WARNING
The court hearing this matter directs that the following notices be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 03 11 COURT FILE No.: Brampton Y 21 222
BETWEEN:
HIS MAJESTY THE KING
— AND —
I.M.B.
Before: Justice G.P. Renwick Heard on: 09 March 2023 Reasons for Judgment released on: 11 March 2023
Counsel: B. Jackson, for the Prosecution D. Finlay, for the Young Person I.M.B.
Ruling on Application to End Cross-Examination of R.C.
RENWICK J.:
INTRODUCTION
[1] The Young Person is charged in a seven count Information with sexual offences allegedly committed several years ago upon his three stepsisters, I.C., O.C., and R.C.
[2] The trial began in January 2023. R.C. was the second complainant to testify. She completed testifying in chief and had completed one hour of cross-examination when court ended for the day. The next day, R.C., now 19 years old and pregnant, advised that she was so upset by having testified on the prior day that she was physically ill and had contemplated suicide that night. This Application was foreshadowed when the parties agreed to continue the trial with the third complainant in the interim.
[3] The prosecution has gone to extraordinary lengths to save R.C. from having to continue to testify: the charges involving her have been withdrawn and the prosecutor has agreed not to seek to adduce similar fact evidence of her allegations.
[4] The Defendant opposes the prosecution’s attempt to terminate the evidence of this witness for fear that evidence of collusion between the complainants will be lost. Instead, the Defendant has graciously agreed to permit R.C. to continue her testimony remotely.
DISCUSSION
[5] There can be no doubt that cross-examination is vitally important to the trial process. The opening words of the Supreme Court’s decision in R. v. Lyttle [1] confirm this:
Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed. [original emphasis]
[6] The Supreme Court was clear in Lyttle that the right of a Defendant to cross-examine prosecution witnesses “without significant and unwarranted constraint is an essential component of the right to make a full answer and defence.” [2] This right has constitutional status, [3] and is to be “jealously protected and broadly construed.” [4] However, the court also made it clear that the broad right of cross-examination is “not absolute.” [5]
[7] The prosecution relies upon the Ontario Court of Appeal decision in R. v. T.H. [6] to support the proposition that the inability or refusal of a witness to testify is a recognized limitation on cross-examination. In that case, a child witness who had testified at an earlier trial and the preliminary hearing became increasingly reluctant and eventually refused to continue to answer questions while under cross-examination. The trial judge agreed to permit the introduction of the complainant’s testimony (including her cross-examination) from the preliminary hearing and refused an application to stay the charges arising from the inability to fully cross-examine the child. The Ontario Court of Appeal upheld those decisions.
[8] The Court of Appeal recognized that the leading case for the termination of a witness’ testimony is R. v. Hart, 1999 NSCA 45, [1999] N.S.J. No. 60 (C.A.) [leave to appeal refused]. That was also a case where a child witness had become unresponsive during cross-examination.
[9] In Hart, Cromwell J.A. (as His Honour then was) carefully reviewed relevant English, American and Canadian authorities, and emphasized that where there has been incomplete cross-examination of a witness, there is no dispositive test in determining whether a Defendant has been deprived of the right to make full answer and defence or whether their trial has become unfair. Nevertheless, the Nova Scotia Court of Appeal provided guidance for courts and provided three relevant considerations in arriving at this determination: 1. the reasons for the witness' unresponsiveness; 2. the impact of the witness' unresponsiveness; and 3. possible ameliorative action.
[10] Our Court of Appeal also applied the Hart test in R. v. Cameron [7] and noted that judicial discretion exercised to protect full answer and defence included consideration of trial fairness vis-à-vis the prosecution.
[11] In this case, the prosecutor submits that the inability of R.C. to continue to testify arises from concerns for her well-being and the health of her unborn child.
[12] The Defendant noted that this was not a case where there was medical evidence to establish the necessity to discontinue the witness’ evidence. In the Defendant’s view, “the witness is merely reluctant to testify.” The Defendant also noted that R.C. is an adult and the cases relied upon to justify premature completion of witness testimony involved child witnesses.
[13] Further, the Defendant’s fair trial rights are said to be at risk because collusion between the witnesses is a live issue in this trial. In fact, the Defendant asserts that the cross-examination had only just begun to broach the issue of evidential taint or collusion among the three complainants when the cross-examination of R.C. had ended.
[14] The Defendant proposes four categories of continued cross-examination that need to be explored in furtherance of making full answer and defence:
i. The nature of the discussion in Aunt F.’s garage; ii. The timing of the meeting in Aunt F.’s garage; iii. Ongoing pressure from I.C. to make a police report, including during the meeting in Aunt F.’s garage; and iv. The reliability of R.C.’s assertion that she told O.C. to “lie” to the CAS worker.
[15] The Defendant also alleges irreparable prejudice if R.C.’s cross-examination ceases. The meeting in Aunt F.’s garage was not mentioned in O.C.’s testimony, which has already completed. Nor did any of the three complainant’s mention the meeting in Aunt F.’s garage in their statements to police. From the Defendant’s perspective, without R.C.’s full testimony about the meeting and the possibility for collusion or inadvertent tainting, the Defendant’s defence is irreparably harmed.
ANALYSIS
[16] I have taken into account the apparent reason for the inability of R.C. to continue her cross-examination. The witness claimed that she had contemplated suicide on the evening after her cross-examination began. Also, the witness complained of having been physically ill (vomiting) and sleepless. R.C. was also concerned for the health of her unborn child.
[17] The evidence adduced on the Application is meagre but compelling. On the day that R.C. was to continue to testify, she met with the prosecutor and the officer in charge and spoke about her concerns.
[18] The officer recently swore an affidavit attesting to the emotional state of R.C. on 13 January 2023 when this discussion took place:
[R.C.] notified us that she was unable to continue with her testimony regarding the trial of R. v. [I.M.B.]. She appeared to be agitated, was unable to sit still in her seat, and began to cry. She advised that she was unable to sleep the night before and she at one point contemplated suicide. She further indicated that she was concerned for the wellbeing of her unborn child and was afraid she would miscarriage [sic] because she unable to keep her emotions under control. She advised that she barely ate and at some point either during the evening or morning she was vomiting and unable to keep food in her stomach. [R.C.] indicated that she was having difficulty with being questioned about the incident between her and Mr. [B.].
[R.C.] [was] provided other alternatives to testify, such as doing it on another day, or testifying from another room, however she refused. [R.C.] was adamant that she wouldn’t be unable [sic] to continue.
I observed [R.C.] to be in distresses [sic] and very emotional. I was concerned for her mental wellbeing and whether or not she would harm herself. I asked [R.C.] if she wanted to hurt herself at which time she indicated no. She advised that if she had to continue testifying, that she was worried about the positive work she has done on her mental health, and testifying could lead her down a path of wanting to hurt herself.
[19] The complainant’s claims (inability to keep food down, sleeplessness, concern for her pregnancy and her mental wellbeing) are serious. Notwithstanding that there is no medical evidence, the Defendant has not challenged the veracity of the claims. Instead, the Defendant takes issue with the characterization of the claims as serious. Rather than demonstrative of an inability to continue to testify, the Defendant characterizes the evidence as a reluctance to testify.
[20] Respectfully, I cannot agree with this characterization of R.C.’s situation.
[21] As an adult, in the absence of any evidence of a disability or mental condition, R.C. is presumed to know whether her mental health is at risk. There is no suggestion that she is fabricating an excuse to avoid continuing to testify. She was given the option of testifying on another day or remotely. She has been clear that continuing to testify will undo the positive work she has done on her mental health and it may lead to thoughts of self-harm. R.C. admitted that she had already thought of taking her life after having begun her cross-examination. Moreover, there is no evidence that R.C. is not pregnant. I accept that she is. I also find that there is a risk, however slight, to her pregnancy if she is compelled to continue to testify in this trial.
[22] I find that the evidence establishes that R.C. is unable at present to continue to testify. [8] This is a valid and justifiable reason to discontinue the cross-examination of R.C. and it favours granting the Application.
[23] Respectfully, the Defendant’s claims of irreparable prejudice if the Application is granted are not made out. The impact of terminating R.C.’s cross-examination is minimal.
[24] The issue of collusion was canvassed during the cross-examination of O.C. As well, the bulk of the interrupted cross-examination of R.C. involved testing her evidence in respect of the discussion at Aunt F.’s garage. The third complainant (I.C.) has yet to testify in cross-examination.
[25] I am not satisfied that there will be irreparable harm to the Defendant’s case if the cross-examination of R.C. is concluded for these reasons:
i. O.C. has already told the court about her several conversations with I.C. about their allegations and one discussion with R.C.; ii. R.C.’s evidence respecting an opportunity for collusion is already before the court; iii. I.C. has yet to be cross-examined. The Defendant’s theory respecting opportunities and possible tainting or collusion may be explored with her; and iv. The Defendant is entitled to call Aunt F., her daughter D., and any other witness to establish witness collusion.
[26] While I agree that there will be some effect upon the Defendant’s trial if the Application is granted, I cannot accept that the prejudice is significant. In light of the evidence led to date and the possibility to further explore the issue of witness collusion, I am not persuaded that the termination of R.C.’s cross-examination will have any substantial impact upon the Defendant’s ability to make full answer and defence. I have kept in mind that there are ameliorative actions that may be taken to reduce the effect of granting this Application.
[27] In terms of ameliorative actions, I am prepared to consider the following:
i. The recalling of O.C. for the limited cross-examination of any discussions with her sisters in Aunt F.’s garage; and ii. A self-instruction to give reduced weight to the evidence of I.C. and O.C. during my deliberation of the case.
CONCLUSION
[28] After a careful consideration of all of the submissions and the cases presented, I find that there is a valid reason to prematurely end the cross-examination of R.C., notwithstanding that she is an integral prosecution witness. The prosecutor has taken significant steps to reduce the harm to the Defendant’s fair trial rights and minimize any prejudice flowing from the inability of the witness to continue to testify.
[29] I am satisfied that any effect upon the Defendant’s fair trial rights is slight. I have weighed the Defendant’s interests along with the needs of the prosecution, the pursuit for the truth, and the best interests of the administration of justice.
[30] For these reasons, I am satisfied on a balance of probabilities that it is appropriate to discontinue the testimony of R.C. midway through her cross-examination.
[31] The Application is granted.
Released: 11 March 2023 Justice G. Paul Renwick