Z. Kay

The defendant applied for a mistrial in his sexual assault trial, arguing that the complainant gave materially different evidence in a subsequent trial involving his brothers.

The defence alleged that the complainant's testimony regarding her 1991 statements to the Children's Aid Society and police was inconsistent.

The court dismissed the application, finding that the essence of the complainant's evidence was the same in both trials.

Any minor differences were insignificant, would not have impacted the court's assessment of her credibility, and did not render the trial unfair.

The accused, charged with historical sexual assault of his 12-year-old cousin in 1991, brought a lost evidence application seeking a stay of proceedings.

The defence argued that the failure of the police to preserve a tape recording of the complainant's 1991 interview, tissue samples from her abortion, and other records constituted unacceptable negligence and breached his s. 7 Charter rights.

The court dismissed the application, finding no unacceptable negligence because the police had closed the file in 1991 at the urging of the accused's family and had no reason to believe the evidence would be needed.

The court also found no actual prejudice to the accused's fair trial rights, as the missing evidence would not have assisted his defence given the admissions made at the time and the availability of detailed contemporaneous notes.

The accused was charged with sexual assault and sexual interference relating to an incident in 1991 when the complainant was 12 years old and the accused was 21.

The assault resulted in the complainant becoming pregnant and subsequently having an abortion.

The matter was investigated by police and CAS at the time, but no charges were laid.

The complainant came forward again in 2022.

The trial judge applied the W.(D.) framework, rejecting the accused's blanket denials as not credible.

Despite the passage of 33 years, missing police and CAS records, the destruction of hospital tissue samples, and the complainant's conflated memory regarding the location of the abortion, the court found the complainant's core testimony identifying the accused as the perpetrator to be credible and reliable.

The accused was found guilty of sexual interference, with the sexual assault count stayed under the Kienapple principle.

The defendant brought a motion seeking the trial judge's recusal based on a reasonable apprehension of bias.

The motion arose after the trial judge had completed her reasons for judgment convicting the defendant of historical sexual assault, but before those reasons were released, when the defence sought to bring a lost evidence application.

The defence alleged that six events, including the trial judge's refusal to release her preliminary reasons and her questioning of defence counsel during an adjournment request, demonstrated bias.

The trial judge dismissed the motion, finding that her conduct was consistent with her gatekeeping function and that a reasonable, informed observer would not conclude she was biased or incapable of deciding the remaining applications impartially.