Is a failure to provide a directory of all witnesses in a sexual assault case a valid ground for setting aside the conviction and ordering a new trial?

In Re Boylan v. The Queen (1979), 1979 CanLII 2333 (SK CA), 46 C.C.C.(2d) 415, this court found that the word “shall” used in s. 468(1) must be construed as making the provision mandatory. Boylan involved a preliminary hearing and not a trial under Part XVI as does the present case. The difference in the proceeding, however, is not a sufficient reason to construe the word “shall” as directory. That difference does not alter in any material respect the reasoning used to arrive at the mandatory construction placed upon the word “shall”. Hence, the consequence of a failure to cause a record of the evidence of each witness at trial under Part XVI to be taken in accordance with s. 468(1)(b) is a valid ground for setting aside the conviction and ordering a new trial.