By Shurtz, Delon on December 11, 2019.
A Calgary lawyer whose application to adjourn a sexual assault trial was rejected last week, got his wish this week.
Patrick Fagan had asked a Court of Queen’s Bench judge Friday to adjourn the one-week trial so he could prepare for a last-minute decision by the Crown to call similar fact evidence. Similar fact evidence establishes the conditions under which factual evidence of similar misconduct of an accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.
Although Justice D.K. Miller rejected the adjournment application – the trial was to begin Monday – he deferred a re-election application by defence to a hearing Monday in front of the trial judge, Madam Justice Johnna Kubik. An hour before the trial was to begin, Kubik allowed Fagan to re-elect from trial with a QB judge alone, to QB judge and jury, and adjourned the matter to Jan. 13 to reschedule the trial.
The 29-year-old accused, who was a respite-care worker for people with developmental disabilities, was originally charged with six counts of sexual assault, six counts of sexual interference, two counts of sexual exploitation and one count of invitation to sexual touching. However, he was ordered following a preliminary hearing in May 2018 to stand trial on four counts of sexual assault, three counts of sexual interference, one count of sexual exploitation and one count of invitation to sexual touching.
The accused, who can’t be identified under a court-ordered publication ban, was charged early in 2017 in relation to one young person, and he had pleaded not guilty to that charge and elected to be tried by judge alone. He was later charged in relation to three additional young people.
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