Jurisdictions / Canada
A judge told jurors there was no consent in law unless the complainant communicated it by words or conduct. That is not the law for the act of sexual assault. Combined with a Crown closing that said the accused had every reason to lie, the conviction could not stand.
Because the formal order was never issued, the court still had power to reopen. It declined: the delay was largely unexplained, the proposed fresh evidence was not truly fresh, and nothing suggested a miscarriage of justice.
Twenty-four years after a jury convicted Jennifer Gaskin of manslaughter in the death of her newborn son, fresh expert reports undermined the pathology evidence that shaking caused the death. With the Crown's consent, the court found the conviction unsustainable because of flawed pathological evidence, set it aside, entered an acquittal and called her the victim of a miscarriage of justice.
A seven judge majority held the trial judge should have kept Awale Hussein's youth findings and violent convictions from the jury. Yet the evidence on identity and intent was so strong that the Court applied the curative proviso and dismissed the appeal.
The Crown refused a judge-alone trial that would have finished on time. The Supreme Court held that the old "transitional" excuse for delay no longer applied, set aside the jury's verdicts and stayed the prosecution for breach of the right to be tried within a reasonable time.
The Crown told the jury Leighton Hay shaved off his dreadlocks after a nightclub shooting. Nobody tested the hair at trial. Years later, forensic experts found the clippings came mainly from his face, and the Supreme Court of Canada admitted that evidence and set aside the convictions.