Client charged with sexual assault offences in relation to 6 year old girl. Client was a boarder in the home of the girl’s family. An election was made to have a trial in the Court of Queen’s Bench with a preliminary inquiry being held in provincial court to test the evidence of the Crown witnesses. Witnesses included the complainant, her mother and two adult sisters. The issue was the credibility of the child’s accusation.
At the preliminary inquiry, the Crown sought to have the complainant’s video-taped statement to the police entered as evidence pursuant to s. 540(7) of the Criminal Code, without calling the complainant. The Crown further argued that the complainant ought not be ordered to appear for cross examination pursuant to a defence application under s. 540(9) of the Criminal Code. The judge held that the video-taped statement could be entered into evidence pursuant to s. 540(7). The judge also ordered, however, that the complainant be required to attend for cross examination. He noted, that although a preliminary inquiry judge has a limited ability to weigh issues of credibility, the preliminary inquiry has not lost its ancillary role of testing of the evidence and it retains a discovery function. This includes the ability of defence counsel to explore the credibility of the witnesses through cross examination. In this case, examination and cross-examination of all witnesses revealed significant issues with respect to the credibility of the allegation. Prior to the matter being set for trial, the charges were stayed by the Crown on the basis that there was no reasonable likelihood of conviction.