S. Casey Hill

Following a trial and dangerous offender proceeding, the offender had previously been declared a dangerous offender and sentenced to a custodial term and long-term supervision order.

The court discovered that sentence had inadvertently not been imposed on one count despite a conviction having been entered.

The parties agreed the court was not functus and could correct the omission.

The court amended the earlier sentencing reasons to impose sentence on the omitted count while maintaining the overall totality of the sentence.

In a judge-alone criminal trial for sexual assault and common assault, the court addressed a potential breach of the rule in Browne v. Dunn after the defence introduced contradictory evidence without cross-examining the complainant on key matters.

The judge reviewed governing authorities regarding the obligation to confront witnesses with allegations that contradict their testimony and the discretionary remedies available where the rule is breached.

The defence acknowledged that certain material inconsistencies had not been put to the complainant during cross-examination.

Considering fairness to the witness and the integrity of the fact‑finding process, the court determined that recalling the complainant for limited additional cross-examination was the appropriate remedy.

The accused applied under s. 276 of the Criminal Code to admit evidence of prior sexual activity with the complainant in a sexual assault prosecution.

The defence sought to introduce two prior incidents of consensual sexual intercourse occurring while the complainant was menstruating, arguing the evidence was relevant to rebut the complainant’s assertion that she would not have consensual intercourse during her menstrual period.

The Crown opposed the application, submitting the evidence lacked sufficient connection to the defence and risked engaging impermissible inferences.

The court held that the proposed evidence was not tendered to support the twin myths but rather to contradict a specific premise advanced by the complainant as the basis for non-consent.

Finding the evidence had significant probative value not substantially outweighed by prejudice under s. 276(3), the court permitted the defence to introduce the evidence.