ONTARIO SUPERIOR COURT OF JUSTICE
CITATION: R. v. Campbell, 2026 ONSC 4193
BETWEEN:
HIS MAJESTY THE KING
– and –
SHANE CAMPBELL
Defendant
M. Crystal and K. Rich, for the Crown
S. Hafizi, for the Defendant
HEARD: April 23, 2026
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.
REASONS FOR DECISION ON APPLICATION
Ellies J.
OVERVIEW
1The defendant, Shane Campbell, is accused of sexual assault, sexual interference, and invitation to sexual touching relating to a single complainant, who was 14 years old at the time of the alleged offences. The complainant, who is now 16 years old, was unable to return to the witness stand after a recess on the second day of her cross-examination by counsel for the defendant.
2The Crown applied to continue the jury trial notwithstanding the fact that the cross-examination could not be completed. The defendant applied for a directed verdict of acquittal or, in the alternative, for an order declaring a mistrial.
3After a brief recess following the hearing of the competing applications, I granted the Crown's application and dismissed the defendant’s application for reasons to follow.
4These are my reasons.
BACKGROUND
5It is important to understand the events leading up to the time at which the complainant was no longer able to continue being cross-examined. Therefore, in this section, I will include details about how the trial unfolded that ordinarily would not be relevant.
6The trial began following the selection of the jury on Monday, April 20, 2026. Unfortunately, it ran into technical difficulties early. There were problems linking the Crown's computer screen with the display monitors in the courtroom during the testimony of the first witness, a police officer. There were also problems linking the courtroom to the remote location in the courthouse from which I had given the complainant permission to testify. As a result, the trial was moved to a different courtroom on the second day of trial, April 21. However, counsel were advised that the courtroom was only available on that day and for part of the next day, as it was being used for a swearing-in ceremony during the afternoon of April 22.
7The evidence continued on the morning of April 21 with the testimony of the police officer. The complainant's examination-in-chief by the Crown began just before the lunch break that day and lasted approximately one hour. She testified that she and a friend were in downtown North Bay one day in August 2023, asking homeless people for cigarettes. She said that she allowed a lady who was unknown to them to use her cell phone to contact the defendant, who was also unknown to her at the time. The lady tried unsuccessfully to reach the defendant both by phone and through Facetime.
8The complainant testified that, in October that year, she and a friend were at the complaint's house. She said that they were bored and were trying to find drugs. When they were unable to reach people they knew, they decided to try to reach the defendant through the Facebook page the lady had accessed in August. She said that she assumed the defendant would have drugs because the lady who used her phone looked to her as though she did drugs.
9The complainant said that she and her friend reached the defendant through Facebook that day. They offered to give the defendant oral sex in exchange for drugs and arranged to meet the defendant at the Voyageur Inn that evening, which was not far from the complainant's home. She said that she and her friend met the defendant in his truck there that night and they each performed oral sex on him, in exchange for which he gave them “meth” (methamphetamine).
10The complainant testified that she met alone with the defendant on two further occasions that month in a similar fashion, once at the Voyageur Inn and once at a service station not far from there. On each occasion, the complainant and the defendant drove to a location at which she performed oral sex on the defendant, after which he provided her with drugs; either meth or cocaine on the second occasion and cocaine on the third. The complainant said that, on all three occasions, she did drugs with the defendant during the encounters. She also said that, on the second occasion, the defendant asked her if he could perform oral sex on her, which she declined.
11The complainant's allegations came to the attention of the police after she told a friend about them, which led to charges of sexual assault and sexual interference against the defendant regarding the oral sex the complainant said she performed on him and invitation to sexual touching relating to the defendant's request to do the same to the complainant.
12The Crown finished its examination-in-chief of the complainant just after lunch on April 21, at about 2:15 p.m. Ordinarily, given that we had just resumed at about 1:30 p.m., I would have expected the defence to begin its cross-examination of the complainant immediately and to continue until the afternoon recess. However, Mr. Hafizi was not able to begin his cross-examination immediately because he did not have transcripts of the complainant's statement to the police or of her preliminary inquiry testimony available for the witness or the court. Accordingly, we took a recess while the Crown graciously assisted Mr. Hafizi by obtaining copies of the transcripts.
13Court resumed at about 2:45 p.m. that afternoon, at which time Mr. Hafizi began his cross-examination of the complainant on behalf of the defendant. Before he began, however, he advised the court that, although he was able to begin that day, he would have to continue the next day because he had “a few things” he wanted to show the complainant using the courtroom technology that he still had “to set up”. He advised that he would only be about an hour before he would need to break for the day.
14Because of the limited use we were able to make of the second courtroom, I asked Mr. Hafizi how long he thought he would be in cross-examining the complainant the following day. He indicated that he thought he could finish by 11:00 a.m., the time at which we believed the courtroom would have to be given up for use during the swearing-in. He also advised that, even if he was not quite finished, he would not need to use the courtroom technology beyond the early part of his continued cross-examination, and the trial could be moved into the courtroom in which it began.
15At about 3:50 p.m., Mr. Hafizi was still cross-examining the complainant. Because it did not appear that he was nearing the point at which he needed to set up and because the jury had been sitting for over an hour, I advised Mr. Hafizi that I wanted to adjourn for the day at around 4:00 p.m. and asked him if he could find a convenient place at which to stop when that time approached. He advised that it would be appropriate to stop there, which we did.
16The trial was unable to resume any earlier than 10:00 a.m. the next day (April 22) because Mr. Hafizi had a judicial pretrial conference at 9:30 a.m. on another matter. However, I managed to get an extension to 12:00 noon before we had to vacate the courtroom, which gave us an extra hour, in any event. Mr. Hafizi continued his cross-examination beginning at approximately 10:10 a.m. With the jury's cooperation, we sat without a break until approximately 11:55 a.m. Unfortunately, however, Mr. Hafizi was not yet finished cross-examining the complainant at that time. Because the Crown would require time to re-examine the complainant, I stopped Mr. Hafizi and advised everyone, including the complainant, that we would have to continue the cross-examination the next day.
17The complainant appeared uncomfortable with that idea and stated that she could try to come into the courtroom to complete her testimony in person in the afternoon, rather than having to come back the next day. I was as uncomfortable with that idea as she was with the thought of not finishing that day and, therefore, I insisted that she return the next morning. I adjourned for lunch and requested that the lawyers return to the original courtroom at 2:00 p.m. to discuss trial management issues. I also gave the Crown permission to speak to the complainant about the issue of her testifying in person the next day.
18Shortly after we broke for lunch, I was advised by court staff that the Crown was indicating that the complainant would not be able to continue the next day and I was asked to recall the jurors for the afternoon, if that was possible. As a result of receiving this information, I asked to reconvene with the lawyers at 1:00 p.m. to discuss the situation and, in the meanwhile, I directed court staff to determine if all of the jurors were able to return for the afternoon.
19When I met with counsel a little after 1:00 p.m., I was advised that the complainant would not be available via Zoom until 1:30 p.m. I advised the lawyers that it was my intention to try to encourage the complainant to continue. When we resumed at 1:30 p.m., one of the complainant's workers advised that the complainant was not doing well and wanted to return to her hotel room from the courthouse immediately. The worker also advised that the complainant was present off-camera.
20I then spoke to the complainant and, as discussed with counsel, advised her of my assessment of how well she was doing. Notwithstanding my encouragement, however, the complainant refused to continue, even that afternoon. Her workers confirmed that she was simply not able to continue and that she wanted to return to her home in southern Ontario immediately. Given this information, I excused the complainant.
21The next morning, I heard the Crown and the defence applications.
POSITIONS OF THE PARTIES
22The Crown submits that the accused is only entitled to a fair trial, and not a perfect one: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 194. It relies on cases I will discuss that stand for the proposition that trials can continue even where a witness fails or refuses to appear or to answer questions before cross-examination of the witness is completed.
23On behalf of the defendant, Mr. Hafizi submits that those cases are distinguishable. He submits that, in any event, the defendant in this case would be irreparably prejudiced because there were significant areas of cross-examination that he did not reach and because the jury will not be able to observe the complainant during the balance of the planned cross-examination. As a result, he submits that the trial would be rendered unfair if it continued.
24Obviously, I disagree.
ANALYSIS
25The right to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the constitutional right to make full answer and defence. It is fundamental to providing a fair trial to the accused: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41-43. However, the right to cross-examination is not absolute: Lyttle, at paras. 44-45. Trial judges have discretion to decide whether the case against an accused may proceed notwithstanding an incomplete cross-examination: R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.), at para. 22.
26The leading case on the exercise of a judge's discretion to continue a trial following an incomplete cross-examination is the decision of Cromwell J.A. (as he then was), in R. v. Hart, 1999 NSCA 45, 174 N.S.R. (2d) 165, leave to appeal refused, [2000] S.C.C.A. No. 109. In Hart, Cromwell J.A. thoroughly reviewed Canadian, English, and American authorities and articulated the modern Canadian rule, at para. 65, as follows:
In my opinion, the common law rule is that whether the trial may proceed after an incomplete cross-examination of a child witness or whether some other remedial action should be taken is entrusted to the discretion of the trial judge.
27Although Hart dealt with the incomplete cross-examination of a child complainant, it has been applied in other contexts. In Cameron, for example, it was applied by the Ontario Court of Appeal in the context of an adult witness who had become ill.
28In Hart, Cromwell J.A. identified three areas of inquiry that should govern the exercise of the trial judge's discretion in the case of a child witness who becomes unresponsive during cross-examination: (1) the reason for the unresponsiveness; (2) the impact of the witness's unresponsiveness, and (3) possible ameliorative action: Hart, at paras. 95-112. During argument, I referred to these as “the reason, the result, and the remedy”.
29I will now address these three areas of inquiry using my own short-form terminology.
The Reason
30As Cromwell J.A. noted in Hart, at para. 38, some common law jurisdictions once adopted a purely fault-based assessment when it came to the reasons behind an incomplete cross-examination. Where cross-examination had been limited due to the fault of the witness or the party calling the witness, generally speaking, this weighed in favour of striking the witness's evidence or discontinuing the trial.
31However, after reviewing several ways in which the law had evolved in analogous situations, Cromwell J.A. held in Hart that it was time for a modified approach when it came to the evidence of children. At para. 62, he wrote:
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 examination on the ability of the jury to assess the evidence.
32There is no reason to fault the complainant in this case. While she is older than the complainant was in Hart, she is still a young person. Further, cases decided after Hart have recognized that the cause of the witness's inability to continue may have as much to do with the subject matter of the witness's evidence as it does with the witness's age: R. v. T.H., 2017 ONCA 485, at paras. 39 and 44; R. v. S.M., 2024 ONSC 1126, at para. 10. The subject matter in this case would have posed challenges even for an adult witness.
33Nor is there any reason to fault the party calling her. The Crown applied for and obtained an order permitting the complainant to testify remotely.
34If any fault must be ascribed, it must be ascribed to the failure of the technology in the original courtroom and to the defence. But for the failure of the technology, it would not have been necessary to change courtrooms and there would have been no time limit on the morning of April 22. However, even with the technology issues, the time limit might not have been a problem, but for the defence. Based on Mr. Hafizi's time estimates, had he been prepared to start his cross-examination immediately on April 21, to continue until 4:30 p.m. that day, and to start earlier the next morning, it is quite possible that the cross-examination of the complainant would have been finished by noon on April 22.
35In my view, therefore, the reason for the incomplete cross-examination does not weigh much, if at all, in favour of discontinuing the trial.
The Result
36Mr. Hafizi explored the following main areas in the cross-examination he did manage to complete on April 21 and 22:
(1) the complainant's youth record;
(2) how the complainant's allegations came to the attention of the police;
(3) the complainant's evidence about the colour of the interior of the defendant's truck (she testified it was black, but the photos show it was brown);
(4) the presence in the defendant’s truck of a large green “power inverter” in the photos that was not mentioned by the complainant (but which the defendant later testified was always in the vehicle);
(5) the possibility that the encounter with the lady who used the complainant's cell phone took place at the Voyageur Inn (where the defendant testified later that he had picked up the lady on a day in the summer of 2023);
(6) details about how the complainant and the defendant consumed drugs when they were together (which Mr. Hafizi later explained was to show that the complainant was relying on information she obtained other than from personal experience):
(7) the implausibility of the complainant's evidence about the quantity of drugs she said she received from the defendant;
(8) inconsistencies between the complainant's evidence about the appearance of the defendant's penis and a photograph introduced into evidence later during the defendant's testimony (the photo shows discolouration allegedly due to a condition called “vitiligo” and allegedly shows that the penis is circumcised);
(9) the complainant's statement to the police that the defendant had no tattoos (whereas the defendant later testified and showed that he had one on his right forearm);
(10) inconsistencies between the complainant's evidence and her earlier statements about the details of what occurred in the first encounter (relating to the number of times the complainant and her friend each performed oral sex on the defendant and for how long);
(11) the “fuzzy” quality of the complainant's memories about the encounters;
(12) the fact that the complainant was untruthful when she told the police that she would have to be high to suck the defendant's penis;
(13) inconsistencies in the details about when the complainant smoked or did drugs during the second and third encounters with the defendant; and
(14) weaknesses in the complainant's evidence about the defendant ejaculating in her mouth.
37On behalf of the defendant, Mr. Hafizi submits that, because he was not able to conclude his cross-examination, he was unable to cross-examine the complainant about two further areas:
(15) inconsistencies between her testimony and her out-of-court statements about who deleted the Facebook messages; and
(16) the lengths she would go to in order to get attention.
38Mr. Hafizi also submits that his plan was to come back to all of the areas listed above at the end of his cross-examination and to confront the complainant with them while putting to her that she had made up her allegations about the defendant to gain attention from her friends and ended up being stuck with the story once it came to the attention of the police. He submits that the jury was deprived of the opportunity to see the complainant's reaction to the confrontation, thereby depriving the defendant of an opportunity that could not be remedied in any meaningful way.
39Finally, Mr. Hafizi submits that Hart and the other cases to which I have referred are distinguishable because they involved unresponsiveness, whereas this case involves an abrupt departure by the complainant, which will result in speculation by the jury that will prejudice his client.
40I am not persuaded that the effect of the unfinished cross-examination will result in irremediable prejudice to the defendant. I will begin with Mr. Hafizi's submission that this case is distinguishable.
41The decision in Hart has been applied in contexts other than simple unresponsiveness. In T.H., it was applied in the context of a complainant who simply refused to be cross-examined. As mentioned, it was also applied in the context of a witness who became ill in Cameron. In S.M., the complainant refused to continue testifying remotely after asking for an early break because she was feeling unwell. This is precisely what happened in the present case, with the exception that it was me who insisted on taking a break in this case, for reasons I have already explained.
42As I stated earlier, in Hart, Cromwell J.A. held that the primary focus in the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. In my view, the limitation on cross-examination in this case had little, if any, impact on the jury's ability to assess the complainant's evidence. I arrive at this conclusion for two reasons.
43First, by any measure, the cross-examination was near completion. As can be seen from the long list above, Mr. Hafizi had cross-examined on almost every area of the complainant's testimony upon which he sought to impeach or impugn her evidence.
44Second, with respect, I do not believe that Mr. Hafizi's planned finish to the cross-examination would have had the result he hoped for. As I told the complainant, I paid close attention to the jury as she was giving her evidence. As I also told her, I had seldom seen a complainant her age do as well as she was doing. She was considerate, candid, and articulate in her answers. She did not display any hostility towards the defendant or his lawyer. She struck me as a sympathetic witness, and I believe she struck the jury the same way. The longer Mr. Hafizi spent cross-examining the complainant, the more sympathetic she became.
45For these reasons, I do not believe that there was much, if any, impact resulting from the truncated cross-examination of this complainant.
The Remedy
46In any event, I also believe that any impact resulting from the incomplete cross-examination can be remedied in two ways.
47The first is by allowing Mr. Hafizi to tell the jury what he was planning on confronting the complainant with, had he been able to finish his cross-examination. This can easily be done here because Mr. Hafizi was planning on using the complainant's statement to the police and her preliminary hearing evidence to confront her.
48The second way to remedy any impact is to instruct the jury along the lines of the instruction given by the trial judge and approved by the Court of Appeal in T.H., at para. 47. In that case, the trial judge instructed the jury as follows (T.H., at para. 26):
Cross-examination is the vehicle or method by which counsel are able to test the evidence of witnesses. It is fundamental to our trial process. When a witness refuses to respond in cross-examination, as [the complainant] did in this case, defense counsel is deprived of that means of challenging her testimony…
You may wish to consider whether a full cross-examination of her at trial would have been effective in diminishing her credibility and raising a reasonable doubt. In any event, you should approach the testimony of [the complainant] carefully, keeping these matters in mind. In doing so, you should consider all the evidence and identify evidence that you do accept from other witnesses who were cross-examined that supports or confirms the evidence of [the complainant]. You may wish, but are not required, to identify such corroborating evidence before relying on a particular aspect of [the complainant's] evidence upon which she was not cross-examined.
49I propose to do likewise.
CONCLUSION
50For the foregoing reasons, the Crown's application to continue the trial is allowed and the defendant’s application for a directed verdict or an order declaring a mistrial is dismissed.
M. G. Ellies J.
Released: July 20, 2026
CITATION: R. v. Campbell, 2026 ONSC 4193
COURT FILE NO.: CR-26-60
DATE: 2026/07/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SHANE CAMPBELL
Defendant
REASONS FOR DECISION on application
Released: July 20, 2026