Other Key Cases and Takeaways

A conditional sentence cannot become available where appropriate sentence, prior to considering pre-trial custody, is two years or more.

Probation orders should only be imposed for “the purpose of protecting society and for facilitating the offender’s successful reintegration into the community” - i.e. for rehabilitative or protective purposes - not for punitive purposes. Court set side probation order that was seemingly only imposed for punitive purposes.

It is not an error for a trial judge to respond to a question from a juror by repeating their original instruction. This is especially true when defence counsel does not object or indeed actively supports this approach at trial.

When a trial judge receives a request from the jury for a reading of certain parts of the evidence, the trial judge must provide an answer that is both responsive to the question and complete and accurate. A full and accurate answer to the question will sometimes require that the trial judge go beyond the “four corners” of the jury’s request so that the jury will have other parts of the evidence which materially weaken, explain or qualify the evidence specifically requested by the jury.
The manner in which the trial judge chooses to provide this “complete and accurate response” is a matter of judicial discretion. Sometimes a re-reading of other parts of the evidence will be necessary, other times summaries of that evidence may be appropriate, and in other situations, reference by the trial judge to existence of other evidence and the availability of a read back of that evidence may suffice.

A Conditional Sentence Order continues to be in effect when an accused is alleged to have breached the CSO and fails to seek bail on that new charge.

Where an appeal has been argued on its merits and a decision has been rendered, but a formal order has not been issued, the court remains seized of the matter and retains a limited power to reconsider and vary its decision until the formal order is issued if it is in the interests of justice to do so.
When an appeal has been dismissed and a formal order reflecting that disposition has been issued, the jurisdiction to re-open an appeal is “narrow and exceptional”. Jurisdiction to reopen an appeal after a final order has been issued only exists in cases where the “appeal was not heard on its merits” (for example, if an appeal was dismissed due to the non-attendance of counsel at the appeal).
Where a party believes that a panel’s reasons show it misunderstood an argument on appeal or failed to address an argument on appeal, they may, before a formal order is issued ask for the appeal to be reopened in the interests of justice. If not, they may seek leave to appeal to the Supreme Court of Canada.

Prior consistent statements by witnesses are presumptively inadmissible because they are hearsay and are a form of oath-helping which will, if a jury is not properly instructed, encourage the jurors to treat the repetition as a “badge of trustworthiness” and credibility.
It is impermissible for triers of fact to reason that a prior consistent statement corroborates in-court testimony or that consistency enhances credibility. There are exceptions to the prohibition against admitting prior consistent statements, including: (1) to rebut an allegation of recent fabrication, (2) to establish prior eyewitness identification, (3) to prove recent complaint, (4) to provide evidence of the emotional state of the complainant or witness and (5) to adduce facts as part of the narrative.
Even where a prior consistent statement is admissible under one of these exceptions, however, it must “almost always” be accompanied by a limiting instruction to prevent the evidence from being used for impermissible purposes.

Attacking the insufficiency of reasons is a notoriously difficult ground of appeal. A successful appeal where the trial judge’s reasons in a sexual assault case were found to be insufficient due to the trial judge’s failure to acknowledge and resolve material inconsistencies in a critical witness’ evidence - particularly where the central issue at trial is credibility.
In this case, rather than acknowledging or assessing any of the inconsistencies the trial judge only summarized the complainant’s in-chief evidence and simply stated that the complainant had not been “significantly contradicted under cross-examination” and that any inconsistencies were “minor”. Without any further explanation, the trial judge convicted the appellant on all counts.

The rule against ungrounded common-sense assumptions requires judges to avoid speculative reasoning by invoking “common-sense” assumptions about human behaviour that are not grounded in the evidence or appropriately supported by judicial notice. The overlapping rule against stereotypical inferences prohibits credibility reasoning based on stereotypical inferences or prejudicial generalizations about human behaviour.
Drawing common sense inferences not ground in the evidence or drawing stereotypical inferences will not amount to a reversible error unless the impugned inference plays a material role in reaching a material conclusion.
In this case, the Court of Appeal ordered a new sexual assault trial because the trial judge convicted the Appellant on the basis of stereotypical reasoning that the complainant would have only consented to the sexual activity in question if she was a “fetish freak” or “some person who got her kicks out of having sex in public [or on her period]” which he found implausible and “defied logic”.

Generally, there should not be multiple motions regarding the same evidence. However, this is not an absolute prohibition. The decision to allow or reject subsequent motions on the same evidence is a matter of judicial discretion. Trials are fluid and a ruling made at one point may need to be revisited at another point if circumstances change.

Sara LittleJanuary 3, 2024Comment