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Ontario Court of Appeal upheld a sexual assault conviction, finding no air of reality to an honest-but-mistaken-belief instruction and no error in the jury charge.
The Ontario Court of Appeal granted bail pending appeal to Sheldon McFarlane, finding his self-defence jury-instruction ground clearly surpassed the not frivolous threshold.
The Supreme Court of Canada restored B.F.’s attempted-murder conviction for her mother and upheld the convictions involving the child, finding no instructional error.
The court held there was an air of reality to self-defence and defence of property in a manslaughter trial, and that s. 35 can apply to a guest who refuses to leave.
The Court of Appeal dismissed Mr. Schank’s appeal from a sexual assault conviction, rejecting claims of misapprehended evidence, burden shifting, and an air of reality error.
Appeal dismissed: trial judge correctly declined to leave accessory-after-fact to attempted murder to the jury because there was no air of reality to attempted murder on the trial evidence (no live issue on causation); although attempted murder can in rare cases be an included offence under ss.660/662, where the principal's acts indisputably caused death a jury cannot reasonably convict of attempt and thus accessory-after-fact to attempted murder was not available.
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The court acquitted Ryan Patrick Cador of aggravated assault after finding self-defence had an air of reality and the Crown did not disprove it beyond a reasonable doubt.
The trial judge did not err: on the appellant's testimony and the totality of the evidence there was no evidentiary basis from which a properly instructed jury could infer sudden loss of self-control or action on the sudden; the evidence consistently supported deliberate self-defence rather than provocation, therefore provocation lacked an air of reality and the conviction is upheld.
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The Supreme Court of Canada held that lesser included offences had an air of reality, but the error did not taint the attempted murder convictions.
The evidence supported an air of reality to the appellant's defence of honest but mistaken belief in communicated consent up until the complainant fell asleep or passed out, and because the trial judge failed to put that defence to the jury the conviction could not stand and a new trial was required.
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