Tammy D’Eri

The appellant, a former elementary school teacher, appealed convictions for 16 counts of sexual offences and his sentence.

The appeal raised issues including the trial judge's curtailment of cross-examination regarding 'avoidance' and 'delayed disclosure' (collusion defence), the admission and alleged misapprehension of evidence about a principal's warning, and the application of the totality principle in sentencing.

The court found that the trial judge erred in impermissibly curtailing cross-examination on two counts (3 and 11), setting aside those convictions and ordering a new trial for them.

All other grounds of appeal against conviction were dismissed.

The sentence appeal was also dismissed, but the total incarceration period was reduced from 720 days to 630 days due to the two set-aside convictions.

The court also considered fresh evidence regarding collateral consequences of the convictions but did not reduce the sentence further based on them.

Nathan Forsellino was convicted by a jury of sexual assault.

The Crown sought a penitentiary sentence of three and a half years, while the defence sought a conditional sentence of two years less a day or, alternatively, nine months.

The court, exercising its fact-finding role under s. 724(2) of the Criminal Code due to jury ambiguity, found beyond a reasonable doubt that the defendant forced sexual intercourse upon the victim, A.G., despite her objections and physical resistance, including placing a hand on her throat.

The court considered aggravating factors, such as the forced sexual intercourse and severe victim impact, and mitigating factors, including the defendant's lack of criminal record, strong community support, and low risk of re-offending.

The court determined that a conditional sentence was inappropriate due to the need for denunciation and deterrence in sexual assault cases.

The constitutional challenge to s. 742.1(f)(iii) was not addressed.

The applicant, charged with sexual assault and other offences, sought a stay of proceedings under s. 24(1) of the Charter due to the police's failure to retain a 2007 videotaped statement made by the complainant.

The court found that the Crown failed to establish that the loss of the video was not due to unacceptable negligence.

Given that the complainant's credibility was the central issue and she had a history of recantations and perjury, the loss of the video irreparably prejudiced the applicant's ability to make full answer and defence.

The court concluded this was one of the clearest of cases and ordered a stay of proceedings on the sexual assault count.

The accused brought a Charter application seeking exclusion of evidence discovered on his laptop during a police investigation initially framed as theft of telecommunications.

Police had detained the accused while he was using a laptop in a parked vehicle and seized the computer without lawful authority, later obtaining search warrants.

The court found multiple breaches of ss. 8, 9, 10(a), and 10(b) of the Charter, including unlawful seizure of the laptop, delayed access to counsel, failure to re‑advise rights when the investigative focus shifted to child pornography, and execution of a search warrant months outside the authorized time period.

The court also found the warrant application contained irrelevant criminal history and that the investigation into telecommunications theft was used as a pretext to search for sexual offences.

Applying the s.24(2) analysis, the court held that the state conduct was serious and the privacy intrusion significant, warranting exclusion of the computer evidence.