Nikolas Lust

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.

The court considered whether a video-recorded statement by the complainant S.R., describing alleged sexual offences by A.G., was admissible under section 715.1 of the Criminal Code.

The defence argued the statement was not taken within a reasonable time of the alleged offences, as required by the section.

The court found that the delay in disclosure was adequately explained by the complainant’s circumstances and trauma, and that her memory was not so impaired as to undermine reliability.

The court also held that section 715.1 is not limited to child witnesses at the time of testimony, but applies if the complainant was under 18 at the time of the alleged offence.

The application to admit the statement was granted.

Devin Langlois was charged with sexual assault and sexual interference involving a 15-year-old complainant (C.S.).

The court found C.S.'s testimony regarding consent unreliable due to inconsistencies, leading to reasonable doubt on the issue of actual consent.

However, the court proceeded to analyze the defence of mistake of age under s. 150.1(4) of the Criminal Code.

Despite the accused's claim of believing C.S. was 18, the court identified numerous "red flags" (e.g., lack of age/schooling information, C.S.'s immaturity, no driver's license) that should have prompted further inquiry.

The court concluded that the accused failed to take all reasonable steps to ascertain C.S.'s age and was therefore reckless or wilfully blind regarding her underage status.

Consequently, the defence of mistake of age was negated, and Mr. Langlois was found guilty of both sexual assault and sexual interference.

The accused, Bevin Kerry Degale, faced charges of aggravated sexual assault and assault.

The assault charge was dismissed on a non-suit motion.

The aggravated sexual assault charge proceeded based on circumstantial evidence, as the complainant did not testify.

The court found the actus reus of aggravated sexual assault (sexual touching, serious bodily harm, and lack of consent) proven beyond a reasonable doubt, relying on res gestae hearsay statements and forensic evidence.

However, the mens rea (knowledge of lack of consent or intent to cause bodily harm) was not proven due to the absence of direct evidence regarding the interaction.

Consequently, the charge of aggravated sexual assault was dismissed.

This ruling addresses the admissibility of five hearsay statements made by the complainant in a criminal trial for aggravated sexual assault and assault.

The court conducted a voir dire to determine if the statements were admissible under the common law res gestae exception or the principled exception to the hearsay rule.

The judge admitted two statements under res gestae, and partially admitted a third under the principled exception (a gesture and statement about location, but not the assertion of assault).

The remaining two statements were deemed inadmissible due to a lack of substantive reliability or because the police notes did not constitute a "statement" of the declarant.