Kellie Hutchinson

During a trial for sexual offences against a minor, the Crown objected to the defence's anticipated cross-examination of the complainant's father, arguing the defence failed to put its theories of fabrication to the complainant during his cross-examination, violating the rule in Browne v. Dunn.

The defence conceded the violation but argued the complainant should be recalled to testify.

The court held that recalling the vulnerable 14-year-old complainant would subject him to an unreasonable burden and risk giving the evidence disproportionate attention.

Instead, the court ordered that a special instruction be given to the jury regarding the defence's failure to cross-examine the complainant on these issues.

During a trial for sexual offences against a minor, the defence cross-examined a Crown witness about a previously withdrawn criminal charge for obstructing a court proceeding.

The Crown objected to this line of questioning.

The court ruled that cross-examination on the fact of a withdrawn charge is generally impermissible as it has no bearing on credibility, though the underlying facts may be explored.

The court directed a mid-trial instruction to the jury to disregard the fact of the charge, but permitted the defence to further cross-examine the witness on the underlying facts.

The accused, a foster parent, was charged with sexual assault contrary to section 271 of the Criminal Code in relation to an alleged incident involving a complainant with severe cerebral palsy who had lived in his care from age three and a half to nineteen.

The complainant testified that the accused touched her inappropriately while assisting with her personal care.

However, during cross-examination and re-examination, the complainant significantly recanted and expressed doubt about her own recollection, suggesting the contact may have been incidental to her cleaning or care routine.

The court found the complainant was a credible witness despite contradictions in her evidence, but concluded that a reasonable doubt remained regarding the allegations.

The charge was dismissed.