A B.C. judge has declined to issue a stay of proceedings for a Trail man currently on trial for sexual assault against a minor.
William Trowell is facing two counts of sexual interference of a person under 14 years old, two counts of invitation to sexual touching under 14, sexual exploitation and sexual assault. court on Aug. 15.
Trowell鈥檚 defense applied for the stay of proceedings, which would end the trial without a verdict, based on what they claimed was a breach of Trowell鈥檚 rights under Section 7 of the Charter of Rights and Freedoms, thus not ensuring a fair trial.
That application was heard in voir dire on Wednesday (Oct. 11) by Judge Craig Sicotte at the Nelson Courthouse.
At issue were two missing police files and whether or not the missing files prejudice Trowell鈥檚 ability to defend himself.
The first file was from 2002, when the youth complainant鈥檚 parent brought forward concerns regarding Trowell鈥檚 relationship with their child to a Castlegar RCMP officer. It has yet to be found, more than 20 years later, defense told the court.
Crown counsel agreed that the file likely existed, due to what would be considered standard police practice. Earlier in the trial, the court heard testimony from the officer that took the statement.
The second file stems from a 2020 complaint, which is part of the investigation to which the current charges stem from.
While an investigation into that missing file was underway, the parent brought to police a chronological narrative of the circumstances leading up to them initially contacting police in 2002, stating it was made when the events were fresh in their mind, according to previous testimony used in the defense鈥檚 argument.
That timeline was photocopied at the Castlegar police detachment and returned to the parent. However, it was later discovered that only part of the document was copied and the parent had lost the original document, defense said, adding that the partial copy of the document also went missing.
Crown counsel was unable to offer any explanation as to what happened to those documents.
After defense and Crown arguments, Sicotte acknowledged that the contents of the 2002 file would have been relevant to the trial and that 鈥渢he Crown has not satisfactorily explained the loss or destruction of this relevant evidence 鈥� a breach of the accused Section 7 rights has been established.鈥�
However, he ruled that there was no evidence of actual material prejudice of defense, but rather a 鈥渢heoretical probability of some prejudice, which is not sufficient to warrant a stay of proceedings.鈥�
Sicotte advised the court he would supply a more fulsome explanation for his decision at a future date.
The trial is scheduled to resume in Castlegar on Oct. 30 at which time Crown counsel is expected to conclude its case and it will be the defense鈥檚 turn to present evidence and witnesses.
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