A. Bigioni

The accused, charged with sexual assault, brought an application under s. 276(2) of the Criminal Code to adduce text messages exchanged with the complainant before and after the alleged offence.

The accused argued the sexualized messages formed part of the subject matter of the charge or were otherwise admissible to show the complainant's state of mind and to challenge her credibility.

The court held that the messages did not form part of the subject matter of the charge and were subject to the s. 276 screening regime.

The court ruled the messages were inadmissible to show the complainant's state of mind regarding consent, as this relied on myth-based reasoning.

However, certain messages were admitted for the limited purpose of exploring material inconsistencies in the complainant's preliminary hearing evidence.

The accused was charged with sexual assault and choking.

On the eve of the preliminary hearing, the Crown withdrew the choking charge, disentitling the accused to a preliminary hearing.

The accused sought to re-elect to a judge-alone trial in Provincial Court, but the Crown refused consent unless the accused waived his s. 11(b) Charter rights.

The accused brought an abuse of process motion.

The court found the Crown's conduct fell outside core prosecutorial discretion and was not fair and objective, amounting to an abuse of process under s. 7 of the Charter.

The court granted the motion, allowing the accused to re-elect without conditions.

The accused was tried on charges of sexual assault, sexual interference, invitation to sexual touching, and assault arising from alleged long-term abuse by a step-parent against a child complainant.

The case turned primarily on credibility and reliability.

The court applied the reasonable doubt standard and the W.(D.) framework, and found significant gaps, shifting memories, new allegations, and material inconsistencies in the complainant’s evidence, particularly concerning the alleged first and last incidents and the circumstances of disclosure.

Although parts of the accused’s evidence were not accepted, the evidence as a whole left reasonable doubt.

The accused was acquitted on all counts.