E. Ghebria

The applicant sought a declaration that a deceased father's statement, implicating himself in drug importation and exculpating his daughter, was admissible at her trial either as a declaration against penal interest or under the principled exception to the hearsay rule.

The court denied the application, finding that the statement did not meet the criteria for a declaration against penal interest due to lack of apprehended penal vulnerability and remoteness of consequences.

Furthermore, it lacked sufficient indicia of reliability for the principled exception, given the circumstances of its making, the declarant's criminal record for dishonesty, and absence of corroborating evidence.

During a criminal jury trial for sexual assault with a weapon and uttering threats, the defence applied for a mistrial after a police officer testified that seized items and a sexual assault kit were not sent to the Centre for Forensic Sciences because investigators believed sexual intercourse had occurred and the issue was consent.

The defence argued this constituted undisclosed information and prejudicial hearsay undermining the defence theory that no sexual intercourse occurred and that the Crown lacked corroborative forensic evidence.

The court held that disclosure obligations had not been breached and that the defence assumption about forensic testing did not arise from the disclosure provided.

While the officer’s explanation constituted inadmissible hearsay, the prejudice could be cured by a limiting instruction to the jury explaining that the evidence could not be used to establish that sexual intercourse occurred or that police had a reasonable basis for such a belief.

The court concluded there was no real danger of a miscarriage of justice requiring a mistrial.

The Crown brought a pre-trial application under s. 714.1 of the Criminal Code to allow the complainant to testify by video link.

The charges of sexual assault and uttering death threats dated back to 1996.

The accused had caused approximately 16 years of delay by fleeing the country and repeatedly changing counsel.

The complainant, who had attended previous preliminary hearings and trial dates, refused to attend in person again.

The court granted the application, finding that the exceptional history of delay caused by the accused justified permitting the video link testimony to ensure the trial could proceed on its merits.