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The Ontario Court of Appeal dismissed an appeal from a sexual-assault conviction, holding that no W.(D.) instruction was required on the evidence at issue.
The appeal is allowed and a new trial ordered because the trial judge misdirected the jury by excluding the defence inference that absence of forensic evidence could raise a reasonable doubt and failed to correct the Crown's unsupported scientific submissions about the toxicology report; those material errors undermined the defence and created trial unfairness such that the curative proviso does not apply.
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The common-sense inference instruction was proper because the evidence, including toxicology showing toxic diphenhydramine levels and alcohol in a young child and the deliberate isolation of the children while administering adult medication and alcohol, made death or serious bodily harm a reasonably predictable consequence; the trial judge's instruction was therefore appropriate and any minor failures to directly link evidence to legal elements were not reversible error. All other grounds of appeal were rejected and convictions upheld.
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The court refused to admit a late supplementary toxicology report, finding it non-compliant, not justified by due diligence, and prejudicial, but allowed limited testimony on later-disclosed timing evidence.
The court held that Larry Amero’s bedside statement to police was voluntary and admissible, finding he had an operating mind despite fentanyl and propofol.
The Supreme Court of British Columbia dismissed a sexual assault conviction appeal, upholding findings on credibility, capacity to consent, and admitted toxicology evidence.
The appeal is dismissed because the trial judge's credibility findings were supported by the evidence including eyewitness testimony and a toxicology report; she reasonably concluded the complainant lacked capacity to consent and there was no misapprehension of the evidence on toxicology or DNA, nor any indication the criminal record was used for an improper propensity purpose.
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The trial judge's instructions on intoxication and on planning and deliberation contained the essential legal elements and the absence of an explicit comparison of degrees of intoxication did not vitiate the charge; the judge's comments on the defence toxicologist were supported by the evidence and did not unfairly undermine the defence; therefore the appeal is dismissed.
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The court found Ruby Ann Ruffolo guilty of first degree murder, accepting witness evidence and toxicology showing a fatal heroin and amitriptyline overdose.
The Court held the toxicology fresh evidence was admissible on appeal because it was reliable, relevant to decisive issues (timing of last drink, credibility, planning and drowning), and sufficiently cogent that it could reasonably be expected to have affected the jury’s verdict; the failure to challenge the Crown toxicologist at trial was not a bar to admission because the new evidence corrects an unanticipated and significant factual error in the trial evidence; accordingly the conviction was quashed and a new trial on the first degree murder charge ordered.
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