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Accused acquitted of aggravated assault as eyewitness identification evidence was found unreliable.
The accused was charged with three counts of aggravated assault following a stabbing incident in Bellevue Square Park.
The sole issue at trial was identity.
The Crown relied on eyewitness identification evidence from the victims and a bystander, including photo line-up identifications made nine months after the incident.
The court found the identification evidence unreliable due to the chaotic circumstances of the attack, inconsistencies in the witnesses' accounts, and the risk that their memories were tainted by police press releases and conversations with others.
The Crown failed to prove identity beyond a reasonable doubt, and the accused was acquitted.
The court dismissed an application to stay proceedings or exclude evidence despite finding a s. 10(b) Charter breach.
The accused, Kenneth Hill, brought an application to stay proceedings or exclude evidence, alleging multiple Charter breaches by police during his arrest and detention for random assaults.
The court found a violation of the accused's s. 10(b) right to counsel, specifically regarding the police's premature interruption of his call to duty counsel and failure to ensure he received legal advice, particularly given his apparent mental health issues.
However, the court found no violations of s. 8 (unreasonable search, including strip search and state of undress) or s. 10(a) (right to be informed of reasons for arrest).
Applying the Grant factors, the court determined that the s. 10(b) breach was at the low end of the spectrum in terms of impact on the accused's Charter interests, and that admitting the evidence (identification photos/videos taken prior to the breach) would not bring the administration of justice into disrepute.
The application for a stay of proceedings or exclusion of evidence was dismissed.
The court granted the accused's application to introduce the complainant's electronic messages for impeachment purposes in a sexual assault trial.
The applicant, J.L., sought leave to introduce electronic records and cross-examine the complainant, B.M., regarding their contents, as well as to testify about them, pursuant to section 278.94 of the Criminal Code.
The records included Facebook messages from November 2015 suggesting prior sexual activity, messages from April 2016 discussing sleeping arrangements and having a flirtatious tone before the alleged assault, and messages from April 2016 (the day after the alleged assault) and later, which discussed the sexual encounter and the complainant's departure.
The Crown and complainant's counsel objected to admissibility.
The court found the November 2015 messages relevant as a specific instance of sexual activity and potentially contradictory to the complainant's police statement.
The April 2016 pre-assault messages were found relevant for impeachment value and to provide context for the complainant's decision to come to the applicant's residence.
The April 2016 post-assault messages were deemed relevant as a potential prior inconsistent statement regarding the complainant's departure.
The court applied the factors under s. 276(2) of the Criminal Code, concluding that the records were not being adduced for prohibited inferences, had probative value, were necessary for full answer and defence, and would not prejudice the administration of justice or have a chilling effect.
All three sets of communications were admitted as evidence, and the applicant was permitted to cross-examine the complainant and testify regarding them.
