COURT FILE NO.: CR-56/19
DATE: 2022 01 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.S.
Ms. M. Ward, for the Crown
Mr. A. Edgar, for Mr. L.S.
HEARD: January 13, 2022
REASONS FOR DECISION – DEFENCE ADJOURNMENT APPLICATION
cONLAN j.
I. Introduction
The Charges
[1] Mr. L.S. stands charged with sexual assault and sexual interference under sections 271 and 151, respectively, of the Criminal Code. The alleged incident took place in Oakville, Ontario in early September 2017.
The Trial
[2] The trial, judge-alone, is ongoing. The Crown’s case, subject to reply, is in. The defence case is nearing completion. The accused has not and is not expected to testify.
The Former Application
[3] On 28 October and 30 November 2021, a voir dire was held to determine the admissibility of proposed defence expert evidence. The only witness who testified on the voir dire was the proposed expert, Dr. Calvin Young. The Crown opposed the admission of Dr. Young’s evidence.
[4] In a decision dated December 1, 2021, R. v. L.S., 2021 ONSC 7916, this Court dismissed the application brought by the defence and ruled that Dr. Young’s evidence was not admissible at trial. There were two independent bases for the decision – (i) a lack of impartiality on the part of the proposed expert witness, and (ii) serious hearsay concerns about the proposed expert evidence.
The Current Application
[5] In response to this Court’s above-mentioned ruling, the defence sought an adjournment of the trial until March or April 2022 in order to retain another expert witness, Ms. Brandie Stevenson, registered with the College of Psychologists of Ontario, whose extensive credentials and experience have been filed with the Court. The Crown opposed the adjournment application.
II. Decision
[6] This Court, after hearing submissions by both sides, granted the adjournment application. The trial office has already scheduled a date for the voir dire to determine the admissibility of Ms. Stevenson’s anticipated evidence.
[7] My reason for that decision is that, despite the able arguments made by Ms. Ward for the Crown, I think that it would be unreasonably presumptive to say at this stage that Ms. Stevenson’s evidence will necessarily suffer from the same serious hearsay concerns that plagued the evidence of Dr. Young. It would be more prudent, in my opinion, to reserve that determination until after a review of Dr. Stevenson’s report and after hearing the evidence and the submissions delivered at the voir dire.
[8] It is reasonably possible that Dr. Stevenson could offer evidence about the accused’s cognitive functioning that is not at all dependent on things told to her by the accused and/or his mother (who are not witnesses at trial), particularly about what happened on the alleged offence date, which could leave this Court with a reasonable doubt on the mens rea component of the offences. Put another way, Dr. Stevenson’s evidence could be relevant, albeit indirectly, to the issue of whether L.S. took reasonable steps to ascertain the age of the complainant.
[9] That is why I elected to grant the adjournment application. It is undoubtedly a conservative approach that this Court has taken, but I am satisfied that it is a reasonable one. There will not be much delay between now and the date of the voir dire. This Court will endeavour to bring the trial to a conclusion as soon as possible, subject to any reply evidence that the Crown may choose to present.
C.J. Conlan
Electronic signature of Conlan J.
Released: January 18, 2022
COURT FILE NO.: CR-56/19
DATE: 2022 01 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.S.
REASONS FOR decision - defence adjourment application
Conlan J.
Released: January 18, 2022