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The Court of Appeal held the pedestrian had the right of way and the driver breached s. 179(3) of the Motor Vehicle Act. Liability was reapportioned 70/30.
Conviction appeal dismissed: the myths and stereotypes instruction, although imperfect, was functional when viewed with the whole trial record and did not prevent permissible non‑stereotypical inferences; the prior consistent statements instruction (including mid‑trial warning) was adequate to prevent improper use as proof of truth; the five‑year sentence for sexual assault was within the appropriate range and not vitiated by a material misapprehension of evidence, so sentence appeal dismissed (leave to appeal sentence granted but dismissed on merits).
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The trial judge's responses to the jury's provocation questions were deficient and in part amounted to misdirection about which conduct had to be 'sudden', creating doubt about the jury's rejection of the provocation defence; accordingly the conviction could not stand and a new trial was ordered.
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The Court allowed the appeal, set aside the convictions and ordered a new trial because the jury was not adequately equipped to assess the reliability of the critical eyewitness identification evidence; the charge failed to sufficiently address specific and material frailties in how identifications were generated and documented (notably single-photo procedures, absence of records, and a significant height discrepancy compounded by improper use of corroboration), and those omissions were not harmless given the evidence was not overwhelming.
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The majority held the appellant’s convictions for sexual interference and invitation to sexual touching were unreasonable because they were irreconcilable with the jury’s acquittal on sexual assault on the same evidence; J.F. is authoritative guidance that inconsistent verdicts cannot be cured on appeal by asserting jury confusion about legally correct instructions where the Crown has not successfully appealed the acquittal; accordingly the convictions were quashed and acquittals entered on those counts; the Crown was granted an extension of time to cross-appeal but that cross-appeal was dism…
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The trial Crown invited the jury to treat prior consistent statements as proof of their truth and the trial judge failed to correct this and failed to instruct the jury on the limited use of prior consistent statements and similar fact evidence; those errors were legal errors that tainted the convictions and required the convictions to be set aside and a new trial ordered.
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The trial judge's charge sufficiently instructed the jury on identification and circumstantial evidence; the absence of additional cautions did not amount to misdirection or non-direction and did not warrant appellate interference, therefore the conviction and sentence appeals are dismissed (with custodial portion served rendering that aspect moot).
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The charge, read as a whole, correctly instructed the jury to assess self-defence at the time of the shooting and to apply the law given by the judge rather than counsel’s submissions; omission of a Baxter instruction and a fuller Vetrovec warning did not render the charge unfair in context (defence not objecting to draft charge and judge appropriately cautioned about witness Sampson), therefore no appellate relief warranted and appeal dismissed.
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The judge erred by instructing the jury on honest but mistaken belief where no air of reality existed and by mischaracterizing the appellant's position in the charge, which could only confuse the jury; these errors warranted setting aside the conviction and ordering a new trial.
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Because the Crown repeatedly invited the jury to use evidence from one count to infer guilt on other counts and the trial judge’s jury charge and responses to jury questions were ambiguous, contradictory and failed to unambiguously prohibit impermissible cross-count reasoning, there was a real risk the jury relied on legally improper reasoning; the convictions were therefore set aside and a new trial ordered on all counts except counts 5, 6 and 10.
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