Loc Welch

The defendant was charged with sexual assault and assault offences against three adopted children.

During a two-week judge-alone trial, midway through the cross-examination of the second complainant, defence counsel sought an adjournment to bring a section 278.92 application regarding text messages between the complainant and the defendant.

The court denied the adjournment request, finding that the probative value of the text messages was minimal and did not justify the significant disruption to the proceedings.

The court emphasized that section 278.92 applications should be brought pre-trial and that midtrial applications pose substantial risks to the administration of justice, particularly regarding the wellbeing of vulnerable complainants and the waste of scarce court resources.

This sentencing decision concerns Sgt. Alex Esliger of the Canadian Armed Forces, convicted of sexual assault under s. 271 of the Criminal Code for an incident occurring during deployment in Iraq.

The court carefully considered the facts, including the nature of the assault involving forced digital penetration and attempted intercourse, the victim impact, and the offender’s background including mental and physical health issues.

The judge emphasized principles of denunciation and deterrence, referencing key Supreme Court and Court of Appeal authorities, and rejected a conditional sentence despite defence submissions.

The sentence imposed was three years’ imprisonment, a 20-year SOIRA order, and a 10-year firearms prohibition, reflecting the serious nature of the offence and its impact within a military context.

The defendant, Kyle Fisher, was charged with failing to provide a breath sample.

The trial proceeded in a blended fashion, addressing both the merits and alleged Charter breaches.

The court found the ASD demand proper and the refusal to comply established.

However, the court found a clear breach of the defendant's s. 9 Charter right against arbitrary detention due to an "overholding" period of 1 hour and 14 minutes, during which the police detained him solely to issue Highway Traffic Act tickets unrelated to the criminal investigation.

Despite the officer's good faith, this detention was deemed an unreasonable exercise of police authority.

The court determined that a stay of proceedings under s. 24(1) of the Charter was the appropriate remedy, as it was an exceptional case necessary to disassociate the justice system from the state's non-Charter compliant actions, given the lack of alternative remedies and the seriousness of the breach.