Terry S. Guerriero

The applicant alleged discrimination in employment and services based on place of origin, ethnic origin, and sex after she was allegedly assaulted and threatened by a customer at her workplace.

She claimed the police and her employer failed to take her allegations seriously.

The respondent employer requested the application be deferred pending the outcome of a related WSIB appeal regarding whether a traumatic event actually occurred.

The Tribunal found substantial overlap between the issues before the WSIB and the Tribunal, and ordered the application deferred pending the completion of the WSIB appeal process.

The appellant appealed his sentence of 15 months for an armed robbery committed at knife point.

The trial judge had imposed a sentence higher than the Crown's submission and granted only 1-for-1 credit for pre-sentence custody without seeking submissions from counsel.

The Court of Appeal upheld the 15-month sentence but found the trial judge erred in denying 2-for-1 credit without submissions and by improperly considering the appellant's immigration status.

The appeal was allowed to the extent of increasing the pre-sentence custody credit to a 2-for-1 basis.

The Crown appealed an acquittal entered after the trial judge granted a motion for a directed verdict.

The Court of Appeal held that the identity of names between the person the complainant identified as her assailant and the accused constituted some evidence on the issue of identity.

The appeal was allowed, the directed verdict set aside, and a new trial ordered.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred regarding the complainant's capacity to consent and competency to testify.

The Court of Appeal dismissed the appeal, holding that capacity to consent and competency to testify are distinct issues.

The court found that even if the trial judge erred on capacity, she accepted the complainant's version of events, which indicated no consent.

Furthermore, the appellant's own testimony showed he failed to take reasonable steps to ascertain consent.

The Crown appealed jury acquittals on charges of sexual assault and break and enter with intent to commit sexual assault.

The Court of Appeal held the trial judge erred in leaving honest but mistaken belief in consent with the jury, because the evidentiary record disclosed no air of reality to the defence.

In the circumstances known to the accused, including prior rebuffed advances, the complainant's intoxication, sleep, passivity, and explicit verbal rejection, the accused was required by s. 273.2(b) of the Criminal Code to take reasonable steps to ascertain consent.

Having taken none, the defence was statutorily unavailable and a new trial was ordered.