Wayne A. Chorney

The Crown brought an application under s. 714.2 of the Criminal Code to permit the complainant in a sexual assault trial to testify via videoconference from California.

The defence opposed the application, arguing it would be contrary to the principles of fundamental justice due to the Crown's delay in notifying the complainant and the loss of in-person cross-examination.

The court granted the application, finding that the mandatory language of s. 714.2 applied since the witness was outside Canada, and the defence's concerns did not amount to a contravention of fundamental justice.

The Crown appealed the respondent's acquittal on an 'over 80' charge.

The trial judge had excluded breath test results under s. 24(2) of the Charter, finding multiple breaches (ss. 8, 9, 10(a), 10(b)) because the police officer delayed making an ASD demand for 17 minutes to allow EMS to medically assess the respondent following a rollover collision.

The Superior Court of Justice allowed the appeal, finding the trial judge erred by assuming the respondent was detained the moment the officer formed reasonable suspicion, without considering that the respondent was in the care of EMS for most of that time.

The acquittal was set aside and a new trial ordered.