In a jury trial on an allegation of sexual assault against a child, the Crown sought to use text messages disclosed only during the accused’s evidence to impeach the accused and support the complainant’s mother on opportunity.
The court found the timing of disclosure prejudiced the accused because the defence had already cross-examined key witnesses, committed to a factual position undermined by the messages, and the accused had testified without a meaningful opportunity to review or authenticate the material.
The court held that limiting instructions or adjournment could not adequately cure the unfairness in the existing trial.
In combination with severe weather disruptions, unexpectedly lengthy evidence, the accused’s mid-trial arrest, and a necessary five-week adjournment, the resulting risk of miscarriage of justice required a mistrial.
