F. Fedorsen

The Crown appealed a stay of proceedings granted by the trial judge under s. 11(b) of the Charter for unreasonable delay.

The respondent conceded that the trial judge committed a palpable and overriding error by misapprehending the evidence regarding the attribution of delay.

The summary conviction appeal court found that the trial judge erred in failing to attribute the delay from a contested adjournment to the defence, as the respondent had changed counsel days before trial and requested the adjournment while the Crown was ready to proceed.

The appeal was allowed and the matter remitted for a new trial.

The accused, charged with sexual assault, brought an application under s. 278.93(1) of the Criminal Code to adduce evidence of prior sexual activity and communications with the complainant.

The Crown opposed, arguing the evidence engaged the twin myths under s. 276.

The court granted the application, finding that cross-examining the complainant on the prior incidents was necessary for the accused to make full answer and defence by challenging her assertion that they were merely friends, and that the evidence did not engage the twin myths if accompanied by proper jury instructions.