The appellant appealed his conviction for sexual assault of a developmentally disabled complainant and an eight-month custodial sentence.
The majority held that the complainant’s videotaped and oral out-of-court statements were properly admitted under the principled hearsay exception because the evidence established necessity through her indefinite inability to testify and threshold reliability through timing, demeanour, absence of apparent fabrication, and corroborative admissions by the appellant.
The court further upheld findings that the complainant lacked capacity to consent to the sexual activity and that the defence of honest but mistaken belief had no air of reality, given the appellant’s knowledge of her significant cognitive limitations and failure to take reasonable steps to ascertain capacity and consent.
The s. 11(b) delay argument and sentence appeal were also rejected.
A dissent would have ordered a new trial on the basis that necessity was not established because the complainant’s unavailability may have been temporary and the inability to cross-examine her impaired full answer and defence.
