N. Flynn

The applicant sought certiorari to quash a committal order made by a preliminary inquiry judge.

The preliminary inquiry judge had admitted the complainant's written statement under s. 540(7) of the Criminal Code and denied the applicant's request to cross-examine the complainant under s. 540(9).

The Superior Court found that while the admission of the statement was an evidentiary error, it was not jurisdictional.

However, the blanket denial of cross-examination on the sole piece of evidence forming the Crown's case amounted to a breach of natural justice and a jurisdictional error.

The certiorari application was granted, and the matter was remitted for a new preliminary inquiry.

The accused was charged with two counts of sexual assault against his former partner.

The first incident involved an allegation that the accused continued anal intercourse after the complainant withdrew her consent.

The second incident involved an allegation of non-consensual digital and fist penetration.

The court found the complainant's evidence lacked credibility due to evasiveness and a motive to fabricate following the discovery of the accused's new relationship.

For the first incident, the court found the Crown failed to prove the mens rea, as the accused stopped immediately upon realizing the complainant was crying.

For the second incident, the court accepted the accused's denial.

The accused was acquitted of both charges.