Lee V. Seshagiri

The Crown appealed a decision of the Nova Scotia Court of Appeal which had dismissed the Crown's appeal against an acquittal entered by a judge of the Nova Scotia Provincial Court.

The case concerned charges of sexual exploitation of a person under 18 years of age contrary to s. 153(1)(a) of the Criminal Code.

The Court was divided: three justices would allow the appeal for the reasons of Justice Derrick of the Nova Scotia Court of Appeal, while two justices would dismiss the appeal for the reasons of Chief Justice Wood of that court.

By majority, the appeal was allowed and a new trial ordered on the two relevant counts in the information.

The appellant was convicted of second degree murder and unlawful possession of a firearm following a jury trial in which the Crown called a former co-accused as a witness.

The trial judge issued a Vetrovec warning cautioning the jury about the witness's credibility, despite the witness giving exculpatory testimony.

The majority of the Court of Appeal found that the Vetrovec warning was given in error but applied the curative proviso, holding the error harmless.

The dissenting judge found application of the curative proviso inappropriate.

The Supreme Court unanimously allowed the appeal, adopting the reasoning of the dissenting judge, and ordered a new trial.