Robert Thomson

This decision concerns the prosecution of Victor Perez for multiple sexual offences against a 12-year-old complainant, H.D. The court addresses the admissibility and credibility of evidence, the application of the defence of mistake of age, and the sufficiency of steps taken by the accused to ascertain the complainant’s age.

The court finds Perez guilty on six counts, including invitation to sexual touching, sexual assault, sexual interference, luring, and making child pornography, but not guilty on a count of breaching a prohibition order.

The judgment provides detailed analysis of the law on circumstantial evidence, credibility, child witness evidence, and the legal standards for mistake of age and sexual offences involving minors.

The court considers a second discreditable conduct application by the Crown in a sexual offences prosecution.

The Crown sought to admit evidence of the accused’s prior conviction for sexual interference and the circumstances of the prior complainant’s presentation, to undermine the accused’s claim of honest but mistaken belief in age and to show recklessness.

The court finds both groupings of evidence inadmissible, concluding that their probative value is limited and outweighed by the risk of distraction and prejudice, especially given the factual dissimilarities between the prior and current complainants.

The application is dismissed.

The Crown brought an application to introduce prior discreditable conduct evidence against the accused, Victor Perez, who is charged with multiple sexual offences against a 12-year-old complainant (H.D.).

The Crown sought to admit the evidence for several purposes, including demonstrating the accused's awareness of legal requirements for ascertaining age, his awareness of legal jeopardy, to rebut innocent intent or mistake, and to explain his access to a park and communication breaks.

The court dismissed the application for all proposed purposes, finding that the evidence was either immaterial, lacked sufficient probative value, or that its prejudicial effect significantly outweighed any probative value.

The court emphasized that the accused's knowledge of the law on "reasonable steps" was not a material issue, and that similarities between prior and current conduct were not "striking" enough to establish identity or specific propensity, especially given the more serious nature of the prior conviction.

The Crown brought an application under section 715.1 of the Criminal Code to admit two video-recorded statements of a 13-year-old complainant (F.T-G.) in a sexual assault case.

The respondent opposed, arguing the statements were not taken within a reasonable time, did not adequately describe the alleged acts, and their admission would interfere with the proper administration of justice due to issues like leading questions, external influence, and the complainant's expressed animus.

The court found that the statements met the statutory preconditions, were taken within a reasonable time given the nature of child abuse disclosures, and sufficiently described the acts complained of.

The court dismissed the respondent's arguments regarding the administration of justice, emphasizing that concerns about memory frailties, leading questions, or external discussions generally go to the ultimate reliability of the evidence, not its admissibility.

The court ruled that the statements would be admitted at trial, provided the complainant adopts them, with the caveat that any presumptively inadmissible similar fact evidence must be vetted.

The Applicant, Althea Reyes, sought certiorari in aid of prohibition to challenge a trial judge's decisions regarding disclosure and the introduction of her prior criminal record.

The Crown moved for summary dismissal of Reyes' application.

The court found that the alleged errors by the trial judge were not jurisdictional in nature, but rather discretionary matters within the trial judge's purview (e.g., length of adjournment for disclosure review, recall of witnesses, abuse of process, or mistrial applications).

The court emphasized that extraordinary remedies like certiorari are reserved for jurisdictional errors, not mere alleged errors reviewable on appeal.

Consequently, the court summarily dismissed Reyes' application, finding it manifestly frivolous as it was "obviously doomed to fail."

The applicant sought a review of a detention order under s. 520(1) of the Criminal Code.

He faced numerous charges including human trafficking, procuring, and breaching court orders.

The court found no errors of law in the justice of the peace's initial detention order.

Although a material change in circumstances warranted a de novo review, the court concluded the applicant failed to meet his reverse onus.

Detention was deemed necessary on the secondary ground due to a substantial likelihood of reoffending, given his history of breaching orders and lack of credibility, and on the tertiary ground due to the gravity of the offences and strength of the Crown's case.

The accused brought a section 525 review of his detention.

He was facing charges including human trafficking, bank robbery, and possession of a stolen vehicle, and was arrested for breaching strict release conditions, including house arrest and GPS monitoring.

The court found that the continued detention of the accused was justified under the secondary ground, as he posed a substantial likelihood of re-offending even under the proposed strict conditions of release.

This is a costs endorsement following a six-day family law trial.

The court considered the parties' written submissions, the divided success on various issues (net family property, chattel valuation, spousal support income, retroactive spousal support, spousal support amount/duration), and the reasonableness of settlement offers.

The applicant sought partial indemnity costs of $69,739.08.

The respondent argued for no costs due to divided success and alleged lack of proper billing advice from her former counsel.

The court deducted costs related to previous motions where costs were already awarded or denied, and further discounted the applicant's claim by 25% for time spent on an issue where the respondent was successful (health and ability to work).

The court found the respondent's settlement position "extreme" and unreasonable, making settlement impossible.

The parties separated after a 9-year relationship and 7-year marriage.

The respondent sought an unequal division of net family property, alleging the applicant depleted assets through undisclosed RRSP withdrawals.

The court dismissed this claim, finding the funds were used for family expenses and the high threshold for unconscionability was not met.

The court also resolved disputes over the valuation of chattels.

On spousal support, the court accepted the respondent's evidence of severe disability (fibromyalgia and other conditions) and awarded non-compensatory support of $1,680 per month for 7 years, based on the applicant's income of $135,000 and the respondent's income of $23,000.

A divorce was granted, and the applicant's request for a no-contact order was dismissed.

The applicant, charged with human trafficking and prostitution-related offences, brought a pre-trial application challenging the constitutionality of sections 286.3 and 286.4 of the Criminal Code.

The applicant relied on a recent Superior Court decision that declared the provisions unconstitutional.

The court declined to follow the prior decision, finding it plainly wrong in its conclusion that Parliament allowed the sale of sexual services.

Instead, the court followed other concurrent decisions upholding the provisions, ruling that the trial would proceed and the constitutional challenge would be fully litigated after the evidence is called.

The offender was designated a dangerous offender following convictions for sexual interference and sexual assault against a 10-year-old girl.

The Crown sought an indeterminate sentence, while the offender proposed a determinate sentence followed by a 10-year long-term supervision order (LTSO).

The court reviewed the offender's extensive history of refusing or unilaterally discontinuing treatment and medication for his pedophilic behaviour.

Finding that the offender lacked genuine insight and could not be trusted to manage his risk in the community, the court concluded there was no reasonable expectation that a lesser measure would adequately protect the public.

An indeterminate sentence was imposed.

The appellant, a driving instructor, appealed his conviction for sexual assault following a guilty plea, arguing the plea was not voluntary or unequivocal because he did not understand the charges due to language difficulties.

The court heard fresh evidence from the appellant, his friend who acted as an interpreter, and his former trial counsel.

The court rejected the appellant's evidence, finding that he understood the allegations and the consequences of his plea, and that his plea was both voluntary and unequivocal.

The appeal was dismissed.

The accused, charged with sexual assault and sexual interference, brought an application challenging the constitutionality of s. 278.92 of the Criminal Code.

He argued that the provision, which creates a presumptive inadmissibility for personal information records in the possession of the accused, violates his rights under ss. 7, 11, and 15 of the Charter.

The court dismissed the application, finding that the statutory scheme is rationally connected to its purposes of protecting complainants' privacy and encouraging the reporting of sexual offences.

The court concluded that the scheme does not violate the accused's right to a fair trial or equality rights.

Following convictions for sexual interference and sexual assault against a child, the Crown sought a dangerous offender designation.

The court applied the statutory framework in s. 753(1), with particular focus on s. 753(1)(a)(ii), and found a virtually unabated pattern of sexually abusing children over decades, interrupted mainly by custody, psychiatric detention, or strict supervision.

The court held that the predicate offences formed part of persistent aggressive behaviour demonstrating a substantial degree of indifference to the reasonably foreseeable consequences to others.

A dangerous offender designation was therefore imposed, with sentencing to be scheduled separately.

The Crown appealed the accused's acquittal on a charge of sexual assault.

The trial judge had found that the complainant communicated consent through her actions and that the absence of a condom did not negate consent.

The Superior Court of Justice allowed the appeal, finding the trial judge made several errors of law.

Specifically, the trial judge improperly conflated the actus reus and mens rea of sexual assault, failed to consider whether the complainant subjectively consented to intercourse without a condom, and failed to assess whether the accused took reasonable steps to ascertain consent.

The acquittal was set aside and a new trial ordered.

The Estate Trustees applied to pass the accounts of the estate.

Two of the deceased's sons filed notices of objection, arguing that the Estate Trustees administered the estate incompetently, improperly claimed a management fee, and improperly paid certain expenses related to the family home.

One objector also claimed ownership of two rifles in the deceased's possession.

The court found little to no fault with the estate administration and approved the accounts, with the exception of disallowing the management fee because the estate consisted primarily of real estate requiring little management.

The court also ordered the return of the two rifles to the objector.

The defendant was charged with sexual assault following an incident on February 4, 2018, where the complainant alleged that after initially consenting to sexual intercourse, she asked the defendant to stop, but he continued to engage in sexual activity for a few more thrusts.

The defendant denied continuing after the complainant asked him to stop.

The central issue was whether the Crown proved beyond a reasonable doubt that the defendant continued to engage in sexual intercourse after the complainant said she wanted to stop.

The court found significant credibility and reliability concerns with the complainant's evidence, including inconsistencies with her police statement, limited memory of key events, and the selective provision of text messages to police.

The court applied the W.(D.) framework and concluded that the Crown had not proven the charge beyond a reasonable doubt.

The charge was dismissed.

The defendant was charged with sexual assault, alleging that while engaged in consensual sexual intercourse on February 4, 2018, the complainant told him to stop, but he continued to penetrate her briefly before stopping.

The defendant acknowledged the complainant told him to stop but testified he immediately complied.

The court held a hearing under section 278.94 of the Criminal Code to determine the admissibility of evidence of other sexual activity and private records relating to the complainant.

The central issue at trial would be whether the defendant stopped when the complainant communicated her withdrawal of consent.

The court admitted certain text messages and Snapchat messages between the parties and the complainant and her friend that directly related to the sexual activity in issue, as they were relevant to the complainant's credibility regarding her account of the events.

However, the court excluded evidence of other sexual activity between the parties occurring on other dates, as such evidence had minimal probative value and would substantially prejudice the complainant's privacy and dignity rights.

The court also excluded a sentence from the complainant's post-incident message to the defendant that the Crown sought to introduce.

The defendant was charged with sexual assault on February 4, 2018.

This decision addresses applications under s. 278.93 of the Criminal Code to determine whether certain evidence is capable of being admissible.

The defendant sought to introduce: (a) Snapchat messages between the complainant and a friend dated February 4-8, 2018; (b) text messages between the defendant and complainant dated February 3-4, 2018 of a sexual nature; (c) text messages of other sexual activity from various dates between January and August 2018; and (d) evidence of other sexual activity as outlined in the notice of application.

The Crown also sought to introduce a sentence from a message sent by the complainant to a friend.

The court determined that all evidence should proceed to a s. 278.94 hearing to determine final admissibility, with the exception of certain portions that the defendant agreed to redact.

Trial management order addressing pre-trial motions in a sexual assault prosecution.

The defendant sought to admit Snapchat messages, text messages, and evidence of other sexual activity of the complainant.

The Crown sought to admit evidence of other sexual activity.

The court established a comprehensive procedural framework and timetable for determining admissibility issues in stages, including determinations of standing, document characterization, and application of statutory tests for admission of sensitive evidence.