B. Cunningham

The accused, charged with historical sexual offences including gross indecency, brought pre-trial applications seeking to declare former s. 157 of the Criminal Code invalid under s. 15 of the Charter and s. 1(b) of the Bill of Rights.

He also sought a stay of proceedings under ss. 7 and 11(a) of the Charter due to delay in being informed of the specific offences.

The court dismissed the applications, finding that the Charter did not apply retrospectively to the historical offences, the former Code provisions did not violate the Bill of Rights, and the delay was largely attributable to the defence's tactical decisions without establishing prejudice to fair trial interests.

The accused pleaded guilty to possession of child pornography involving a substantial collection of images and videos depicting very young children in explicit sexual acts.

The court emphasized that denunciation and general deterrence are the dominant sentencing principles for child pornography offences, noting the continuing victimization caused by the possession and circulation of such material.

While the accused was a first offender with positive personal circumstances and a supportive family, aggravating factors included the disturbing nature of the material, the young age of the victims, the duration of offending, and the absence of evidence that the accused had sought specialized treatment.

The court rejected a defence proposal for a significantly lower custodial sentence and imposed a custodial term within the established range.

Ancillary orders included probation, sex offender registration, a prohibition order relating to contact with minors, DNA collection, and forfeiture of computer equipment.

The accused applied under ss. 278.1–278.9 of the Criminal Code for production of various third‑party records relating to the complainant in a historic sexual assault prosecution.

At Stage 1, the court assessed whether the requested records were likely relevant and whether production to the court was necessary in the interests of justice.

The judge found likely relevance only for limited records from the Hospital for Sick Children, the Ontario Disability Support Program, and the complainant’s family medical clinic, and ordered those records produced to the court for review.

After reviewing the records at Stage 2, the court concluded that none contained information linking the accused to the complainant’s mental health issues or assisting with the timeline of events, and directed that the matter proceed by agreed statement of facts reflecting that absence.

The accused applied under s. 591(3)(a) of the Criminal Code to sever one count of sexual assault from four other counts involving different complainants.

The court considered the governing factors for severance, including the factual and legal nexus between the counts, potential prejudice to the accused, the possibility of similar fact evidence, and the desirability of avoiding multiple trials.

The allegations involved two related complainants within the accused’s family and shared similarities in circumstances, authority dynamics, and opportunity.

The court found a sufficient nexus between the counts and concluded that a single trial was necessary for completeness of narrative and context.

The accused failed to establish that the interests of justice required severance.