Case information
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38483
Her Majesty the Queen v. J.M.
(Ontario) (Criminal) (As of Right)
(Publication ban in case) (Publication ban on party)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2019-06-03 | Appeal closed | |
| 2019-04-29 | Certificate (on limitations to public access), (Letter Form), 23B-Condensed Book | Her Majesty the Queen |
| 2019-04-29 | Transcript received, 57 pages | |
| 2019-04-25 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2019-04-25 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2019-04-24 | Certificate (on limitations to public access), (Letter Form), 23B-Condensed Book | Her Majesty the Queen |
| 2019-04-18 |
Judgment on the appeal rendered, Abe Ka Côt Row Mar, The appeal from the judgment of the Court of Appeal for Ontario, Number C64081, 2018 ONCA 1054, dated December 20, 2018, was heard on April 18, 2019, and the Court on that day delivered the following judgment orally: ABELLA J. — We are all of the view that the failure to attend a trial is not presumptively after-the-fact conduct. Its admissibility must be assessed on a case-by-case basis. A majority, however, is of the view that the appeal should be allowed substantially for the reasons of Justice Huscroft. Justice Karakatsanis and I would dismiss the appeal for the reasons of Justice Nordheimer. The appeal is therefore allowed and the convictions are restored. Allowed |
|
| 2019-04-18 | General proceeding, (Letter Form), Questionnaire regarding the Publication Ban | J.M. |
| 2019-04-18 | General proceeding, (Letter Form), Questionnaire regarding the Publication Ban | Her Majesty the Queen |
| 2019-04-18 | Appellant's condensed book, (Book Form), 14 copies (Submitted in Court) | Her Majesty the Queen |
| 2019-04-18 |
Hearing of the appeal, 2019-04-18, Abe Ka Côt Row Mar Judgment rendered |
|
| 2019-04-11 | Notice of appearance, Solomon Friedman and Meaghan McMahon will appear before the court. Mr. Friedman will present oral arguments | Criminal Lawyers' Association (Ontario) |
| 2019-04-11 | Notice of appearance, Michael A. Johnston and Matthew B. Day will appear before the court. Mr. Johnston will present oral arguments | J.M. |
| 2019-04-10 | Appeal perfected for hearing | |
| 2019-04-05 | Intervener's book of authorities, (Book Form), (2 volumes), Completed on: 2019-04-05 | Criminal Lawyers' Association (Ontario) |
| 2019-04-05 | Intervener's factum, (Book Form), Completed on: 2019-04-05 | Criminal Lawyers' Association (Ontario) |
| 2019-04-05 | Certificate of counsel (attesting to record), (Letter Form) | J.M. |
| 2019-04-05 | Certificate (on limitations to public access), (Letter Form), 23B - Amended certificate required. (rec' 04/11/19) | J.M. |
| 2019-04-05 | Certificate (on limitations to public access), (Letter Form), 23A - Amended certificate required. (rec' 04/11/19) | J.M. |
| 2019-04-05 | Respondent's factum, (Book Form), Completed on: 2019-04-05 | J.M. |
| 2019-04-03 | Correspondence received from, (Letter Form), 1 reserved seat requested. | Her Majesty the Queen |
| 2019-04-03 | Notice of appearance, (Letter Form), Luke Schwalm and Alexander Alvaro will appear before the court. Mr. Schwalm will present oral arguments. | Her Majesty the Queen |
| 2019-03-26 | Order on motion for leave to intervene, by KARAKATSANIS J. | |
| 2019-03-26 |
Decision on the motion for leave to intervene, Ka, UPON APPLICATION by the Criminal Lawyers’ Association (Ontario) for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene is granted. The intervention shall be limited to the ground set out at para. 6(i) of the said intervener’s Memorandum of Argument. The said intervener shall be entitled to serve and file a factum not exceeding ten (10) pages in length on or before April 5, 2019. The said intervener is granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal. It is not necessary to consider the appellant’s request to serve and file a factum in reply to the intervention. The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and respondent any additional disbursements resulting from its intervention. Granted |
|
| 2019-03-26 | Submission of motion for leave to intervene, Ka | |
| 2019-03-20 | Reply to the motion for leave to intervene, (Letter Form), Completed on: 2019-03-20 | Criminal Lawyers' Association (Ontario) |
| 2019-03-19 | Response to the motion for leave to intervene, Completed on: 2019-03-19 | Her Majesty the Queen |
| 2019-03-15 | Notice of name, (Letter Form) | Criminal Lawyers' Association (Ontario) |
| 2019-03-15 | Motion for leave to intervene, (Book Form), Completed on: 2019-03-15 | Criminal Lawyers' Association (Ontario) |
| 2019-03-08 | Certificate of counsel (attesting to record), (Letter Form) | Her Majesty the Queen |
| 2019-03-08 | Certificate (on limitations to public access), (Letter Form), 23B | Her Majesty the Queen |
| 2019-03-08 | Appellant's book of authorities, (Book Form), Completed on: 2019-03-08 | Her Majesty the Queen |
| 2019-03-08 | Appellant's record, (Book Form), (11 volumes), Completed on: 2019-03-08 | Her Majesty the Queen |
| 2019-03-08 | Appellant's factum, (Book Form), Completed on: 2019-03-08 | Her Majesty the Queen |
| 2019-03-04 | Notice of hearing sent to parties | |
| 2019-02-26 |
Appeal hearing scheduled, 2019-04-18, (Previous tentative hearing date was May 24, 2019). Judgment rendered |
|
| 2019-02-21 |
Order by, by THE CHIEF JUSTICE, UPON REQUEST by the respondent to reschedule the hearing of the appeal tentatively scheduled for May 24, 2019; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The hearing of this appeal is rescheduled and tentatively set for April 18, 2019. The schedule for serving and filing the material is set as follows: 1) The appellant’s record, factum and, if any, book of authorities shall be served and filed on or before March 8, 2019. 2) Any person wishing to intervene in this appeal under Rule 55 of the Rules of the Supreme Court of Canada shall serve and file a motion for leave to intervene on or before March 15, 2019. 3) The appellant and respondent shall serve and file their responses, if any, to the motions for leave to intervene on or before March 19, 2019. 4) Replies to any responses to the motions for leave to intervene shall be served and filed on or before March 21, 2019. 5) Any intervener granted leave to intervene under Rule 59 of the Rules of the Supreme Court of Canada shall serve and file its respective factum and, if any, book of authorities on or before April 5, 2019. 6) The respondent’s record, factum and, if any, book of authorities shall be served and filed on or before April 5, 2019. Allowed, no order as to costs |
|
| 2019-02-20 | Correspondence received from, (Letter Form), the appellant. Response to the letter of the respondent requesting the rescheduling of the tentative hearing date of May 24, 2019. | Her Majesty the Queen |
| 2019-02-19 | Correspondence received from, (Letter Form), the respondent. Request to reschedule tentative hearing date of May 24, 2019. | J.M. |
| 2019-02-01 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2019-01-31 | Letter acknowledging receipt of a notice of appeal | |
| 2019-01-18 | Certificate (on limitations to public access), (Letter Form), 23B | Her Majesty the Queen |
| 2019-01-18 | Certificate (on limitations to public access), (Letter Form), 23A | Her Majesty the Queen |
| 2019-01-18 | Notice of appeal, (Letter Form), Amended notice required-rec'd 2019/02/01, Completed on: 2019-01-18 | Her Majesty the Queen |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| J.M. | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Criminal Lawyers' Association (Ontario) | Intervener | Active |
Counsel
Party: Her Majesty the Queen
Counsel
720 Bay Street, 10th Floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 314-6632
FAX: (416) 326-4646
Email: luke.schwalm@ontario.ca
Agent
1300-100 Queen Street
Ottawa, Ontario
K1P 1J9
Telephone: (613) 369-4795
FAX: (613) 230-8842
Email: kperron@blg.com
Party: J.M.
Counsel
200 Elgin Street
Suite 800
Ottawa, Ontario
K2P 1L5
Telephone: (613) 233-7747
Email: mj@sjhdlaw.ca
Party: Criminal Lawyers' Association (Ontario)
Counsel
Meaghan McMahon
200 Elgin Street
Suite 600
Ottawa, Ontario
K2P 1L5
Telephone: (613) 237-2290
FAX: (613) 237-0071
Email: solomon@edelsonlaw.ca
Summary
Keywords
Criminal law - Evidence - Admissibility - Charge to jury - Circumstantial evidence - After-the-fact conduct - Whether after-the-fact conduct evidence admissible - Whether trial judge failed to provide proper jury instruction on after-the-fact conduct.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The respondent was convicted of two counts of sexual assault. At a voir dire, the Crown sought permission to lead as consciousness of guilt evidence certain after-the-fact conduct establishing that the respondent had failed to attend court on his original trial date. In response, the respondent sought to establish that he failed to attend because his ex-girlfriend had terminated her suretyship and he was experiencing emotional and financial difficulties. The trial judge did not allow the respondent to testify at the voir dire and, ultimately, he admitted the evidence. At trial, the jury was charged on the use it could make of the after-the-fact conduct evidence. The respondent successfully appealed his conviction. A majority of the Court of Appeal allowed the appeal and ordered a new trial on the basis that the trial judge did not conduct a proper evaluation of the evidence in deciding its admissibility, nor did he properly charge the jury on the use it could make of that evidence. Huscroft J.A., dissenting, would have dismissed the appeal.
Lower court rulings
Ontario Superior Court of Justice
Respondent convicted of sexual assault
Court of Appeal for Ontario
2018 ONCA 1054, C64081
Appeal allowed and new trial ordered
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available