Wayne Cunningham

The appellant appealed his conviction for sexual assault, arguing the trial judge provided insufficient reasons, failed to properly consider expert toxicology evidence regarding the complainant's intoxication and capacity to consent, and erred in relying on equivocal post-offence conduct.

The Superior Court of Justice allowed the appeal, finding the trial judge failed to explain her pathway to concluding the complainant was unconscious and incapable of consenting, failed to address gaps in the expert evidence, and improperly jumped to an inference of guilt based on post-offence conduct.

The conviction was set aside and a new trial was ordered.

The appellant appealed his summary conviction for simple assault against his former common-law spouse, which involved a kick to her ankle.

On appeal, he argued the trial judge erred by failing to consider the defence of property, misapprehending video evidence, and applying uneven scrutiny to credibility assessments.

The Summary Conviction Appeal Court dismissed the appeal, finding no air of reality to the defence of property because the appellant denied the act entirely, and concluding the trial judge's factual findings and credibility assessments were reasonable and supported by the evidence.

The applicant, charged with firearms offences, brought a Charter application challenging the search of his residence, the seizure of his cell phone, and the search of text messages on a co-accused's phone.

The court found the search warrant for the residence was overly broad and lacked reasonable grounds, violating s. 8.

The seizure of the applicant's phone was also unauthorized.

Evidence from the residence and the applicant's phone was excluded under s. 24(2).

However, the court held the applicant had no reasonable expectation of privacy in text messages sent to the co-accused's phone, dismissing that part of the application for lack of standing.

The Crown appealed a sentence imposed following a guilty plea to sexual assault arising from the non‑disclosure and transmission of genital herpes (HSV‑2) during unprotected sexual intercourse.

The sentencing judge had imposed a conditional discharge with one year of probation, emphasizing the offender’s lack of criminal record, guilty plea, remorse, and potential immigration consequences.

The Crown argued the sentence was manifestly unfit and that the sentencing judge improperly minimized the importance of denunciation and general deterrence.

The Superior Court held that the sentencing judge made no error in principle and that the disposition was defensible in the context of a novel “test case” with little appellate guidance.

The Crown’s appeal from sentence was dismissed.