Dr. Ken Berger

The Crown brought an application under s. 715(1)(a) of the Criminal Code to admit the preliminary inquiry testimony of a deceased witness at the accused's trial for historical sexual offences.

The accused argued the evidence should be excluded under the trial judge's residual discretion, claiming its prejudicial effect outweighed its probative value and that the witness suffered from dementia.

The court found the evidence had probative value as it could corroborate the complainant's testimony, and its admission would not result in moral or reasoning prejudice.

The court also rejected the unsworn expert opinion regarding the witness's dementia.

The application was granted.

On a bail review, the Crown sought to vacate an interim release order for an accused charged with armed robbery, disguise, firearm offences, and breach of recognizance.

The court held that the justice of the peace provided no reasoned analysis on the secondary and tertiary grounds, conflated the detention grounds, and failed to address critical evidence concerning prior breaches and surety suitability.

On a de novo review, the court found the proposed supervision plan inadequate, the medical evidence largely irrelevant to detention, and a substantial likelihood of further offending if released.

Detention was ordered on both the secondary and tertiary grounds.