John Recoskie

Richard Trudeau pleaded guilty to sexual assault.

The Crown sought the maximum jail sentence, while the defence argued for a Conditional Sentence Order (CSO) due to the accused's Indigenous background and cognitive disability.

The court, applying Gladue principles and considering the victim's impact statement and the accused's personal circumstances, including his sincere remorse and commitment to sobriety, determined that an 18-month CSO followed by 24 months probation was appropriate.

The judge emphasized that incarceration would disproportionately harm the Indigenous offender and impede rehabilitation, aligning with the remedial purpose of s. 718.2(e) of the Criminal Code.

This decision addresses a Stage 2 application under sections 276 and 278.93 of the Criminal Code regarding the admissibility of a complainant's prior sexual activity in a sexual assault and forcible confinement trial.

The accused sought to adduce evidence of a prior sexual encounter ("October incident") and the complainant's "comfort" level with the accused.

The Crown also sought to adduce evidence about a "FaceTime interlude" where the accused allegedly threatened to expose the complainant.

The court granted the Crown's application for the FaceTime interlude, allowing general contours but prohibiting details.

The accused's application regarding the "October incident" and "comfort" was dismissed, finding its probative value slight and substantially outweighed by the danger of prejudice and the risk of encouraging "twin myth" reasoning, which links prior sexual activity to consent or credibility.

The applicant sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial date exceeded the 30-month Jordan ceiling for Superior Court matters.

The Crown argued that the delay was due to exceptional circumstances, including the COVID-19 pandemic and the co-accused's need for new counsel, which necessitated an adjournment.

The applicant had opposed the adjournment and offered to proceed if severed from the co-accused.

The court found that the net delay exceeded the ceiling and that the Crown failed to rebut the presumption of unreasonableness.

While acknowledging the impact of COVID-19 and the importance of joint prosecutions, the court determined that the Crown had a duty to sever the applicant's trial when the joint prosecution compromised his s. 11(b) rights and unreasonably extended the prejudice he was suffering.

The Crown's failure to sever was deemed a failure to take reasonable steps to avoid the delay.

Consequently, the court found a breach of the applicant's s. 11(b) right and ordered a stay of proceedings.

The Crown applied for an adjournment of a bail hearing pursuant to section 516(1) of the Criminal Code to permit further investigation, including interviews with the accused's child and a Children's Aid worker, and to conduct other police investigations.

The accused opposed the adjournment and was ready to proceed with the bail hearing.

The Justice of the Peace denied the Crown's application, finding that the reasons advanced—further investigation and investigation of a potential new charge—were insufficient to pre-empt the accused's constitutional right to a prompt determination of bail.

The bail hearing proceeded on the scheduled date.