Other Key Cases and Takeaways

In considering bail pending appeal application, it is improper for the Court to consider withdrawn charges or the circumstances surrounding those charges as they are “unproven allegations that will not be determined in court.”

The Court of Appeal declines to revisit/overturn R. v. Mahal and confirms that interception of private communications targeting individuals does not require individualized reasonable grounds to believe doing so will afford evidence of an offence.

In assessing the admissibility of hearsay evidence under the principled approach, hearsay may be admitted on either the basis of their procedural or their substantive reliability. If one type of reliability is sufficiently made out, then the other form of reliability does not need to be established. Where neither procedural nor substantive reliability on their own provide a sufficient basis to admit a hearsay statement, they “may work in tandem” to admit a hearsay statement where together they clear the threshold reliability hurdle.

Following a jury trial, R.S. was convicted of sexual assault and choking with intent to overcome resistance. R.S. was ultimately sentenced to a conditional sentence of two years’ less a day followed by 2 years of probation for the sexual assault; and 90 days of custody to be served intermittently for the choking offence, to be served concurrently to the conditional sentence.
The Crown appealed the sentence. A majority of the Court of Appeal agreed the sentence was demonstrably unfit nothing that although conditional sentences are now available in sexual assault cases, they will “rarely, if ever, be proportionate in the context of violent sexual assault cases”. The sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3-5 year range for such offences.

Court of Appeal sends reminder as to the importance joint submissions play in the criminal legal system: they are beneficial to the efficient use of court resources and provide certainty to all parties including accused persons and victims. As a result, the test for departing from a joint submission is high and joint submissions should only be rejected in rare cases.
A judge must not reject or “jump” a joint position merely because they believe it to be unfit. They must only depart from a joint submission if the proposed sentence would bring the administration of justice into disrepute or is contrary to the public interest.

Even a bystander to a criminal offence with previous knowledge that an offence may occur is still not culpable unless they are also engaged in some act of aiding or abetting, with the requisite intent.

If a child witness testifies to one proposition, but the trial judge mistakenly believes that the witness testified to something different, the child witness’ age does not matter

Sara LittleOctober 15, 2023Comment