Erinn O’Marra

The accused, S.J., was charged with sexually assaulting his former employee and friend, M., contrary to section 271 of the Criminal Code.

The trial was completed in less than a day, with only the complainant and the accused testifying.

The Crown invited the court to acquit, and the court did so, providing reasons.

The court found the accused’s denials unequivocal and unshaken, and even if not accepting the accused’s evidence, found the complainant’s evidence unreliable due to memory gaps and other concerns.

The decision discusses the distinction between credibility and reliability, referencing several appellate authorities.

The court considered whether the defence must bring an application under subsection 278.3(1) of the Criminal Code for production of a Law Enforcement Complaints Agency complaint form completed by the complainant prior to police involvement.

The court ruled that the accused must bring the application, following the technical requirements of the Criminal Code and Supreme Court authority, and set out directions for the process and timelines.

The Crown applied to amend the indictment to conform with the evidence by changing the dates on three counts (assault and mischief) against the respondent.

The respondent opposed, arguing prejudice.

The court considered Section 601 of the Criminal Code, noting that time is not an essential element of the offences and no alibi defence was raised.

The court found that the respondent was not prejudiced as the defence theory, based on the complainant's credibility and motive to fabricate, was not impacted by the proposed amendments, and cross-examination was not temporally restricted.

The Crown's application was granted.