Other Key Cases and Takeaways

(1) R. v. S.W., 2024 onca 173

The respondent, S.W., was convicted of sexual assault. The Crown sought a sentence of 3 years. The defence sought a conditional sentence of 18 months. Ultimately, the trial judge imposed a conditional sentence of two years less a day followed by one year of probation. The Crown appeals the respondent’s sentence arguing it was demonstrably unfit. The Court of Appeal agreed and imposed a 3-year sentence.
Of particular note, the Court concluded that departing from the 3-5 year sentencing range for sexual assault does not require an exceptional circumstance but where a trial judge fails to explain why a particular sentence is below the range this may be an indication of legal error (see also R. v. Parranto, 2021 SCC 46).

For more information on sexual assault and sentencing ranges, check out Emond’s “Prosecuting and Defending Sexual Offence Cases, 2nd Edition”, chapter 16, “Sentencing” and Emond’s “Sentencing: Principles and Practice, 2nd Edition”, chapters 4, 5 and 14.

(2) R. v. Faroughi, 2024 onca 178

The Court of Appeal declares the 6-month mandatory minimum for s. 286.1(2)(a) (obtaining sexual services for consideration from a person under 18 years) unconstitutional.

(3) r. v. clyde, 2024 ONCA 113

The appellant was convicted of sexual assault and sexual interference in relation to the daughter of his long-term partner. The complainant suffered from rashes in her groin area. The appellant and the complainant’s mother both applied cream to the rashes before before. The complainant testified that the cream was not applied to her vagina, only her thighs and buttocks, but that on two separate occasions, distinct from the application of the cream, the appellant rubbed her vagina sexually. Both the appellant and the complainant’s mother testified that they applied cream to the complainant’s vagina to treat the rash. The defence theory at trial was that the complainant misremembered the appellant’s involvement in her hygiene care.
The appellant submits that the Crown’s closing was problematic and invited the jury to engage in impermissible lines of reasoning: (1) the Crown relied on the appellant’s good relationship with the complainant and the absence of evidence regarding the complainant’s motive to fabricate to bolster the reliability of her testimony, and (2) the Crown relied on the absence of evidence of motive to fabricate to enhance the complainant’s credibility.
There is no logical connection to be made between the absence of evidence of a motive for a witness to fabricate and the reliability of that witness. The Crown’s closing invited the jury to do just that (at one point the Crown went so far as to tell the jury that “only logical conclusion” that could be drawn from the appellant’s good relationship with the complainant was that “she could not possibly have misremembered or misperceived what had happened”. A corrective instruction was required to explain to the jury that this line of reasoning was impermissible.
The Court concluded that the Crown’s closing compromised the appellant’s right to a fair trial and allowed the appeal.

For more information on sexual assault and improper crown’s closing, check out Emond’s “Prosecuting and Defending Sexual Offence Cases, 2nd Edition”, chapter 17, “Evidentiary Issues” and Emond’s “Modern Criminal Evidence”, chapters 4, 5, 7 and 9.

(4) r. v. l.b., 2024 onca 88

Following a judge-alone trial, the respondent was acquitted of sexual assault and sexual interference. The Crown appeals the acquittals on the basis that the trial judge erred in his treatment of similar fact evidence and in his analysis of the complainant’s alleged motive to fabricate.
The Crown may only appeal an acquittal in proceedings by Indictment on questions of law alone (s. 676(1)(a)). An accused, on the other hand, has the right to appeal a conviction on grounds that it is unreasonable or not supported by the evidence (s. 686(1)(a))). The Court dismissed the Crown’s appeal on the basis that the grounds raised do not amount to questions of law alone.
While a trial judge is required to consider all the evidence in relation to the ultimate issue of guilt or innocence, unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding there was an error of law in this respect.
While a finding on the ultimate issue of guilt or innocence based on stereotypical assumptions that are not properly grounded in the record is an error of law, the court was not persuaded this occurred in the present case.
The Crown cannot appeal an acquittal on the basis that the trial judge made an unreasonable credibility assessment.

For more information on sexual assault, similar fact evidence and credibility assessment, check out Emond’s “Prosecuting and Defending Sexual Offence Cases, 2nd Edition”, chapter 17, “Evidentiary Issues” and Emond’s “Modern Criminal Evidence”, chapter 7, “Character Evidence”.

(5) R. v. Bancroft, 2024 onca 121

A trial judge has a duty to assist a self-represented accused and to guide them throughout the trial so that their defence is brought out with full force and effect. The scope of this duty depends on context and is circumscribed by what is reasonable in the circumstances of a given case. A trial judge has other duties to ensure that a trial is effective, efficient and fair to both sides. The trial judge must ensure that the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties.
For an appeal to be granted on the basis that this duty was violated (in this case, the appellant argues he did not receive sufficient assistance from the trial judge rendering the trial unfair), the trial judge’s failure to assist a self-represented accused must be material to the outcome of the case. Such a failure is not an independent ground of appeal but raises the possibility of an unfair trial or miscarriage of justice that might attract appellate intervention under s. 686(1)(a)(iii) of the Code.
Not every breach of a trial judge’s obligation to assist a self-represented accused will render a trial unfair or result in a miscarriage of justice. The court must assess the cumulative effect of any breaches. The assessment must be holistic so that the appellant’s arguments are considered in the context of the trial as a whole. The court must determine whether, at the end of the day, the accused had a fair trial or whether, on the contrary, a miscarriage of justice occurred.

For more information on a trial judge’s duty to ensure a fair trial, check out Emond’s “Criminal Appeals”, chapters 1, 2, 3 and 10.

(6) R. v. basso, 2024 onca 168

Court of Appeal concludes that the 12-month minimum sentence for s. 271(a) [sexual assault with a minor] is unconstitutional, and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

Sara LittleMarch 29, 2024Comment