity and privacy.

The accused, J.F., brought an application under s. 278.3 of the Criminal Code for the production of counselling records from Crisis Homes Inc. (Faye Peterson) pertaining to the complainant, S.S., in a sexual assault case.

The accused argued the records were likely relevant to the complainant's credibility, particularly given her statement that counselling encouraged her to report the assault.

The Crown, Faye Peterson, and the complainant opposed the application, asserting high privacy interests and arguing the accused's request was speculative.

The court dismissed the application, finding the accused failed to demonstrate that the records were "likely relevant" or that their production was "necessary in the interests of justice," as the complainant had explained her statement regarding counselling as related to safety concerns rather than influencing her recollection of events.

The accused applied under s. 520 of the Criminal Code for review of a detention order following a bail hearing where detention was ordered primarily on secondary grounds.

The reviewing judge considered whether the justice of the peace committed an error in principle or whether there had been a material change in circumstances since the original bail hearing.

The applicant argued that the justice of the peace failed to respect the presumption of innocence when considering the alleged offence and the accused’s substance abuse issues.

The court held that the reasons, read as a whole, demonstrated that the justice of the peace properly applied the presumption of innocence and reasonably relied on the accused’s prior breaches of recognizance, criminal record, and deficiencies in the proposed surety plan.

Finding no error in principle and no material change in circumstances, the court declined to interfere with the detention order.