Timothy E. Breen

The appellant appealed his sexual assault conviction, arguing the trial judge erred by excluding evidence under section 276 of the Criminal Code that the complainant engaged in consensual sex with another man shortly after the alleged assault.

The Court of Appeal found that the Crown's cross-examination and closing address presented a distorted narrative regarding the complainant's emotional state and loyalty to her boyfriend, making the excluded evidence highly probative to the defence.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellants were convicted of first degree murder and conspiracy to commit murder.

The Crown's case relied heavily on the testimony of two accomplices who were granted immunity and witness protection.

The trial judge warned the jury to be cautious in accepting their testimony and that it would be unsafe to rely on their evidence alone, but instructed that they could rely on it if convinced beyond a reasonable doubt that it was true.

The Supreme Court of Canada dismissed the appeals, holding that the trial judge's Vetrovec warning was thorough and complete, and properly alerted the jury to the dangers of accepting the accomplices' testimony without corroborating evidence.

The accused, a retirement home manager, was charged with assaulting several elderly residents.

By the time of trial, four complainants had died and one was incompetent to testify.

The trial judge admitted videotaped statements to the police from two deceased complainants under the principled exception to the hearsay rule, relying heavily on the striking similarities between the statements, and convicted the accused.

The Court of Appeal excluded the statements and acquitted the accused.

The Supreme Court of Canada dismissed the Crown's appeal, holding that the hearsay statements were inadmissible.

The Court clarified the principled approach to hearsay, ruling that trial judges may consider corroborative or conflicting evidence when assessing threshold reliability, modifying its previous ruling in R. v. Starr.

However, on the facts, the deceased complainant's statement lacked sufficient indicia of reliability to overcome the dangers of admitting untested hearsay.