Comment un juge peut gérer l'incapacité d'une victime à poursuivre le contre-interrogatoire qu'elle subit

R. v. T.H., 2017 ONCA 485

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[36]      Second, against the backdrop of the court’s statement in Lyttle, at para. 45, that “the right of cross-examination itself is not absolute”, there is a well-established test for determining whether a cross-examination of a witness impeded by unresponsiveness has such a serious impact on the accused’s ability to make a full answer and defence as to render the trial unfair.

[37]      The leading case is R. v. Hart, (1999), 1999 NSCA 45 (CanLII), 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.

[38]      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), 2006 CanLII 16078 (ON CA), 208 C.C.C (3d) 481 (Ont. C.A.); and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515.

[39]      The first factor tells in favour of the appellant. The complainant’s unresponsiveness was caused by the subject matter of her evidence; it was not caused by any improper defence action.

[40]      The second factor favours the respondent. Obviously, the complainant was the main Crown witness. The absence of an opportunity to cross-examine her clearly removed a potentially important aspect of the defence case. On the other hand, the jury had seen the complainant testify for some time and then saw her become unresponsive. They also had the transcript and audiotape of the preliminary inquiry, where the complainant had testified, including cross-examination. They could evaluate the impact of her unresponsiveness on her credibility and reliability. Both of these aspects of her testimony were before the jury. Moreover, perhaps not surprisingly for an eight year old, her two statements to police which were admitted into evidence contained many inconsistencies.

[41]      The third factor, in my view, is crucial. In Lyttle, the court said, at para. 45:

Just as the right of cross-examination itself is not absolute, so too are its limitations. Trial judges enjoy, in this as in other aspects of the conduct of a trial, a broad discretion to ensure fairness and to see that justice is done – and seen to be done.

[42]      In the present case, the trial judge decided that the unresponsiveness of an 11 year old witness in a cross-examination relating to allegations about sexual abuse by her mother’s boyfriend was not fatal to a fair trial. Accordingly, he did not declare a mistrial (he was not asked to). Nor did he grant the stay sought by the accused long after the complainant had finished her testimony and after many other witnesses had also testified without objection.

[43]      Instead, the trial judge sought to balance and accommodate the fair trial interests of the accused and the difficult situation of the young complainant. In doing so, he was, in my view, cognizant of something else Cromwell J.A. said in Hart, at pp. 399 and 400:

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.

…

[F]lexibility 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.

[44]      In the particular circumstances of this case, the trial judge was correct to conclude that the complainant’s inability to participate in cross-examination was consistent with trauma and needed to be accommodated in a manner that struck a balance between the accused’s right to make a full answer and defence and the societal need to protect the most vulnerable of complainants, children. On my reading of the record, the complainant was in no position to continue with cross-examination and it was not clear that she would have been able to do so in the future. In such a circumstance, declaring a mistrial would not have been appropriate, even if defence counsel had requested it.