S. Baker

The two offenders were convicted of sexually assaulting a 19-year-old unconscious victim.

The assault involved digital penetration by one offender while the other encouraged and facilitated the act.

The court rejected the argument that the absence of penile penetration lessened the gravity of the offence.

Emphasizing denunciation and deterrence, the court sentenced both first-time offenders to 16 months in custody followed by two years of probation, along with a 20-year SOIRA order and a weapons prohibition.

The two accused were jointly charged with sexual assault.

The complainant, who had consumed an unknown substance and alcohol, lost consciousness but later experienced a flashback of being sexually assaulted by one accused while the other accused watched and provided encouragement.

The court found the complainant's flashback memory to be reliable, as it was consistent and corroborated by physical bruising.

The court held that the complainant did not consent to the sexual activity.

Both accused were found guilty, with the observing accused convicted as a party to the offence for aiding and abetting by facilitating the assault and encouraging the principal offender.

The applicants, jointly charged with historical sexual offences, brought applications for a stay of proceedings alleging unreasonable delay under s. 11(b) of the Charter.

The total delay was approximately 35 months.

The court deducted periods of defence-caused delay, reasonable judicial reserve time, and exceptional circumstances arising from one applicant's Legal Aid application process.

After deductions, the net delay for both applicants fell well below the 30-month Jordan ceiling.

As the applicants failed to demonstrate a sustained effort to expedite the proceedings, the applications were dismissed.

The applicants sought relief under ss. 8 and 24(2) of the Charter, arguing that a search warrant authorizing the search of their motel room lacked reasonable grounds and that the resulting drug evidence should be excluded.

The reviewing judge found that the information to obtain contained omissions and inaccuracies and that reasonable grounds to search the motel room did not exist, rendering the search unreasonable under s. 8.

However, applying the framework from Grant and Harrison, the court concluded the police acted in overall good faith and that the misleading aspects of the warrant materials were at the lower end of seriousness.

Given the reliability and importance of the seized drug evidence and society’s interest in adjudicating serious trafficking charges on their merits, exclusion under s. 24(2) was not warranted.