P. Lam

The offenders were convicted by a jury of sexual assault and being a party to sexual assault.

The complainant was highly intoxicated and lacked the capacity to consent when the primary offender engaged in prolonged sexual activity with her in the back seat of a car.

The co-offender aided and abetted by driving the car, asking the complainant if she consented while recording her, and taking photos and videos of the assault.

The court sentenced the primary offender to 32 months' imprisonment and the co-offender to two years' imprisonment plus one year of probation, emphasizing denunciation and deterrence for a crime of opportunity against a vulnerable victim.

The applicants sought an order in the nature of certiorari to quash their committal to stand trial on a charge of production of Ephedrine.

They argued the preliminary hearing judge exceeded his jurisdiction by finding the added count arose from the same transaction as the original charges and by finding sufficient evidence for committal.

The Superior Court of Justice dismissed the application, holding that the preliminary hearing judge correctly applied the 'same transaction' rule under s. 548(1)(a) of the Criminal Code and properly assessed the circumstantial evidence in determining there was sufficient evidence to commit the applicants to trial.