Renee Mahoney

The accused, S.J., pleaded guilty to four counts (6, 7, 8, 9) and proceeded to trial on four others (1, 2, 3, 4) involving the complainant, M.B., with whom he was in an intimate partner relationship.

The trial focused on allegations of sexual assault (Count 1), assault causing bodily harm (Count 2), mischief (Count 3) related to a September 2015 incident, and a later assault (Count 4) from May 2021.

Applying the R. v. W.(D.) framework, the court found M.B.'s evidence regarding the 2015 incident credible and reliable, while rejecting S.J.'s testimony as inconsistent and unbelievable.

Consequently, S.J. was found guilty of sexual assault and assault causing bodily harm for the 2015 incident.

For the 2021 allegations, M.B.'s evidence was deemed credible but unreliable due to internal inconsistencies and implausibility, leading to S.J.'s acquittal on the mischief and May 2021 assault charges.

This endorsement addresses the adjournment of three criminal trials (R. v. Q., R. v. D.O., R. v. J.N.) scheduled to commence in the Superior Court of Justice in Milton.

The trials were adjourned due to recent findings of contamination and ongoing assessment of the courthouse building, rendering it unsafe for in-person proceedings.

The court emphasized that the health and safety of all participants, including potential jurors, litigants, lawyers, accused persons, and witnesses, was the overarching priority, necessitating the extraordinary step of adjourning matters until further notice.

This motion concerned an application by the accused, Robert Scott Musson, under section 123 of the Youth Criminal Justice Act (YCJA) for access to and production of two sets of youth records: one related to an alleged "stranger assault" in 1997 and another related to a break and enter at Dr. Musson's home in 1998, involving the complainant A.L. and witness L.W. The court dismissed access to the 1997 "stranger assault" records, finding that a police caution constituted an extrajudicial measure under the YCJA, making section 119(4) applicable and precluding access.

For the 1998 break and enter records, the court found that Dr. Musson met the test under section 123 of the YCJA for access, demonstrating a valid and substantial interest and necessity in the interest of justice.

However, due to the nature of the allegations against Dr. Musson (sexual offences), the court ruled that the Mills regime applied, requiring a separate application under section 278.3 of the Criminal Code for actual production of these records, which were ordered to remain under seal.

This decision addresses a s. 11(b) Charter application to stay impaired driving charges due to unreasonable delay.

The court found 566 days (18.6 months) of net delay, exceeding the 18-month presumptive ceiling for provincial court trials established in R. v. Jordan.

The delay was attributed to issues with primary disclosure (cells video) and systemic court unavailability, including the closure of a courthouse due to structural issues, which was deemed not an exceptional circumstance.

The court rejected the Crown's argument that the accused's refusal to waive his right to an in-person trial constituted defence delay, finding that a remote trial was not functionally feasible.

Consequently, the charges were stayed.

The Crown applied under section 714.2(1) of the Criminal Code for an order permitting the complainant in a sexual assault case to testify by videoconference from Florida, where she was residing with her mother due to an unforeseen health crisis and was currently self-isolating after testing positive for COVID-19.

The respondent opposed the application, arguing that videoconference testimony would violate principles of fundamental justice, including the right to face one's accuser and concerns about the solemnity of proceedings.

The court granted the Crown's application, finding that the respondent failed to demonstrate meaningful prejudice to his fair trial interests and that videoconference evidence is a capable substitute for in-person testimony under the Criminal Code framework.