B. McGuire

In a first-degree murder trial, the Crown brought a pretrial application to admit the videotaped police interviews of the eight-year-old brother of the deceased under the principled exception to the hearsay rule.

The child had returned to Jamaica and his mother refused to permit him to testify.

While the necessity requirement was met, the court found the statements lacked threshold reliability due to material inconsistencies, the child's tendency to guess or make assumptions, and the lack of opportunity for cross-examination.

The Crown's application to admit the hearsay evidence was dismissed.

The accused applied for a stay of proceedings during a jury trial for sexual assault with a weapon and uttering threats, arguing that the police lost key seized items including the complainant’s nightgown and the accused’s underwear which could have contained potentially exculpatory forensic evidence.

The defence alleged the loss breached the accused’s s. 7 Charter rights by preventing full answer and defence.

The court applied the framework from R. v. La and R. v. Bero concerning the Crown’s duty to preserve relevant evidence and whether its loss resulted from unacceptable negligence.

The judge found the evidence was misplaced after many years but not due to unacceptable police negligence, noting the items were properly logged and secured and that much of the delay was attributable to the accused fleeing the jurisdiction for extended periods.

The court further held that the defence failed to demonstrate actual prejudice or that the missing evidence would materially assist the defence.

The application for a stay of proceedings was dismissed.