Ontario Criminal


Assault

COMMON ASSAULT
Error to suggest voluntary absence could defeat public interest in domestic abuse case

Crown appealed acquittal of accused for domestic assault on grounds that trial judge erred in failing to act judicially in refusing to grant material witness application and in refusing to adjourn trial. Accused was charged with assaulting his wife who refused to show up for trial and trial judge expressed concerns of delay. Appeal allowed, new trial ordered. It was error to suggest that voluntary absence could defeat public interest in trial on merits in domestic abuse case as it would send wrong message that domestic assaults were not as serious as others and failure of reluctant witness to attend would result in acquittal. Trial judge’s concerns regarding s. 11(b) issues were misplaced as whether failure of Crown witness to attend contributed to systemic or Crown delay would have to be litigated. There was no suggestion Crown was not diligent in attempting to have witness attend and since there was no evidence witness had left jurisdiction or was unable to attend on later date, only issue was whether she was material which was obvious in this case.

R. v. Khasria (Nov. 4, 2013, Ont. S.C.J., Durno J., File No. Milton 199/2012) 110 W.C.B. (2d) 136.

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