J. Virk

The Crown brought a pretrial application under section 714.2 of the Criminal Code to allow the complainant to testify remotely from Mexico, or alternatively, for an adjournment of the trial.

The complainant, who was unvaccinated against COVID-19, travelled to Mexico shortly before the scheduled in-person jury trial and refused to return due to fears of being forced into vaccination.

The court dismissed the remote testimony application, finding it would be contrary to the principles of fundamental justice given the complainant's voluntary travel, the poor quality of the internet connection, and non-compliance with notice requirements.

However, the court granted the Crown's alternative request for an adjournment to allow the serious sexual allegations to be tried on their merits.

The appellant appealed his conviction for 'Over 80', arguing the trial judge erred by not excluding breathalyzer results under s. 24(2) of the Charter after finding a s. 8 breach and that samples were not taken 'as soon as practicable'.

The Summary Conviction Appeal Court held that failing to take breath samples as soon as practicable deprives the Crown of the statutory presumption of identity but does not automatically violate s. 8 of the Charter.

The court upheld the trial judge's s. 24(2) analysis, finding the impact of the breach was minimal and society had an interest in adjudication on the merits.

The appeal was dismissed.