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R v Nedelkof, [1998] O.J. No. 4493 – (Thomas – GenDiv): [8] It is my respectful view that the trial judge maintained jurisdiction over the alleged offences and the defendant because he was clearly satisfied that an information was in existence although it was not physically present in the courtroom for part of the trial proper: See R. v. Frank Read more...

R v Starr, 2000 SCC 40 (Iacobucci): [168] The Crown argued that the “state of mind” or “present intentions” exception to the hearsay rule applied to render Cook’s statement to Giesbrecht admissible. This exception was most recently discussed in detail by this Court in Smith, supra, where it was recognized that an “exception to the hearsay rule arises when the Read more...

R v Ewanchuc, 1999 SCJ 10 (Major): [51] For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R. v. M. (M.L.), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted Read more...

R v Ewanchuk, 1999 SCJ 10 (Major): [56] In Esau, supra, at para. 15, the Court stated that, “before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence”. See also R. v. Osolin, [1993] 4 S.C.R. Read more...

R v Ewanchuk, 1999 SCJ 10 (Major): [25] The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The Read more...