INFORMATION AND CHARGES

Information No. 2811 998 12 12088

ONTARIO COURT OF JUSTICE

Her Majesty the Queen

v.

C.A. V.K.

PUBLICATION BAN

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO s. 486.4(1) BY ORDER OF JUSTICE OF THE PEACE R. PRESTAGE, and s. 539(1) OF THE CRIMINAL CODE BY THE ORDER OF JUSTICE S.C. MACLEAN OF THE ONTARIO COURT OF JUSTICE. ANY PUBLICATION CONTRARY TO SECTION 486.4(1) and S. 539(1) IS A CRIMINAL OFFENCE.

COURT INFORMATION

Before: The Honourable Justice S.C. MacLean

Date: November 23, 2012

Location: Oshawa, Ontario

Appearances:

• D. Parke, Counsel for the Crown
• A. Risen, Counsel for C.A. V.K.

REASONS FOR RULING

Introduction

I am planning to give my decision on the s. 540(9) application orally rather than in writing, because I want to complete it today, so that Mr. V.K. and his Counsel know what is happening as well as the Crown, before we go into the next date.

I will be reviewing some of the law, but not perhaps in as much detail as I might otherwise and I will start by indicating that I had the very same issue before me in a case called C.R. [NOTE: There is a publication ban in relation to that case]. I do not have a transcript yet of my decision in that case. I believe it was decided November 8th, 2012, I gave a ruling, and on that particular occasion I had an application to cross-examine a younger witness and many of the same factors applied. So I did a very extensive analysis of the law in that case and I do not intend to review all of it here. I am going to apply the same analysis and reasoning that I used in the C.R. case, I will refer to a few of the cases right now, but I will ask that if anyone were to review this or be looking at using this decision that they have regard to my reasons in C.R. as well, which I am incorporating here and I do not wish to repeat the extensive analysis which I did in that case already.

Section 540(7) Issue

When we started the application there was a live issue about whether subsection 540(7) applied in this case and through the course of the submissions it became clear the Defence while not formally conceding the issue agreed that if cross-examination were permitted it became less significant about the 540(7) issue. So I am not going to make any ruling about 540(7). I am operating on the basis that it is conceded for the purposes of this case only in the circumstances that I am permitting the cross-examination. So it is not necessary for me to go through that analysis in this particular case. I appreciate though that the Defence is not suggesting that it would have been fully conceded otherwise, so I will leave it at that.

The Charges

Mr. V.K. is facing four counts, the first being an alleged sexual assault on H.V.K. V.K., who is his daughter. The second being touching for sexual purpose, if I can put it that way, s. 151, and involving the same complainant. The third count being an alleged sexual assault on M.D. and the fourth count being a s. 151 offence in relation to the same complainant, M.D.

Facts

Very briefly - the allegations came to light after M.D. reported that at a sleepover that Mr. V.K. had been in the same bed as herself, H.V.K. and her brother – that is M.D.'s brother, and that during the course of this, while they were in the bed that he touched her in the vaginal area. This was disclosed by M.D. to H.V.K. who at some point then disclosed that something similar had happened to her.

Legal Framework for Section 540(9) Applications

With respect to the 540(9) application, there are a variety of factors to be considered. I will mention the law in a moment, but the main concern that the Crown has here is that the young complainants in this case should not suffer the trauma of having to testify twice. That is probably the key factor here - not the only factor, but the key factor. The Defence is saying that cross-examination is necessary to permit full answer and Defence to be made and to allow for the discovery aspects of the preliminary inquiry that are normally available. So it is a balancing process in my view.

There has been a fair bit of law in different provinces about what 540(9) means. Certainly it is engaged once 540(7) is in play and the question that is raised in most of the cases, is what do the words "where appropriate" mean in that section. In other words, that a judge has the discretion to permit cross-examination where it is appropriate to permit it. The language though says that the judge shall make the order where it is appropriate. To condense down what all of the cases say, it is my view that a relevance test is imported by looking at the case law.

Different courts have views about how mandatory this is for the judge to permit it, but in the end I find that the language in that section does import a relevance test. The question that the cases look at as well is what does relevance mean. Does it simply mean relevant to the primary purpose of a preliminary inquiry, which means that it is relevant to whether there is enough evidence to send the case onto a trial? Other cases acknowledge the importance of preliminary inquiries in terms of their discovery function and apply relevance to that as well, in other words, is it relevant to a legitimate area of discovery? I accept that the latter analysis applies.

Leading Appellate Authorities

There are two leading appellate authorities, none from Ontario. Perhaps the most important in the sense of it being most recent (and it also refers to the other case), is the decision of the British Columbia Court of Appeal in Rao, 2012 BCCA 275, [2012] B.C.J. No. 1247. There were other issues that were live in the Rao decision because of jurisdictional issues and how the preliminary inquiry judge had conducted issues and questions about adjournments and things of that sorts - so those are not really relevant to our discussion here.

But there are a few passages that I just want to incorporate into these reasons that I did also refer to in my C.R. decision. The discussion of the issues in Rao commences around paragraph 58 and following. Paragraph 62 states as follows:

I agree with the preliminary inquiry judge that s. 540(7) is intended to provide the Crown with an alternative method of presenting its case at the preliminary inquiry by filing information which would not previously have been admissible, as long as the preliminary inquiry judge is satisfied that the information is credible and trustworthy. This section does not displace the Crown's right to call viva voce evidence nor does it require the Crown to proceed on paper. Rather, it gives the Crown an additional method of proceeding, taking into account such things as the nature of the case, the apparent reliability of the evidence and presumably, considerations arising from any discussions with defence counsel. The latter considerations are relevant in that it is open to defence counsel to request the attendance of Crown witnesses whose evidence is to be tendered under s. 540(7) for cross-examination, pursuant to s. 540(9). Historically, the Crown has generally been disposed to call certain of its witnesses to permit cross-examination at the behest of the defence and then in the case of Rao it says, in this case however, the preliminary inquiry judge effectively encouraged the Crown to proceed by way of a paper record rather than to proceed with its original plan of calling an agreed number of Crown witnesses to give viva voce evidence.

The Court goes on to say that the Crown can proceed on a paper case, but those factors are not relevant here in this case in the sense of what I have to look at. Then paragraph 64 goes onto say this:

The right of the Crown to tender its initial case by way of paper however does not detract from the right of the defence to apply, pursuant to s. 540(9) of the Code to examine or cross-examine "any person whom the justice considers appropriate", "with respect to information intended to be tendered as evidence under subsection (7)." It is apparent from the wording of s. 540(9) that it expressly anticipates that witnesses providing the information under s. 540(7) may be subject to cross-examination.

There is a fair bit of discussion in the case of Rao, because there was no actual application by the Defence and I will skip over that, because it does not apply here. Then picking up at paragraph 71:

Mr. Rao relies on the decision of the Quebec Court of Appeal in P.M.

I will just pause to say that is the other leading appellate authority on this issue. I will continue the quote:

In support of his submission that although the 2004 amendments were intended to streamline the preliminary inquiry in many respects, they were not intended to be "radical reform". In P.M. the Court reviewed the Parliamentary discussions leading to the passage of the amendments and ultimately rejected the Crown's submissions that the amendments made cross-examination on statements contemplated under s. 540(7) exceptional and that an accused can only apply under s. 540(9) for the limited purpose of determining whether the evidence should be admitted under s. 540(7). In affirming the use of s. 540(9) for the ancillary purpose of testing the Crown's case through cross-examination, the Court stated at paragraph 78 to 81:

...even thought the justice presiding over the preliminary inquiry makes sure essentially that there is evidence that an indictable offence has been committed, the accused is entitled to adequately prepare his or her trial. This exploratory role of the preliminary inquiry, though ancillary, was not diminished by Bill C-15A [which introduced the 2004 amendments to Part XVIII of the Code], despite the fact that the rules relating to the disclosure of evidence had been considerably broadened following R. v. Stinchcombe.

In R. v. Francis, 202 C.C.C.(3d) 147, Justice Ratushny of the Superior Court of Justice of Ontario wrote aptly on this subject – and then they quote from her decision in Francis as follows:

In R. v. Sonier, 2005 ONCJ 75, [2005] O.J. No. 1234, 201 C.C.C. (3d) 572, at paragraph 8, Justice Omatsu observed that in bringing in these new amendments Parliament did not intend to eliminate the secondary discovery function of preliminary inquiries or to convert preliminary inquiries into a paper hearing. I agree and see no reason to believe otherwise, particularly in light of the screening device and discovery mechanism purposes of the preliminary inquiry as described in Hyndes, supra, that appear alive and well at this time and are reflected in the retention of Part XVIII of the Criminal Code dealing with the preliminary inquiry and in s. 541 retaining the right of the accused to call its own witnesses.

And I am going to be continuing quoting from Rao, which is quoting P.M.:

Professor Paciocco,

and I will pause to say he is now Justice Paciocco,

has contested the attempts to reduce this exploratory role, which he has linked directly to the obligation to disclose evidence. He wrote the following on this subject:

Cross-examination can turn lines of disclosure into pages of discovery, enabling defence counsel to explore information not found in what are often the selective, even skeletal statements obtained by the police. It permits the defence to correct innocent non-disclosure caused by prosecutors or police officers who fail to see the relevance of information that the accused uncovers during cross-examination, and it permits defence counsel to observe the demeanour and quality of the witnesses, factors important in the tactical decision that counsel will make.

[references omitted in the original.]

Going on to quote again from P.M., the case continues:

This ancillary role of the preliminary inquiry cannot be minimized, or even hidden as the Crown proposes. [Footnotes omitted.]

I have been reading straight out of Rao, but it is quoting cases that quote other cases. So the case goes on to talk about some of the jurisdictional issues with the preliminary inquiry judge in Rao, which I will just pass over again.

Paragraph 73 continues to say:

It is evident that the preliminary inquiry judge was of the view that the utility of s. 540(7) was defeated if the Crown could tender its entire case on paper, on the other hand, only to be compelled to produce the witnesses for cross-examination, on the other. I disagree.

And "I disagree" is quoting from Rao.

S. 540(9) does not give the Defence carte blanche in seeking to have witnesses called for cross-examination. As stated by the Court in P.M., at paragraph 86:

When all is said and done, I do not feel it is necessary to add to the text of subsection 540(9) of the Criminal Code in order to render Parliament's intent. In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand the accused's legitimate interest in preparing his or her defence and bringing out at the preliminary inquiry stage the insufficiency or the weaknesses of the Crown's evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requested by the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. If the relevance is not demonstrated, the request will be denied.

Then the Court goes on to indicate its determination in Rao which does not apply here directly.

There are other passages that – when I was going through the C.R. decision I quoted from even within the dissent. There is some strong language that supports the arguments of the Defence that there is a very legitimate purpose to the discovery functions at a preliminary inquiry and other judgments that I read from in that case, quoted Justice Paccioco – Professor Paccioco as he was then, even further to emphasize the great significance of the preliminary inquiry's discovery function.

Frankly, until Parliament says that is no longer purpose of preliminary inquiry, I accept that it is and that it has a legitimate purpose and it should be considered in determining when witnesses should be produced for cross-examination. It will very much be determined by the facts of each case. It will turn on factors such as the extent of harm or trauma that might be done to a witness by having him or her testify, balanced against the areas of inquiry that wish to be made. The judge will have to apply in each circumstance logic and reasoning, common sense to balancing those factors and come to a determination about whether it is appropriate to produce someone for cross-examination.

Application to This Case

I am mindful of a decision by one of my colleagues, Justice Devlin, who declined to permit cross-examination in circumstances where the complainant had been in a - I believe a relationship violence case – and very severely beaten and was extremely terrified of the accused person. I do not have those factors here. I accept that with any young witness, any youthful child witness, there will be some trauma to having to testify more than once. For me, that is a given, but we also have to look at whether there is anything more in a particular case, such as what Justice Devlin had that might weigh in the scales more in favour of declining the cross-examination.

I had the benefit of seeing the girls on video tapes in this particular case, the two complainants. Neither of them appeared to have any difficulty about speaking about the allegations. They did not – well, M.D. in her statement suggested she was afraid to say anything to Mr. V.K. at the time that these things allegedly happened. She was afraid to say anything, to say "stop" or "don't do this". She has not expressed any additional fear that might be a factor. H.V.K., frankly in her statement says, "I told him to stop it, this is wrong…" and she was able to stand up to her father at the time.

Now, I do not wish to minimize at all the impact that it would have to talk about these things knowing Mr. V.K. is here. A very important factor for me in this case, however, is also that both witnesses will be permitted to testify through use of a close-circuit CCTV room, (which the way we have it set-up – we are fortunate in this building to have the technology), so that neither witnesses will see the accused at any time. They will be in a separate room, on a close-circuit system and there will be an ability for – to have them step out to a waiting room if they are upset or anything of that sort. They can talk to support persons, but I will be happy to accommodate a request for support persons as well if that assists. Generally speaking the only people whom they will see are the judge and the lawyers. I know that both Counsel will treat them with respect and dignity. I have known Mr. Risen for many years and I know that he is a very professional, considerate lawyer who will act in a way that – he will do his job, but he knows about how to deal with young witnesses and I will monitor if something goes awry, I will make sure that it stops. It is a very important factor when we have the CCTV room, we have a judge who is capable of monitoring what is going on and we have discussed the areas of questioning so that we can minimize the trauma, if I can put it that way, as much as we can, while still acknowledging that there will be some trauma in place.

There are some cases that talk about the fact that the Defence does not wish to ask anything beyond what is already in the police statement. That is an important factor, I think, to be considered as well. If there is nothing to be added or gained by the questioning, then that would be a factor in some cases where the court might exercise their discretion to decline the cross-examination. In this particular case we had outcome – I will do it in a minute, a lengthy list of areas that were very clearly articulated that the Defence is requesting to question about. It is an important factor for me in determining relevance, whether those areas were covered at all by the police in their questions and many of these areas were not.

I agree with Justice Paccioco's assessment of the situation that one cannot expect a police officer or the prosecutors to bring out all areas that might be relevant for the Defence. The Crown pointed out, well, does not that mean in every case the witness will have to be produced for cross-examination? I do not agree, because part of it will depend on how relevant the areas of inquiry are. It will also depend on whether they were already canvassed or whether the Defence may have access to the information in some other form.

So I will leave that to one of the – and I say that, because in C.R. we had foster parents who had access to information independent of what the police had done, but I still permitted cross-examination there for a variety of reasons.

The case of P.M. – I am not going to read from P.M., I am just trying to see if I have a citation for it. Yes, the citation I have from Mr. Risen's book is 2007 QCCA 414, 222 C.C.C.(3d) 393. The other case that I have had regard to is that of Sweet, 2012 YKSC 37, 2012 Y.J No. 76, at tab 4 of the Defence casebook, but I am not going to read from it.

In C.R. and in this case I have adopted the approach that the Court should look at the areas of inquiry that the Defence wishes to question about, determine the relevance and balance that against the impact on the witnesses with testifying.

Further to what I have said earlier about the nature of the allegations here I note that there is nothing in the nature of the allegations that involved gratuitous violence, in other words no beatings or weapons, for example. There were also no threats involved to either girl. Although whatever factors may be at play in any one case could differ. I am not saying there is an exhaustive list, but those are the types of things that I might look at in determining whether cross-examination ought to be permitted.

Permitted Areas of Cross-Examination

I am going to go now through the list of areas that the Defence wished to question about. In the end we came pretty close to an agreement – if I was permitting the cross-examination as to the areas that might be permitted.

Area One: Third Party Records Application

The first was to lay a foundation for a third party records application involving, for example, any involvement with the Children's Aid Society that discussed these allegations and it is agreed that it is an area that the girls can be questioned about.

Area Two: Initial Denial

The second was – part of M.D.'s answer to Detective Stevenson when asked about "has anyone ever touched your private parts". She said "no", initially. The Crown agrees and I do too that that is a relevant area that the Defence can question about.

Area Three: Conversation with Mother

The third area is the statement that refers to a conversation that M.D. had with her mother. In light of the evidence that I mentioned previously that she said that no one had touched her private parts, she answered "no" to that. There was a discussion about what she had told her mother. The Defence wishes to question her about whether when she was asked about the conversation with her mother, M.D. thought she was obliged to relate what she had told her mother or whether she was in fact adopting that it had happened. The Defence wishes to explore whether she understood that it was okay to tell the officer something different than what she had already told her mother. That area of cross-examination is something that the Crown agrees is relevant and I agree as well, so it will be permitted.

Area Four: Knowledge of Terminology

The fourth is whether the complainants knew the word "vagina" before the allegations arose. So in other words is this something that they were taught at school, or by one of the adults to whom they disclosed or, for example, was it first introduced by the police. So the question is whether this is coming from their own knowledge or whether it is something that results from the nature of the conversations with other adults. I agree and that is an area that the Crown agrees with, and I will permit that.

Area Five: Discussions Between Complainants

The fifth area is with respect to any discussions that the two girls had with one another. As I mentioned, M.D. says that she told H.V.K. and then H.V.K. ended up – I believe it was H.V.K. that ended telling M.D.'s mother, but anyway, it came to light through that route.

The Defence wishes to explore with both of the girls whether there could be collusion or contamination either way. In other words, on the day of the sleepover or even at some point since that day, what in fact have the girls discussed with one another. There really are two aspects there. There could be collusion, obviously, which is where people sort plan to make up a story together. There could a be more innocent link, such as contamination that might still be significant, where people may incorporate into their own memories what they hear someone else telling them. So both aspects may be explored, in other words, what did the girls discuss with one another, when did they discuss it, how much detail did they go into, that type of line of questioning. The Crown agreed that this was perhaps the most obvious and most relevant area that the Defence sought to question on that he agreed with.

Area Six: Genesis of Disclosure

The sixth is the issue about an initial conversation with her mother, where she was asked three times, initially denying anything had happened and there were different responses, but eventually disclosing. I will permit cross-examination as it was referred to in the C.R. case, the Defence counsel there called it sort of the genesis of the disclosure and it really is the same type of an issue, which is, how was disclosure first made, what types of questions was the witness asked. It incorporates aspects such as suggestibility, for example, some questions by adults may suggest information, others are more open-ended. So the entire issue about the conversation with her mother and why she initially denied it and why she changed her position to say something had happened is all very relevant and I will permit cross-examination on that. The Crown agrees that there is relevance to that.

Area Seven: Credibility of Collateral Witness (Ms. P.)

There is a witness named Ms. P., who was living with H.V.K. around the time of these disclosures, she is a – I do not remember if she calls her something like an aunt, but she is a close female friend of her mother's. Ms. P. has provided the police with a statement that is different from what H.V.K. has said about the same issues. For example, things such as H.V.K.'s attitude towards visiting her father - my memory may be failing me, but I think Ms. P. was saying that she was reluctant to go see her father whereas from H.V.K. the evidence appears to be that she always wanted to see her dad and loved seeing him. I think that was apparent from the statement. I cannot remember the further details of what Ms. P. says, but I accept that it is suggested that there is a distinction there. Also Ms. P., I believe, claims that there was a lock placed on H.V.K.'s bedroom door at her father's residence which - there is something about a lock on the door and I may have it mixed up what it is about, but again there seems to be a difference between what Ms. P. is claiming and what H.V.K. is claiming. So the Defence is taking the position that H.V.K. would say that she actually looked forward to seeing her dad and did not want to come home when she was with him, those types of things.

This line of questioning will be permitted because it is relevant to challenging the credibility and reliability of Ms. P. on her evidence. I expressed my views during submissions that I am very concerned about - the questions here not leading down a lengthy examination about visitation issues. I will permit the Defence to explore areas that will permit – well, perhaps permit an attack on Ms. P.'s credibility on the issues, but I have not seen enough of H.V.K.'s evidence other than what was in her statement to know how impacted she is by her parents' issues with respect to visitation and access and custody and things of that sort. So I am going to permit it, but I am just very concerned that we minimize the trauma to H.V.K. in that area. Children are very, very sensitive to their parents' wishes about seeing them. Most children want their parents to see them and want their parents to get along and this is usually a sensitive area in families when there is a disagreement about visitation and access. So I am going to permit the line of questioning, but I will not permit it to go too far, if I can put it that way. I want to limit that as much as we can, so in terms of Ms. P.'s issues, I will let it be set up enough to have H.V.K. confirm what might then later contradict Ms. P.

Area Eight: Visitation Issues

Point eight is a related issue – C.P. told the police that visitations were regular, however, the Defence takes a different position. They want to ask H.V.K. about visitation, whether she was aware that her parents were fighting over it, whether her mother used visitations as a means of punishing her, in other words, were there times when H.V.K. was misbehaving and her mom says, "well, you cannot go see your dad because of that". That is what I understand the gist of it is. The Defence wants to ask some things along the lines of, did she feel relieved that she didn't have to go see her father anymore, because of the sexual assault allegations coming to light or was she disappointed that she could not see her father more. The Defence would say that they have a basis to believe that she knew about that, she knew about the fights that were going on and that it was impacting her.

The Crown was concerned – I raised concern and the Crown shared my concern, so seven and eight overlap. So I will just put Mr. Risen on notice that I intend to watch that area closely, and I also intend to watch for any signs of distress by H.V.K., because it is the type of area that is not directly relevant to the allegations. It could be related to a motive for disclosing the allegations, I appreciate that, so I am permitting it. I want to monitor it and see how she is handling that area and frankly, if I feel that it is causing her too much distress and I feel that her emotional well-being is more important than the relevance that I have observed here I may stop it.

Mr. Risen, I know that it is difficult to get a very clear direction on that, because it partly will depend on how H.V.K. is handling it. She seemed very upbeat and happy in her interview, she loves her father, she loves her mother, she loves seeing both of them. That is the impression that I get from the statement, so it may not be a difficult area. She may be one of those young people who is aware of the issues and is able to handle it. She did not seem frail, or fragile, if I can put it that way, on the video statement so that is why I am going to permit it, but with caution. I see your client even nodding in agreement. I am sure that he does not want his daughter distressed, so as I say, this is such a touchy area for some children that I will watch for her reaction and then....

MR. RISEN: I understand, Your Honour, in fact it wouldn't surprise me if what upsets her more is that she hasn't been able to see him since...

THE COURT: Fair enough.

MR. RISEN: ...these charges than anything else.

THE COURT: Yes, and she may be saying, I wish I could see my dad more or wish....

MR. RISEN: That may cause her distress.

THE COURT: You know, some children do that, they will say, I wish I'd never said anything, because now I can't see my dad. So fair enough and you are both clear on my concerns? I am permitting it in a limited way and I will just ask you to try to get the information you need without becoming too intrusive about her feelings towards her parents on custody and access issues, if I can put it that way. It is relevant, but I will limit it.

Area Nine: Peripheral Details of Alleged Incidents

The last area is item nine, the Defence wishes to explore the details of the alleged assaults with both complainants. Some aspects of what they are saying happened at the sleepover. The Defence has good faith and reason to believe it could not or did not happen that way. The Crown was initially opposed to this area, because of the very legitimate concern of asking the girls to describe in detail the alleged assaults which could be very traumatic. I agree that exploring issues that relate to detailed sexual descriptions of – you know, did someone put their hand and finger in your vagina, can be very difficult for adults, let alone children. Mr. Risen has indicated that he is not intending to go through the sexual details of the alleged incidents, but rather wishes to explore the peripheral details, in other words, who was present, what was being said, what was happening in the room.

The allegation is that there is a game of "I spy" being played while four people are in the bed. At some point Mr. V.K. is alleged to have turned over in his sleep after something happened with M.D. and the Defence – I will permit – the Crown agrees that there is relevance to those areas, so again, I will be watching the area closely as the Crown will. He has indicated that he is concerned that it not be a "slippery slope" and I agree. But I am accepting Mr. Risen's undertaking that the intention is not to get the girls to describe in vivid detail what is alleged to have happened, but rather to explore who is doing what, when, what was heard, what was being said, were movements noticed by – for example, did H.V.K. notice any kind of movements that might reflect upon the possibility of whether there was something going on between her father and M.D.. We do not anticipate H.V.K. to say, I saw my father touch M.D., because she has never said that to date. If that response comes forward, I have indicated that we will have some discussion at that point about whether further questioning is permitted and if so, what kind of questioning. I am leaving that to – we do not anticipate she will say that she saw anything, so if she is saying, I did not see anything then that is a legitimate area for the Defence to explore what she did not see. What people did not see, did not hear is quite highly relevant. So I will permit all of that and if we receive unexpected answers, we will revisit my Ruling and what is permitted and it will turn again on relevance versus the impact on the complainants, the alleged victims here.

I will just pause to ask Mr. Risen, have I overlooked any areas that you wish me to canvass?

MR. RISEN: Not that I can think of at this time. I think the ruling is very clear...

THE COURT: Yes.

MR. RISEN: ...and I understand it.

THE COURT: All right, thank you. And as I mentioned many times during submissions, I have confidence in Mr. Risen as someone very experienced and well known to this Court and that he will honour the spirit of what is intended here. I don't have any doubt that he will. Mr. Parke, do you have any questions about the ruling or need any clarification on what I have said?

MR. PARKE: No, thank you.

Final Directions

I will just indicate – we have been having discussions back and forth, but in terms of my ruling, it was raised with me the issue about whether once cross-examination is permitted does it restrict cross-examination. I am not going to deal with that issue in this case as I have indicated during our discussions and submissions, I'll leave that to another case where it matters. The Crown's position is that just because you are given permission to cross-examine under 540(9) doesn't mean it's a "free-for-all" on all aspects. The Defence is saying, I don't wish to be fettered and restricted in my cross-examination because I may not be able to anticipate all areas. It is my view that in this case we have had a very thorough discussion of the relevant areas. I find that these areas are all highly relevant, many were not canvassed by the police in the statements/interviews and that they are very important aspects of discovery that the Defence is entitled to explore in the ancillary purpose of the preliminary inquiry.

It is for those reasons that I permit it, but if other issues arise in the course of cross-examination that none of us could anticipate then obviously I would invite the Crown to object to it. I would invite Mr. Risen, if he foresees that there is some area that might be contentious, to perhaps invite me to have the witness step out or to take a recess so that we can then discuss the issues. We are trying to avoid having the situation where the flow of cross-examination is not interrupted by objections and at the same time that there isn't questioning that requires the Crown to legitimately object. We are trying to balance everybody's interest because an in-and-out, in-and-out process with a witness can be traumatic in itself. So we will approach the preliminary inquiry questioning on the basis of what I have indicated today and I will be happy to assist with further directions if either of you need it in course of the preliminary inquiry. Thank you.

CERTIFICATE OF TRANSCRIPT

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Yvette Fiala, certify that this document is a true and accurate transcript of the recording of R. v. V.K., in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2, taken from Recording No. 2811-103-400732-20121123-091157, which has been certified in Form 1.

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Date: January 10, 2013

Transcript Ordered: December 14, 2012

Transcript Completed: January 10, 2013

Ordering Party Notified: January 14, 2013