2 total
Conviction for sexual exploitation quashed and new trial ordered due to trial judge's improper reliance on section 276 evidence.
The appellant appealed his conviction for sexual exploitation, arguing the trial judge improperly relied on inadmissible evidence.
At trial, the Crown introduced evidence of the appellant's sexual relationship with the complainant after the complainant turned 18, which the trial judge ruled inadmissible under section 276 of the Criminal Code.
However, the trial judge subsequently relied on this post-majority relationship to reject the appellant's exculpatory police statement.
The Superior Court of Justice found this to be a reversible error, as the appellant was assured the evidence was inadmissible and had no opportunity to address it.
The appeal was allowed and a new trial ordered.
Preliminary inquiry testimony admitted after witness death under Criminal Code s. 715.
The Crown sought admission at trial of the complainant’s testimony from the preliminary inquiry after the complainant died before trial.
The accused argued that admission of the prior testimony would be unfair because cross‑examination at the preliminary inquiry had a different purpose and was not as extensive as it would have been at trial, raising concerns about reliability and prejudice.
The court considered s. 715(1) of the Criminal Code and the principled hearsay framework, including necessity and threshold reliability.
Finding that the complainant testified under oath at the preliminary inquiry in the presence of the accused and was subject to cross‑examination without restriction, the court concluded that the statutory requirements and reliability threshold were met.
The prior testimony was therefore admissible, with ultimate weight to be determined at trial.
