October 2017 Ontario Court of Appeal Review

  • October 10, 2017
  • Crystal Tomusiak

Crystal Tomusiak brings you the Ontario Court of Appeal criminal law decisions you need to know. This month: How s. 276 applies to an entire relationship, reversing a s.11(b) stay of first-degree murder charges, and what happens to a murder charge when sexual assault occurs after the victim is already dead.


1. R. v. L.S., 2017 ONCA 685: Relationship Evidence Subject to Section 276

L.S. argued that the trial judge had erred in dismissing his s. 276 application prior to his sexual assault trial. The appellant was convicted of a single instance of sexually assaulting his wife, in addition to a couple instances of simple assault. At his trial, he had sought permission for his counsel to cross-examine the complainant about the nature of the marital sexual relationship before and after the alleged sexual assault. He could not recall specific instances of sexual activity but wished to give evidence about the fact that he and the complainant had regularly engaged in consensual sexual activity both before and after the alleged sexual assault.

The appellant took the position that s. 276 did not apply to such evidence since it did not involve references to specific instances of sexual activity. He argued that the requirement in s. 276 for proposed evidence to relate to “specific instances of sexual activity” limited the type of sexual activity evidence to which s. 276 applied. In support of his argument, he relied on a case from the Ontario Superior Court of Justice. The Court of Appeal rejected this argument, holding that s. 276 applied to all evidence of other sexual activity and that the requirement for “specific instances of sexual activity” limited the type of sexual activity evidence which could be admitted.

Nevertheless, the Court of Appeal held that the trial judge had erred in dismissing the s. 276 application. With respect to the requirement that other sexual activity evidence be of specific instances of sexual activity, the Court held that this does not always mean that it must relate to a particular instance. Rather, the requirement of specificity will vary depending on the nature of sexual activity evidence proposed for admission. If such evidence is of a specific instance, then the details must identify that particular incident. If the evidence is general, such as evidence of the sexual relationship between the accused and complainant, then the specificity requirement may be satisfied by identifying the relationship and its nature rather than details of any particular occasion of sexual activity.

The Court of Appeal held that the evidence in this case had significant probative value and little, if any, prejudicial effect. While not determinative in any given case[1], the Court of Appeal agreed with the appellant that evidence that the complainant and appellant continued their sexual relationship after the alleged sexual assault “as if nothing happened” was evidence from which a trier of fact could infer that nothing had in fact happened. The fact that the complainant continued to have sexual relations with the appellant should therefore have been admitted.

Although the evidence should have been admitted, the appeal was dismissed since the dismissal of the application caused no substantial wrong or miscarriage of justice. As it happened, the jury heard evidence that the spousal relationship had continued and the appellant and complainant had shared the same bed following the alleged sexual assault. It would have been obvious that the sexual relationship had continued.

2. R. v. Picard, 2017 ONCA 692: Crown Appeal of s. 11(b) Stay of Proceedings in Murder Trial

Picard was facing a trial on a charge of first degree murder. After the Supreme Court of Canada released its decision in Jordan a few months prior to his trial, he applied for a stay of proceedings on the basis that his right to be brought to trial within a reasonable time had been infringed. The trial judge agreed that his s. 11(b) right had been violated and granted a stay of proceedings.

The Crown appealed. The appeal was allowed on the basis of the Court’s application of the transitional exceptional circumstances analysis, but the Court of Appeal was clear that there were delay concerns that, along with the overall length of delay, would have warranted a stay if the transitional exceptional circumstances had not applied.

The major delay issue that concerned both the trial judge and the Court of Appeal was the Crown’s refusal to accept earlier dates that were not available to the two assigned Assistant Crown Attorneys, even though the refusal to do so resulted in significant additional delay.

Prior to trial, Picard had attempted to remedy the delay by bringing a motion to expedite the trial. The Crown opposed the application and called evidence about the significant challenges that would be involved with assigning new Crowns at that stage in the proceedings. Picard’s motion was dismissed. The motion judge was of the view that allowing the application would effectively override the Attorney General’s discretion in assigning counsel. The motion judge further accepted that the Crown had valid reasons for being unavailable (the assigned Crowns were required in other complex murder trials during the earlier timeframe).

A week prior to trial, the defence notified the Crown that a s. 11(b) application would be brought. Despite the late notice, the trial judge permitted the application to proceed, and, upon hearing the application, held that Picard’s s. 11(b) rights had been infringed. Once defence-caused delay and delay for discrete exceptional events were deducted, the remaining delay was 40 months, well above the presumptive ceiling of 30 months set out in Jordan. The trial judge found that the complexity of the case did not render the delay reasonable. In rejecting the Crown’s argument that the delay was acceptable in view of the Crown’s reasonable reliance on the previous s. 11(b) regime, the trial judge noted that there was serious prejudice to Picard (who was in custody) and that the Crown’s choice to refuse earlier trial dates demonstrated a lack of regard for Picard’s s. 11(b) rights.

The appeal was allowed on the basis that the trial judge had erred in her analysis of the transitional exceptional circumstances. She had overstated the institutional delay and had failed to give due regard under the Morin framework to the seriousness of the offence and the degree of complexity involved in bringing the case to trial.

The Court of Appeal, however, agreed with the trial judge that the Crown’s refusal to accept earlier trial dates and reassign the case was unreasonable under both Jordan and Morin. Even under Morin, this factor would have favoured a stay. If the case had been conducted entirely under the Jordan regime, this unreasonable choice may very well have been determinative in ensuring that a stay of proceedings resulted. The Court acknowledged that the Crown had legitimate reasons for preferring to keep the same senior Crown counsel on the file from start to finish. This was an appropriate objective, which might sometimes justify a moderate delay, but it had to be balanced against other important concerns such as the in-custody accused’s s. 11(b) rights in a case in which the total delay was already substantial. Weighing all these factors, the Court of Appeal noted that the motion to expedite the trial ought to have been granted, even if it meant that new Crowns would have to be assigned. Given that there were eight months before the proposed trial date offered by the Court, the new Crowns would have had time to be brought up to speed. It was therefore unreasonable for the Crown to cause seven additional months of additional delay in the circumstances.

Nevertheless, despite this serious concern, the Court of Appeal found that there was little institutional delay and the Crown reasonably relied on the Morin framework in proceeding in the manner that it did.

In its analysis of the delay in this case, the Court of Appeal found that the trial judge made another error, although it did not have any impact on the result. In assessing the overall complexity of the case, the trial judge erred in considering its complexity only as of trial. By then the issues had narrowed and the trial time had been shortened. She should have looked at the case as a whole over the entire history of the proceeding. A case can be complex in the earlier stages, requiring voluminous disclosure and a lengthy preliminary inquiry, but then be streamlined and result in a relatively straightforward trial due to the efforts of the parties in narrowing the issues and evidence.

3. R. v. Niemi, 2017 ONCA 720: First Degree Murder “While Committing a Sexual Assault”: Can the Death Precede the Sexual Assault?

Niemi killed a woman and then performed apparently sexual acts on her body. After her death, he removed her clothing exposing her breasts and sexual organs and cut her with a knife below her breast. The question was whether he could properly have been found guilty of murder under s. 231(5)(b) on the basis that he had committed the murder while committing or attempting to commit a sexual assault.

The Court of Appeal agreed with Niemi that a sexual assault requires a live victim. It was not therefore possible for the acts that followed the death of the victim to be characterized as sexual assault. However, s. 231(5)(b) was properly left with the jury on two bases. First, it would have been open to the jury to find that the overtly sexual acts that occurred after death constituted an attempted sexual assault even if there was no longer a live victim who could actually be sexually assaulted. A person is guilty of attempting a sexual assault if he knows that the victim may be alive but proceeds with the sexual activity anyway. The mens rea for the offence of attempted sexual assault in such circumstances is not based on recklessness or taking an unjustified risk, but rather is based on his intention to sexually violate the victim “even if alive.”

Second, the jury was entitled to find that the acts that preceded the overtly sexual acts were themselves sexual in nature, if it found that the entire attack was sexually motivated or sexual in nature. The trial judge was correct in instructing the jury that the strangulation that preceded death could itself be found to be a sexual assault. Although Niemi could not be found guilty of first degree murder as a result of committing a sexual assault after death resulted, he could be found guilty of committing a first degree murder if the strangulation was itself a sexual assault. If the jury found that this was a sexually motivated killing, then it could reasonably make this finding. Sexually motivated murders are first degree murders under s. 231(5)(b) because the assault is sexual from the beginning if the assailant’s purpose in applying the physical force is to facilitate sexual activity.

To establish that a killing was sexually motivated, the Crown need not adduce any discrete evidence that the accused intended to sexually assault the victim before commencing the assault resulting in death. The close link between the violence and the sexual activity that followed death can be sufficient circumstantial evidence from which such an inference can be drawn. If, however, there is reasonable doubt that the sexual activity was “a new initiative arising after death,” then the requirement of “while committing or attempting to commit” in s.231(5) will not be met.

The conviction for first degree murder was reasonable, despite the evidence from Niemi that the killing was not motivated by a desire for sexual gratification. There were statements from him that he had performed the apparently sexual acts after the victim’s death to deceive investigators into believing it was a sexual killing thereby deflecting suspicion away from himself. This did not assist him in his argument that no sexual killing took place. In fact, it provided further support for the conclusion that the killing was sexual in nature, since he intended to perform acts that would objectively be viewed by others as sexual. Objectively, those acts were enough to constitute a sexual assault had the victim been alive. The events took place in an unbroken sequence and it was open for the jury to infer that Niemi intended to sexually violate the victim from the outset.


About the author

Crystal Tomusiak is an Assistant Crown Attorney in the Sault Ste. Marie Crown Attorney’s Office. Any views expressed herein are personal and are not meant to bind or represent those of the Ministry of the Attorney General of Ontario in any way.


[1] In fact, the Court of Appeal acknowledged that such evidence would be “far from determinative” since “different people will react differently to the same event.”

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