Rishabh Nigam

The accused, a registered physiotherapist, was charged with one count of sexual assault during a physiotherapy treatment session.

The complainant alleged non-consensual touching of her breasts and lips.

The accused denied the allegations, asserting all touching was therapeutic and consented to.

The court assessed the credibility and reliability of both the complainant and the accused.

The complainant's testimony was found to have significant reliability issues and inconsistencies, including denials of complaining about shoulder pain despite evidence, and contradictory accounts of events.

In contrast, the accused's testimony was deemed credible and consistent.

The court found reasonable doubt regarding the mens rea for sexual assault and whether the touching occurred in circumstances of a sexual nature.

Consequently, the accused was acquitted.

This decision concerns an application by the accused, Kavit Shah, a registered physiotherapist charged with sexual assault, to admit the complainant's physiotherapy records at trial under sections 278.92-278.94 of the Criminal Code.

The Crown and Complainant opposed the application, primarily arguing a lack of proper evidentiary foundation for authenticity.

The court found that a hearsay affidavit from defence counsel's associate, along with the records obtained through police disclosure, provided a sufficient basis for the pre-trial admissibility assessment.

The court determined the records were relevant to the complainant's credibility and reliability, and that their significant probative value was not substantially outweighed by the danger of prejudice to the administration of justice, given the limited privacy interest in the records and the accused's right to make full answer and defence.

The application was granted, allowing the defence to use the records for cross-examination and to establish prior inconsistent statements, with authentication to be addressed at trial if the defence seeks to prove their contents for truth.

The defendant, Alan Smith, was charged with impaired driving, driving with over 80 mg of alcohol, and dangerous operation of a motor vehicle following a single-vehicle collision.

The defence challenged identity, impairment, and dangerous operation.

The court found the Crown proved identity beyond a reasonable doubt, impairment based on observed indicia and the collision, and dangerous operation due to erratic, high-speed lane changes in precipitation leading to a severe collision.

Mr. Smith was found guilty of all three counts, with the impaired driving charge stayed under the Kienapple principle.

The defendant was charged with impaired operation and operating a vehicle with a blood-alcohol concentration above the legal limit.

He sought to exclude evidence due to alleged Charter breaches (ss. 7, 8, 10(b)) related to muted police body-worn cameras and delays in approved screening device (ASD) and approved instrument demands.

The court found no s. 7 breach, as there was no prejudice to the right to make full answer and defence.

It also found no s. 8 breach regarding the immediacy of the demands.

While the Crown conceded a s. 8 breach regarding ASD availability (due to R. v. Breault), the court found the breach minor and admitted the evidence under s. 24(2) of the Charter, citing good faith police conduct and minimal impact on the accused's rights.

The defendant was found guilty of operating with a blood-alcohol concentration above the legal limit but not guilty of impaired operation.