Cara Sweeney

The Crown brought an application to admit prior convictions of the accused, Jorge Nieto-Zelaya, as similar fact evidence in a sexual assault trial involving a young complainant (RM).

The prior convictions related to sexual touching involving another young complainant (MG) while the accused was providing hair care services.

The defence argued that the similarities were generic and that the prejudicial effect outweighed the probative value.

Applying the framework from R. v. Handy, the court found the evidence highly probative, demonstrating a specific and distinctive pattern of predatory conduct by the accused towards young boys in the context of hair care services, which defied coincidence.

The court concluded that any moral or reasoning prejudice could be managed through proper jury instructions.

The application to admit the similar fact evidence was granted.

The defendant, Jordan Cann, brought an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings due to unreasonable delay.

The total delay from arrest to projected trial end was 36 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

The court analyzed periods of delay, attributing significant portions to exceptional circumstances, specifically the COVID-19 pandemic (204 days in 2020 and 109 days in 2021) and the unforeseen unavailability of a complainant for the preliminary inquiry (66 days in 2021).

The court found that these exceptional circumstances, when deducted, brought the net delay well within the Jordan framework.

Consequently, the application was dismissed.

The accused, a pastor of a Spiritual Baptist Church, was charged with multiple counts of sexual assault, administering a noxious substance, fraud, and theft relating to four female complainants.

The Crown sought to admit the evidence of the complainants as similar fact evidence, which the court allowed, finding no collusion.

The court rejected the defence's application to call an expert on memory reliability.

The court found that the accused used his position of spiritual authority to manipulate the complainants, including inventing a spiritual medium called 'the Gorgan' to extort money and induce sexual activity.

The accused was found guilty of sexual assault, administering a noxious substance, and fraud relating to three of the complainants, but acquitted of the charges relating to the fourth complainant and certain theft charges.

This is a youth criminal justice matter involving a defence application regarding the proper procedure for using materials obtained from a parallel civil proceeding.

The defence sought a ruling that counsel was properly in possession of materials the complainant produced in civil litigation and that the section 278 Criminal Code regime did not apply.

The Crown objected to cross-examination questions based on medical records obtained through civil discovery.

The Superior Court had previously found a breach of the deemed undertaking rule when civil counsel provided the materials to defence counsel without prior judicial oversight.

The trial judge determined that the Supreme Court decision in R. v. Shearing applied, permitting the defence to proceed with cross-examination on documents already in its possession, subject to admissibility considerations.

The Crown sought to introduce similar fact evidence between two separate sexual assault allegations involving different complainants.

The Crown argued that similarities between the incidents demonstrated that the accused administered a drug to each complainant to facilitate sexual assault and supported credibility findings.

The court reviewed the governing test for similar fact evidence, including the requirement that its probative value outweigh its prejudicial effect and that the similarities render coincidence objectively improbable.

Despite some overlapping circumstances, the court found significant differences between the incidents, including the nature of the relationships, the circumstances of the encounters, the symptoms described, and an eight‑year gap between the events.

The court concluded the similarities were not sufficiently distinctive to overcome the highly prejudicial effect of the proposed evidence.

The two accused were charged with drugging and sexually assaulting two different complainants.

The first complainant alleged she was drugged and assaulted by one of the accused in 2003, but the court found reasonable doubt due to inconsistencies in the timeline and lack of corroborating evidence.

The second complainant alleged she was drugged and assaulted by both accused in 2011 after a night of heavy drinking.

The court found reasonable doubt that she was drugged, noting her ability to walk and send text messages during the alleged timeframe.

The court also found reasonable doubt regarding her lack of consent, or alternatively, that the accused had an honest but mistaken belief in her consent.

Both accused were found not guilty on all charges.