J. Cavanagh

The Crown applied to admit three out-of-court statements made by three witnesses under the past recollection recorded exception to the hearsay rule during a trial for first-degree murder.

The statements included a police interview report and two sets of medical notes.

The court applied the four-part test for past recollection recorded, assessing reliability, timeliness, absence of memory, and present voucher for accuracy.

The court admitted the police statement with redactions and one set of medical notes in full, but excluded the psychiatric consult note due to reliability concerns regarding the source of the recorded information.

The Crown brought an application under s. 714.1 of the Criminal Code to allow six witnesses to testify remotely at a first-degree murder trial.

The witnesses included one civilian and five medical professionals, two of whom were proposed expert witnesses.

The court granted the application for the civilian witness due to her documented health issues and panic attacks related to traveling.

However, the court dismissed the application for the medical professionals, finding that the presumptive rule of in-person testimony should not be displaced merely for the convenience of busy professionals, especially given the seriousness of the charges and the high materiality of the expert evidence.

The offender was sentenced following conviction for sexual assault under s. 271 of the Criminal Code involving intercourse with an intoxicated and ill complainant who cycled in and out of consciousness and expressly told the offender to stop.

The court considered aggravating factors including the complainant’s vulnerability, the offender’s disregard of her lack of consent, resulting genital injury, and the offender’s dishonesty during the investigation and at trial.

Mitigating factors included the offender’s youth, lack of criminal record, supportive family, work history, and significant mental health concerns following conviction.

Applying the principles in ss. 718 and 718.2 of the Criminal Code and reviewing comparable sentencing authorities, the court determined that a mid‑range custodial sentence in the reformatory range was appropriate.

The offender was sentenced to two years less a day of imprisonment with credit for pre‑sentence custody, followed by three years’ probation and several ancillary orders.