Jennifer Burke

The accused pleaded guilty to multiple sexual offences involving his biological daughter, including incest and sexual activity beginning when the complainant was under 14 years old and continuing intermittently over many years.

The offences involved repeated vaginal, oral, and anal intercourse, an abuse of parental trust, and resulted in a pregnancy that ended in an abortion.

The complainant had intellectual limitations and remained vulnerable throughout the prolonged abuse.

The court emphasized denunciation and deterrence as primary sentencing objectives, finding rehabilitation of limited relevance given the offender’s age and lack of remorse.

A penitentiary sentence of eight years was imposed along with several ancillary orders.

The appellant appealed a conviction for theft under $5,000 arising from the alleged failure to deposit restaurant proceeds at a bank night deposit.

The trial judge relied heavily on testimony from witnesses who had viewed surveillance video that was later destroyed and reported that the accused did not appear at the deposit chute.

On appeal, the court held that although secondary evidence of the lost recording could be admissible, the trial judge misapprehended central aspects of the evidence, including the surveillance camera’s limited capture intervals and the assumptions underlying the Crown’s theory.

The court further found concerns regarding the probative value and prejudice of the secondary evidence and issues related to the burden of proof under the W.(D.) framework.

The cumulative effect of these errors rendered the trial unfair.