Jodi Whyte

The accused was charged with sexual assault against a 93-year-old resident of a long-term care facility between October 31, 2012 and October 7, 2015.

The complainant did not testify due to advanced age and frail health.

The Crown sought to introduce hearsay statements made by the complainant to facility staff on October 5-6, 2015 and a videotaped statement to police on October 7, 2015.

The trial judge conducted a blended voir dire/trial to determine the admissibility of these out-of-court statements under the reliability criterion established in R. v. Khelawon and R. v. Youvarajah.

The court found that none of the statements met the threshold reliability test due to significant concerns about the complainant's mental capacity, confusion, and lack of adequate substitute for cross-examination.

The Crown brought an application to admit similar fact evidence in a jury trial involving multiple sexual offence charges against a foster father relating to three complainants who had lived in the accused’s foster home.

The defence argued that the evidence of one complainant was so unreliable as to be incapable of belief and therefore should not be considered as similar fact evidence.

The court reviewed the governing principles from the Supreme Court of Canada regarding the admissibility of similar fact evidence and assessed the probative value of the evidence in relation to its prejudicial effect.

Given the pattern of conduct alleged within the foster home context and the similarities in the surrounding circumstances, the court concluded that the evidence was reasonably capable of belief and possessed significant probative value.

The probative value outweighed the potential prejudice and the evidence was admitted with appropriate jury instructions.

The accused brought a defence motion seeking severance of charges in a criminal prosecution.

The court considered the request and determined that severance was not warranted in the circumstances.

The motion was denied, with the court indicating that reasons would follow.