Trial judge erred in ruling daughter’s proposed testimony not relevant

Ontario criminal | Appeal

Trial judge erred in ruling daughter’s proposed testimony not relevant
Accused appealed his conviction for criminal harassment. Accused submitted that trial judge was in error not to re-open evidence and allow proposed evidence from complainant’s daughter that went to issue of whether complainant felt threatened. Charges arose amidst highly charged domestic split up during which complainant had been convicted of assaulting accused. Appeal allowed, new trial ordered. Trial judge erred in her ruling that daughter’s proposed testimony was not relevant to issue whether accused’s conduct caused complainant to fear for her safety. Error arose due to trial judge’s failure to fully consider important evidence described by complainant. Trial judge also erred in requiring accused to demonstrate due diligence as factor of test used to govern court’s exercise of discretion to reopen evidence by finding that accused should have attempted to speak to daughter after being charged because her evidence would have been foreseeable as being relevant. Trial judge was required to consider whether accused could have had honest belief that prohibition on communication was implied from terms of release. Daughter’s evidence as to her state of fear was highly relevant as complainant testified that daughter was target of accused’s conduct, and in particular, shared experience of accused’s harassment.
R. v. Orlik (Sep. 6, 2012, Ont. S.C.J., Annis J., File No. 07-16570) 103 W.C.B. (2d) 919.

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