Igor Vilkhov

The Crown brought an application under s. 486.2(2) of the Criminal Code to permit the complainant in a sexual assault and sexual interference case to testify by closed-circuit television (CCTV) from outside the courtroom.

The complainant, who was nine years old at the time of the alleged offences and is now 23, expressed fear and nervousness about testifying in court and seeing the respondent (her stepfather).

The court granted the application, finding that allowing remote testimony would facilitate a full and candid account from the witness and was in the interest of the proper administration of justice, noting the lowered threshold for such orders following the 2015 amendment to the Criminal Code.

The applicant, charged with sexual assault, sought a stay of proceedings on the grounds of unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The total delay from the swearing of the Information to the anticipated end of trial was 18.5 months.

After subtracting 17 days of defence delay, the net delay was 17.85 months, just shy of the 18-month presumptive ceiling for the Ontario Court of Justice.

The court found that significant disclosure delays, particularly concerning the complainant's video-taped statement, were not attributable to the defence.

The applicant demonstrated sustained efforts to expedite proceedings once crucial disclosure was received.

The court concluded that the trial had been unreasonably delayed and granted a stay of the charge.

M.Z., a registered physiotherapist, was charged with sexually assaulting A.S., an office administrator, by allegedly touching her bare breasts during a neck massage.

M.Z. denied the sexual assault, claiming the interactions were mutual and consensual massages.

The court conducted a credibility assessment of both parties, applying the R. v. W.(D.) framework.

The court found M.Z.'s testimony to be consistent and without obvious flaws.

Conversely, A.S.'s testimony contained significant omissions from her initial police statement, particularly regarding prior disclosure to her boyfriend and the instruction to unbutton her shirt, and her claim of needing to "Google" whether nipple touching was wrong strained credulity.

The court concluded that while M.Z.'s conduct was socially inappropriate and reflected an error in judgment, the Crown failed to prove the sexual assault beyond a reasonable doubt.

The charge was dismissed.