Ben Strickland

The accused brought two applications under sections 276 and 278.92 of the Criminal Code seeking to admit evidence of the prior sexual activity of two young complainants (sisters).

Under section 278.92, the accused sought to admit text messages exchanged between the accused and one complainant, and text messages between that complainant and her friend.

Under section 276, the accused sought to admit evidence that the younger complainant had viewed pornography and attempted to observe the accused and her mother engaging in sexual activity.

The court found that the text messages constituted records under section 278.1 and were capable of being admitted.

At stage two, both the complainant's counsel and the Crown conceded that the text messages had significant probative value not substantially outweighed by prejudice, and the court admitted them.

For the section 276 application, the court found that viewing pornography and observing sexual activity constitute sexual activity within the meaning of section 276, and that the evidence was sufficiently specific.

At stage two, the court balanced the factors under section 276(3) and found that the evidence had significant probative value relevant to the accused's ability to make full answer and defence, and admitted the evidence subject to parameters to be determined by the trial judge.

This decision addresses a mid-trial application by the Crown to admit four out-of-court hearsay statements from two child complainants (H.B. and S.B.) in a sexual assault trial.

Due to the children's inability to provide meaningful in-court testimony, the Crown sought to admit their video-taped statements to police and H.B.'s utterances to her parents under the principled exception to the hearsay rule, requiring proof of necessity and threshold reliability.

The court found necessity was met for all statements.

For reliability, H.B.'s statements to her parents and police were deemed reliable, significantly corroborated by forensic DNA evidence.

However, S.B.'s video statement to police was found unreliable due to inconsistencies, lack of detail, and insufficient circumstantial guarantees of trustworthiness.

Two commercial truck drivers were charged under the Immigration and Refugee Protection Act after 11 foreign nationals were discovered hidden in the sleeping cab of their truck at the Canada-US border.

The accused brought a motion arguing no case to answer, asserting the Customs Act should apply, which the court dismissed.

At trial, the court rejected the driver's testimony denying knowledge of the passengers, finding him guilty based on his attempt to evade secondary inspection.

The co-driver, who was resting in the passenger seat, was acquitted as the court found his denial of knowledge could reasonably be true and there was insufficient evidence of willful blindness.