T. Breen

The appellant appealed a conviction for sexual interference involving a child complainant.

The appeal alleged errors including improper admission of spousal communications obtained through cross‑examination of the accused’s spouse without advising her of spousal privilege, improper admission of similar fact evidence involving unrelated sexual conduct with an adult several years earlier, and ineffective assistance of counsel related to disclosure of a letter written by the accused.

The court held that spousal privilege under s. 4(3) of the Canada Evidence Act required the spouse to be informed of the privilege before waiving it, and the failure to do so resulted in improperly admitted evidence that materially affected the credibility findings against the accused.

The court further found that the similar fact evidence lacked probative value and created significant prejudice.

Because these errors could have affected the verdict, the conviction was set aside and a new trial ordered.

The appellant appealed a sentence imposed after a guilty plea to possession of child pornography, arguing that the sentencing judge erred by refusing to grant a conditional discharge and by imposing a Sex Offender Information Registration Act order.

The appellant relied on mitigating factors including his status as a first offender, psychiatric evidence indicating a low risk of reoffending, and his cooperation with authorities which led to the prosecution of another offender.

The appeal court held that the sentencing judge committed no error in principle and properly considered all relevant factors.

The court also found that the appellant failed to demonstrate that the SOIRA registration requirement had a grossly disproportionate impact relative to its protective purpose.

The sentence and registration order were upheld.