Meaghan Elizabeth Cunningham

The accused was charged with sexual assault and sexual touching of a child under sixteen years of age.

The Crown's case rested primarily on the testimony of the eight-year-old complainant, who alleged that his grandfather had licked his fingers and inserted them into his anus.

The accused denied all allegations.

The trial judge assessed the credibility and reliability of both the child witness and the accused, applying the framework from R. v. W(D) and contemporary jurisprudence regarding child testimony.

The court found the child to be a credible and reliable witness and rejected the accused's denial, finding him guilty of both charges.

The accused applied under s. 591(3)(a) of the Criminal Code to sever counts relating to one complainant from a multi-count indictment involving seven complainants alleging sexual offences and attempted murder arising from nondisclosure of HIV-positive status.

The accused argued he intended to testify regarding the severed complainant’s allegations, which included disputed non-consensual conduct, but not regarding the other complainants whose sexual encounters were admitted to be consensual at the time.

The Crown opposed severance, asserting a strong factual nexus among the counts and a viable similar fact evidence application based on an alleged pattern of behaviour and extensive chat log evidence demonstrating intent.

The court held that the accused established an objectively justifiable basis for testifying on the severed counts but not the others, and that forcing a joint trial would prejudice the accused’s right to choose whether to testify.

Severance of the counts relating to the particular complainant was therefore granted in the interests of justice.