R. v. Hart, 1999 NSCA 45
CONCLUSIONS:
It is now useful to synthesize the principles emerging from the common law and Charter authorities to be applied when the accused claims that the trial has become unfair or to have been denied the right to make full answer and defence because a child witness is unresponsive during portions of the cross-examination. The starting point is that there is no short, dispositive “test” for whether these rights have been denied or to determine the proper response. These are matters for the discretion of the trial judge taking account of all relevant considerations.
In considering whether the trial is unfair, or the right to make full answer and defence has been limited, the factors which the trial judge should consider may be grouped under three main headings. Without attempting to be exhaustive or definitive, it may be helpful to outline briefly some of the relevant matters under those headings.
A. The reason for the unresponsiveness:
The reason for the unresponsiveness is somewhat analogous to the necessity criterion for the admissibility of hearsay evidence. Before evidence is admitted without a full opportunity to cross-examine, there should be a valid and important reason for doing so. This suggests that if the unresponsiveness could have been avoided by reasonable action or if evidence of the same value is or could have been available in some other way and within a reasonable time, the evidence generally should not be admitted without full cross-examination.
The opportunity to cross-examine includes, at a minimum, the right to have answers that are responsive to the questions asked. The court must carefully consider any conduct of the witness or the party calling the witness which has the effect of frustrating the opportunity to cross-examine. In the case of child witnesses, the court may consider whether the unresponsiveness results from the nature of the process and whether appropriate steps have been taken to reduce the embarrassment and discomfort of testifying.
In this case, none of the procedures available under the Criminal Code to reduce the difficulty of testifying for children was used. Apparently video-taping was not readily available to the police. The record indicates that there was some discussion of the use of a screen at a pre-trial conference, but one was not used. No support person, as permitted by s. 486(1.2) of the Code, sat with the witness.
These issues were not explored at trial or on appeal and I will, therefore, not address them further for the purposes of this case. Moreover, in this case, there is no indication in the record that the witness was attempting to thwart full cross-examination. The witness was reluctant and frequently unresponsive during both examination-in-chief and cross-examination. I will say, however, that where a child witness is unable or unwilling to testify during cross-examination, the trial judge is entitled to consider, within the limits of the evidence before the court, whether the failure to take steps to reduce the difficulty of testifying has contributed to the unresponsiveness. If it has, this will be a factor tending toward a finding that the trial has become unfair, at least if the difficulty that arises was reasonably foreseeable.
Similarly, there may be steps available to cross-examining counsel to help elicit answers. These include requesting the trial judge to direct the witness to answer or requesting an inquiry as to why the witness is not responding. The trial judge may be justly reluctant to take such steps of his or her own motion because counsel’s approach may result from a tactical decision. Where no request for the judge’s intervention is made by counsel, this is a factor tending toward a finding that the trial has not become unfair as a result of the unresponsiveness. In this case, no such steps were requested by defence counsel and, in my opinion, the trial judge should not be faulted for failing to intervene more forcefully absent such a request.
The manner of questioning may contribute to the difficulty. If questions are not posed in a clear and age-appropriate manner, the unresponsiveness may be attributable, in whole or in part, to the manner of questioning. If the trial judge concludes that this is the case, it will be a factor tending against a finding that the unresponsiveness has rendered the trial unfair. In this case, some of the questions in cross-examination were not clear or age-appropriate although there were many other questions not responded to which were both clear and age appropriate.
B. The Impact of the Unresponsiveness:
The central considerations for the trial judge under this heading are the importance of the evidence to the case and whether there is a satisfactory basis, notwithstanding the unresponsiveness, upon which the trier of fact can evaluate the evidence.
The trial judge should consider the importance of the evidence to the case. The more important the evidence to the prosecution’s case, the more reluctant the trial judge should be to allow it to be given without full cross-examination.
The trial judge should also consider what other bases there may be to evaluate the evidence of the witness. The presence of the witness, which allows the jury to see and hear the witness, will generally be an important example. The opportunity of cross-examining counsel to put prior inconsistent statements before the trier of fact is another. The extent to which there is other evidence in the case which assists the evaluation may be a third consideration.
The trial judge should also consider the extent and effect of the cross-examination that has been conducted as well as counsel’s submissions on any areas of cross-examination that were not pursued because of the unresponsiveness. The onus is on cross-examining counsel to place those submissions before the trial judge.
The trial judge should also make a common sense and realistic assessment of the likely impact that the cross-examination would have had if it had been possible to continue. While this is a difficult question, involving, to some extent, speculation about what a witness would or would not have said, the trial judge should do his or her best to make this assessment in light of the particular witness and all the other circumstances of the case. This assessment should be made with due regard to the difficulty of the task and with great respect for the importance of the opportunity to cross-examine; in short, the judge should be slow to conclude that further cross-examination would have been ineffectual.
In making this assessment, the trial judge should consider the special nature of cross-examination of a child. Where the witness is unresponsive on the stand, it may be appropriate to compare the effect of the unresponsiveness with a situation in which the witness simply professes not to remember or not to know. The greater confidence that the judge has that further cross-examination would have been ineffectual, the less inclined the judge should be to find that the trial is unfair. In this case, the witness was a key witness for the prosecution and the case turned primarily on the assessment of his credibility. The jury had the opportunity to observe him while testifying and to assess the impact of his unresponsiveness on his credibility. There was other evidence in the case which the jury may have found helpful in considering this question. Evidence of prior inconsistent statements was placed before the jury and the witness’s unresponsiveness when faced with these was not in any way prejudicial to the defence. It was not suggested by defence counsel that there were any areas other than those appearing in the record which were left unexplored because of the unresponsiveness.
C. Possibilities of Ameliorative Action:
Before concluding that the trial has become unfair or whether there has been a denial of the right to full answer and defence, the trial judge should consider whether the limitation on cross-examination can be remedied or at least ameliorated.
For example, the trial judge should consider whether the difficulty with the witness is likely to be permanent. If there is a reasonable prospect of the witness becoming responsive in a reasonable period of time, consideration should be given to postponement of the trial, having due regard, of course, to the accused’s right to and interest in a timely trial. If the witness is not crucial to the Crown’s case in the sense that the Crown would proceed even without the witness’s evidence, consideration may be given to striking the witness’s evidence or, if necessary, declaring a mistrial and proceeding afresh without the witness.
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