Court File and Parties

COURT FILE NO.: CR-22-10000552-0000 DATE: 20240223 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – S.M. Defendant

Counsel: Cara Sweeny, for the Crown Cole Perry, for the Defendant

HEARD: January 19, 2024

PUBLICATION BAN There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a victim or a witness.

DINEEN J.

[1] The defendant was charged with a single count of sexual interference and was tried by me with a jury. The complainant is the defendant’s stepdaughter. She was 9 years old at the time of the alleged offence and is now 12. This is the defendant’s second trial as a previous trial ended in a mistrial in September, 2023 after the complainant had finished her evidence.

[2] While the complainant was in examination in-chief, she said that she felt unwell and asked to break early for the day. She then ultimately refused to return to court to continue her testimony.

[3] The defence moved for a mistrial, while the Crown sought the admission of the complainant’s testimony from the first trial under either the principled exception to the hearsay rule or s. 715(1) of the Criminal Code. I dismissed the application for a mistrial and admitted portions of the audio recordings of the complainant’s direct and re-examination, and her entire cross-examination, from the defendant’s first trial. I told counsel I would provide reasons at a later date. These are those reasons.

Factual background

[4] The charge relates to a single incident alleged to have taken place while the complainant was visiting the defendant’s residence for the weekend. The defendant and the complainant’s mother had broken up and he had regular weekend visits with their children, one of whom is his biological daughter and for two of whom, the complainant included, he had taken on the role of father from a time when they were very young.

[5] The complainant made a videotaped police statement that was adopted as part of her evidence at both trials pursuant to s. 715.1(1) of the Criminal Code. At this trial, the complainant adopted her statement and was asked some questions by Crown counsel about her family background and to clarify her account from the video. After the first break, Crown counsel reported that the complainant was feeling unwell and had asked to break for the day.

[6] The following day, the complainant did not attend and I was advised that she continued to feel unable to come. Crown counsel spoke with her that evening and when asked if she would attend, she said “I really don’t want to.” She became unresponsive when asked to explain why.

[7] No sworn evidence was led from the complainant’s mother – who was also a witness at trial – about the complainant’s refusal to come. The Crown tendered notes from the officer in charge of the case of a conversation he had with the complainant’s mother about the issue where she reported that the complainant had been suffering from worsening depression leading up to the second trial date and had begun self-harming the week before.

The legal framework

[8] In R. v. T.H. 2017 ONCA 485 [1], MacPherson J.A. summarized the leading case R. v. Hart, (1999), 1999 NSCA 45, 135 C.C.C (3d) 377 (N.S.C.A.) on the proper approach where a witness becomes unresponsive and cross-examination cannot be meaningfully concluded:

The leading case is 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, a sexual assault case involving a 12 year old complainant who was unresponsive during cross-examination. Based on the complainant’s unresponsiveness, the defence sought a judicial stay or a directed verdict of acquittal. The trial judge declined to grant this relief and this decision was upheld by the Court of Appeal.

After a careful review of relevant common law and Charter principles and Canadian, English and American authorities, Cromwell J.A. identified three factors that should be taken into account in determining whether the unresponsiveness of a child witness during cross examination denies an accused the right to make a full answer and defence and renders the trial unfair: (1) the reason for the unresponsiveness; (2) the impact of the unresponsiveness; and (3) possibilities of ameliorative action: Hart, at pp. 410-414; see also R. v. Cameron (2006), 208 C.C.C (3d) 481 (Ont. C.A.); and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515.

Application to the case at bar

The reason for the unresponsiveness

[9] At both trials, the complainant testified by video from outside the courtroom and in the presence of a support person and a dog. While all possible accommodations were made, the emotional challenge of the trial process on the complainant, given her age and the nature of her evidence, was obvious. Judging by the audio of the first trial, her presentation was starkly different at that time. While she answered questions naturally at the first trial, she appeared closed off and was sometimes entirely unresponsive under questioning during her brief evidence at the second trial.

[10] There is no basis to believe that the complainant was attempting to thwart cross-examination. Her refusal to continue testifying took place during examination in-chief, and she submitted to a full cross-examination at the first trial. It was apparent that participating in the trial process was emotionally very difficult for the complainant despite the efforts to accommodate her and I conclude that this is the reason for her unresponsiveness. I do not rely on the hearsay evidence from her mother in reaching that conclusion.

The impact of the unresponsiveness

[11] I find that the impact of the complainant’s refusal to continue giving evidence was greatly attenuated in this case. The defence had already had an opportunity to conduct a full cross-examination of the complainant. This was not a preliminary inquiry cross-examination where counsel may have avoided confronting the witness or directly challenging her evidence; rather, it was a complete cross-examination at a trial held only months earlier. While the jury did not have the benefit of seeing the complainant give this evidence, the playing of the audio still permitted them to make an assessment of aspects of her demeanour.

[12] This is also not a situation where the Crown’s case turns entirely on the complainant’s credibility. The Crown also led evidence from the complainant’s mother that she confronted the defendant about the complainant’s allegations and that he made admissions.

Possibilities of ameliorative action

[13] As noted above, the jury had available a close substitute for cross-examination at this trial in the form of the audio of the complete cross-examination conducted at the first trial. The loss of the ability to cross-examine before this jury could further be mitigated by an instruction reminding the jury that they should be careful in assessing the complainant’s evidence given that they had not had the benefit of the complainant’s visual demeanour and that the defence had lost the opportunity to ask further questions that may have arisen at this trial.

Balancing the factors

[14] I concluded that the second and third factors strongly militated in favour of continuing the trial and admitting the complainant’s evidence from the first trial. In considering whether the first factor militated in the other direction, I took into account what Cromwell J.A. said in Hart:

Over the last 10 years, there has been growing recognition that some rules of evidence and trial procedure do not adequately address the special needs of young witnesses, particularly in sexual abuse cases. This recognition has resulted in significant law reform, both by common-law development and by statute.

This same flexibility and common sense must be applied when considering the consequences of a child witness becoming unresponsive during cross-examination. It seems to me to be wrong to base the analysis on whether the unresponsiveness is the “fault” of the witness, as some of the older authorities do. While it may be appropriate to consider whether the party calling the witness and the party cross-examining have done what is reasonably possible to mitigate the difficulties of testifying, the primary focus of the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. This analysis should have due regard to the particular circumstances of the case, viewed realistically and with common sense by standards appropriate to a witness of the age and sophistication of the child in question. In short, the assessment must be made with the flexibility and common sense appropriate to child evidence generally, not according to stereotypes or rigid rules.

[15] This was not an adult witness who had wilfully refused to participate in the process, it was a young child who was evidently struggling emotionally. I concluded that the relevant factors considered together favoured continuing the trial with appropriate ameliorative actions.

[16] I also concluded that it was appropriate to admit the portions of the complainant’s evidence in-chief from the first trial that had not been reached at the trial before me pursuant to s. 715(1) of the Criminal Code. I was satisfied that she had refused to give evidence within the meaning of the section and that the defence had a full opportunity to cross-examine at the first trial. Admission of the remaining evidence in-chief was also necessary as context for her cross-examination. Important portions of the cross-examination arose directly from areas of the evidence in-chief that were not reached at this trial. It would have been very difficult for the jury to understand the cross-examination without the benefit of this context.

Disposition

[17] For these reasons I dismissed the application for a mistrial and admitted the audio of the complainant’s testimony from the first trial pursuant to s. 715(1) of the Criminal Code.

Dineen J. Released: February 23, 2024

COURT FILE NO.: CR-22-10000552-0000 DATE: 20240223 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – S.M. REASONS FOR JUDGMENT Dineen J. Released: February 23, 2024

[1] See also R. v. Durocher 2022 NWTCA 1