Robert De Chellis

The accused had pleaded guilty to luring a child, sexual interference, and making child pornography.

The Crown intended to pursue a dangerous offender application, and a lengthy hearing had been scheduled.

Due to the presiding judge becoming unavailable because of commitments to a lengthy homicide trial, the issue arose whether the sentencing and dangerous offender proceedings should be adjourned or continued before another judge.

Interpreting s. 669.2(1) of the Criminal Code broadly, the court held that another judge may continue proceedings where the original judge is unable to proceed within a reasonable time.

Given the substantial delay that would otherwise result and the interests of justice for both the accused and the complainant, the matter was directed to proceed before another assigned judge.

The accused was charged with sexual assault of his step-daughter when she was between 12 and 15 years of age, with the alleged offences occurring over a three-and-a-half-year period ending May 31, 2007.

The complainant testified that the accused came into her bedroom on multiple occasions and touched her breasts and attempted to touch her pubic area while she was in bed.

The accused denied all allegations, claiming he only entered her room to wake her for school.

The trial involved significant credibility issues, including the complainant's initial false denial to police, inconsistencies in her evidence regarding peripheral details, and the accused's admission of making an inappropriate sexual comment to the complainant.

The court found the complainant generally credible but harbored concerns about certain aspects of her evidence.

The accused's evidence was also found troubling, particularly regarding his admission of listening to the complainant's phone call and his implausible explanation regarding an alleged accidental breast contact.

Despite finding the complainant more believable than the accused, the court determined that the Crown had not proven guilt beyond a reasonable doubt due to reliability concerns with the complainant's evidence and reasonable doubt arising from the accused's testimony.

The accused brought a motion to determine the admissibility of the complainant's personal diaries for use in cross-examination.

The defence sought to cross-examine the complainant on four issues: the absence of any mention of alleged sexual abuse in the diaries, limited references to money, the complainant's relationship with her biological father, and her relationship with her mother.

The court applied the test from R. v. Shearing and R. v. Seaboyer, balancing the probative value of the evidence against the prejudicial effect and privacy interests of the complainant.

The court permitted limited cross-examination on the absence of entries relating to sexual abuse and money, but prohibited cross-examination on entries relating to the complainant's relationship with her mother, finding that the prejudicial effect substantially outweighed any probative value.