Shanna Ferrone

The accused applied for a stay of proceedings during a jury trial for sexual assault with a weapon and uttering threats, arguing that the police lost key seized items including the complainant’s nightgown and the accused’s underwear which could have contained potentially exculpatory forensic evidence.

The defence alleged the loss breached the accused’s s. 7 Charter rights by preventing full answer and defence.

The court applied the framework from R. v. La and R. v. Bero concerning the Crown’s duty to preserve relevant evidence and whether its loss resulted from unacceptable negligence.

The judge found the evidence was misplaced after many years but not due to unacceptable police negligence, noting the items were properly logged and secured and that much of the delay was attributable to the accused fleeing the jurisdiction for extended periods.

The court further held that the defence failed to demonstrate actual prejudice or that the missing evidence would materially assist the defence.

The application for a stay of proceedings was dismissed.

During a criminal jury trial for sexual assault with a weapon and uttering threats, the defence applied for a mistrial after a police officer testified that seized items and a sexual assault kit were not sent to the Centre for Forensic Sciences because investigators believed sexual intercourse had occurred and the issue was consent.

The defence argued this constituted undisclosed information and prejudicial hearsay undermining the defence theory that no sexual intercourse occurred and that the Crown lacked corroborative forensic evidence.

The court held that disclosure obligations had not been breached and that the defence assumption about forensic testing did not arise from the disclosure provided.

While the officer’s explanation constituted inadmissible hearsay, the prejudice could be cured by a limiting instruction to the jury explaining that the evidence could not be used to establish that sexual intercourse occurred or that police had a reasonable basis for such a belief.

The court concluded there was no real danger of a miscarriage of justice requiring a mistrial.

In a pre‑trial evidentiary application during a jury trial for sexual assault with a weapon and uttering a death threat, the accused sought to exclude alleged post‑offence conduct.

The Crown proposed to introduce evidence that the accused failed to attend a preliminary hearing and was later re‑arrested when returning to Canada.

The court held that the proposed evidence was not relevant to the issues at trial because there was no evidence establishing when or why the accused left the country or failed to attend court.

The judge further concluded that the evidence carried a high risk of prejudicial reasoning by inviting speculation that the accused fled due to guilt.

Even if minimally relevant, the prejudicial effect substantially outweighed any probative value and the evidence was excluded.

In a pre-trial evidentiary motion during a criminal jury proceeding, the Crown sought to admit recordings of two 911 calls made shortly after an alleged sexual assault.

The defence argued the calls were not contemporaneous with the alleged offence and therefore could not qualify as spontaneous utterances, and further argued the evidence was unnecessary because the complainant could testify directly.

The court held that the complainant remained under the stress of the startling event when the calls were made, as she had fled the residence, was being pursued, and was crying and distraught.

The statements were therefore admissible under the spontaneous utterance exception to the hearsay rule.

The court also held that the calls would be admissible under the principled approach due to reliability and necessity.

The Crown sought a ruling that a videotaped police statement made by the accused was voluntary and admissible for use in cross-examination if the accused testified.

The defence argued that the Crown failed to prove voluntariness beyond a reasonable doubt because it did not call all police officers who might have had contact with the accused during the approximately ten-hour period between arrest and the interview.

The court held that the Crown is not required to call every officer who might have had incidental contact with an accused and that speculation about possible improper contact is insufficient to raise a reasonable doubt.

The evidence showed the accused understood his rights, consulted counsel, and appeared alert and cooperative during the interview.

The court found no evidence of threats, inducements, or circumstances that would overbear the accused’s will.

The Crown brought a pre-trial application under s. 714.1 of the Criminal Code to allow the complainant to testify by video link.

The charges of sexual assault and uttering death threats dated back to 1996.

The accused had caused approximately 16 years of delay by fleeing the country and repeatedly changing counsel.

The complainant, who had attended previous preliminary hearings and trial dates, refused to attend in person again.

The court granted the application, finding that the exceptional history of delay caused by the accused justified permitting the video link testimony to ensure the trial could proceed on its merits.