T. Wiley

In a criminal trial involving charges of procuring and exercising control for sexual services, the Crown sought to ask a witness in examination-in-chief about prior inconsistent statements and the reasons for them, anticipating the witness would cite fear of the accused.

The defence objected, arguing this constituted self-serving oath-helping.

The court, preferring the approach in R. v. Durrant over R. v. Pinkus, ruled that the Crown could introduce the fact of prior inconsistent statements during examination-in-chief to avoid appearing to shield the witness.

However, the explanation for these statements, particularly the witness's fear, was to be reserved for re-examination, contingent on the defence cross-examining the witness on the statements.

The accused was charged with sexual assault under s. 271 of the Criminal Code arising from an encounter in a motel room after a night of drinking with a teenage complainant.

The complainant testified that she consumed very strong drinks, passed out, and had no memory of any sexual activity, later discovering semen matching the accused’s DNA.

The accused claimed the intercourse was consensual and relied on alleged prior sexual relations and implied consent based on the complainant accompanying him to the motel.

The court rejected the accused’s evidence due to numerous inconsistencies, admissions during cross‑examination, and his acknowledged lies to police.

The judge accepted the complainant’s evidence and found she was extremely intoxicated and incapable of consenting, concluding the accused knowingly engaged in sexual activity with her while she was passed out.

The offender was convicted by a jury of sexual assault and assault arising from an incident involving forced intercourse and physical violence in the complainant’s home, and later pleaded guilty to failing to comply with an undertaking prohibiting contact with the complainant.

The court considered the seriousness of non-consensual intercourse, the physical injuries inflicted, the impact on the complainant, and the intimate relationship between the parties as aggravating factors.

Mitigating factors included the offender’s lack of criminal record, some expressions of remorse, and otherwise stable personal circumstances.

Emphasizing denunciation and deterrence in intimate partner sexual violence, the court imposed a custodial sentence within the range reflected in comparable authorities.

Concurrent and consecutive sentences were structured to reflect that the breach offence occurred weeks later.

Following a jury conviction for sexual assault and assault, the defence argued the verdict was ambiguous because the jury may have relied on different factual bases ranging from touching to intercourse.

The court held that the Crown’s closing submissions created the possibility that jurors reached a unanimous verdict based on different evidentiary foundations.

In such circumstances, sentencing requires the trial judge to independently determine the relevant facts using the criminal standard of proof.

After reviewing the trial evidence, the court found beyond a reasonable doubt that the accused committed both digital penetration and sexual intercourse without consent as part of a continuous sexual assault.

These findings were adopted as the factual basis for sentencing.

The accused was charged with three counts of sexual assault arising from allegations that she engaged in sexual activity with a foster child while he was under her care.

The complainant alleged that the sexual activity occurred while he was fifteen and living in the accused’s home as a foster child, which would negate consent due to the accused’s position of trust under the Criminal Code.

The defence denied that any sexual activity occurred during the foster relationship and argued that the complainant fabricated the allegations to avoid substantial child and spousal support arrears.

The court found significant credibility concerns with the complainant, including false statements in sworn family court materials and evidence suggesting a motive to fabricate.

Applying the W.(D.) framework, the court concluded that the evidence left a reasonable doubt as to whether the alleged acts occurred.