SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CRIMNJ 2203/12
DATE: 2013 02 28
RE: R. v. Dadzie GODDAY
BEFORE: Hill J.
COUNSEL:
F. McCracken, for the Crown
M. Osadet, for the Defence
HEARD: February 27, 2013
RULING
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.
BACKGROUND
[1] The accused, Dadzie Godday, pleaded Not Guilty to sexually assaulting K.A. (K.A.).
[2] On February 26, 2013, the 28-year-old complainant testified in-chief between 10:30 a.m. and 12:17 p.m.
[3] At 11:00 a.m., K.A. requested an unscheduled break during questioning. A few minutes prior to the complainant’s request, she reported discomfort:
A. My chest is hurting me, you know. I’m on … I was on anti-anxiety pills … and psychotics … all kinds of medication.
Q. Was this at the time of the incident or now?
A. It’s now.
[4] At about 12:21 p.m., cross-examination of K.A. commenced and continued to approximately 12:55 p.m. when the court recessed.
[5] During the complainant’s testimony prior to the luncheon break, K.A. reported that just prior to the date of the alleged rape, September 16, 2011, she had been released from a “psych ward”. At some point, on her evidence, she had been struck in the head with a frying. She bled from the injury and almost died in hospital.
[6] In her evidence, K.A. acknowledged consuming alcohol on September 15, 2011 in an amount she could not recall. However, when asked by Mr. McCracken if she had consumed marihuana on September 15, 2011, the complainant replied that, “I don’t smoke weed. I got drug-induced psychosis so I can’t do that.”
[7] According to the complainant’s testimony, immediately after the alleged assault she spent three months at CAMH. On K.A.’s evidence, she has spent months trying to block the incident from her memory. She has been taking drugs. She has continued to have panic attacks. On K.A.’s evidence, she has just left a psych ward.
[8] During her testimony, despite specific instructions to keep up the volume of her voice and avoid speaking over the questioner, she continued to speak at an inaudible level and to speak over the questioner.
[9] On more than one occasion, K.A. became somewhat argumentative or impatient with the questioner, commencing an answer by saying, “I told you …”. The complainant reported that she had a lack of recall on a number of issues and that she was confused about the order of events she was narrating. Despite having been cautioned not to speak while the court was speaking, at about 12:55 p.m., while I was speaking to counsel and the court interpreters, K.A. lashed out verbally at the accused about his capacity to speak English. The complainant was again cautioned in strong terms about continued defiance of the court’s directions.
[10] After a play-back of evidence through a court interpreter for the benefit of the accused, at 2:40 p.m. the court called for the return of the complainant to the witness stand for continued cross-examination. Mr. McCracken informed the court that it had been reported to him that over the lunch break, K.A. had had an “emotional breakdown” in the victim/witness office. As a result, there was an issue as to whether K.A. could immediately return to the stand as opposed to the following morning.
[11] Crown counsel submitted that in his view an effort should be made to continue with the witness who was believed to be outside the courtroom. When the court services officer exited the courtroom to secure the witness she was not there. It was reported that she had gone to the washroom. The court remained in session awaiting the complainant’s return. After some minutes, when K.A. still had not returned, a seventeen-minute recess was taken. When court returned to session, Mr. McCracken reported that the complainant had made an attempt to harm herself in the washroom and that Peel Regional Police Service (PRPS) security officers had been forced to intervene and that a mental health crisis team had been called. In the circumstances, the court acceded to the request of Crown counsel for an adjournment of the trial to the morning of February 27, 2013. Court adjourned at 3:05 p.m.
[12] At 10:00 a.m. on February 27th, Mr. McCracken reported to the court that information he had received relating to K.A. Counsel stated that the prior afternoon in a courthouse washroom the complainant self-inflicted cuts to one of her wrists. Paramedic and PRPS officers attended the scene and ultimately K.A. was apprehended by the police pursuant to section 17 of the Mental Health Act, R.S.O. 1990, c.M.7, as amended, because of the present risk of the complainant doing further harm to herself. The police transported K.A. to hospital at about 7:00 p.m. on February 26, 2013, where, pursuant to section 20 of the Act, K.A. was the subject of an involuntary admission and placed on a 72-hour hold in a psychiatric facility of the hospital for self-protection and further assessment.
THE ISSUES
[13] Criminal allegations are decided upon evidence from witnesses, exhibits and admissions. The witness, K.A., was under subpoena to appear to give evidence in this trial and to appear until her evidence was completed. She has not completed her evidence as she has absented herself from the courtroom early in her cross-examination.
[14] On February 27, in apprising the court as to the circumstances of the complainant’s absence, Crown counsel stated that the future remained uncertain in terms of whether the complainant would be in the near term, if at all, be able to finish testifying. Mr. McCracken recognized that medical evidence would be necessary as to K.A.’s ability to testify further if that proves to be the situation following the expiry of the mental health committal.
[15] On today’s date, Crown counsel advised that the complainant was released from hospital at some point yesterday. At this time, there is no further information as to the circumstances of the complainant.
[16] Given that Mr. Godday is in custody on this matter, it is important that this trial draw to completion as soon as reasonably possibly.
[17] If the complainant is unable to re-enter the courtroom to complete her evidence for valid medical reasons, the court will be confronted with the need to determine what the evidence of K.A. is in this case. However, it is premature to yet consider this contingency as the court expects the complainant to return to court on March 4, 2013, to complete her testimony.
[18] Crown counsel has raised the potential for an application pursuant to section 715 of the Criminal Code to substantively admit the complainant’s preliminary inquiry evidence and perhaps as well her videotaped statement to the police pursuant to the modern principled approach to the admission of such evidence having regard to necessity and reliability circumstances. It may be that the option of constructive presence of the complainant in the courtroom will have to be explored through the option of evidence by video-link technology pursuant to section 714.1 of the Criminal Code. As said, these considerations are premature at this time.
[19] Further, although premature, if the complainant’s evidence does not complete in-court or through video-link, the manner in which the complainant’s in-chief evidence and aborted cross-examination in this case should be treated by the court would fall to be considered upon an application of the principles in such authorities as R. v. Cameron (2006), 2006 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.)(leave to appeal refused, [2006] S.C.C.A. No. 224); R. v. Hart (1999), 1999 NSCA 45, 135 C.C.C. (3d) 377 (N.S.C.A.)(leave to appeal refused, [2000] S.C.C.A. No. 109); R. v. Lovie (1995), 1995 801 (ON CA), 100 C.C.C. (3d) 68 (Ont. C.A.); R. v. Yu (2002), 2002 ABCA 305, 171 C.C.C. (3d) 90 (Alta. C.A.)(leave to appeal refused, [2003] S.C.C.A. No. 321).
TRIAL DIRECTIONS
[20] The trial will continue with the statement voir dire relating to Mr. Godday’s statement to the police and the calling of such witnesses on the trial proper as will not prejudice the defence from its inability to have completed its cross-examination of the complainant.
[21] On Monday, March 4, 2013, the court will address the completion of the trial and, in particular, the completion of K.A.’s cross-examination.
Hill J.
DATE: February 28, 2013
COURT FILE NO.: CRIMNJ 2203/12
DATE: 2013 02 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Dadzie GODDAY
COUNSEL: F. McCracken, for the Crown
M. Osodet, for the Defence
HEARD: February 27, 2013
RULING
Hill J.
DATE: February 28, 2013