R v Durocher, 2022 NWTCA 1
[25] As this Court found in WAP at para 37: “Premature termination of cross examination is not always fatal.” While it is recognized that the “opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused”, it is not absolute: R v Lyttle, 2004 SCC 5 at paras 42-45, [2004] 1 SCR 193 [Lyttle].
[26] In situations where some direct evidence by the complainant is before the jury, the approach to be taken involves a necessary balancing in weighing the reason and impact of the premature end to cross-examination which affects the accused’s fair trial rights, and whether that impact can be ameliorated: Goodstoney at para 93 citing Hart. More specifically, as stated in Yu at para 9:
It is settled law that no breach of fundamental fairness is deemed to have occurred where cross-examination of a material Crown witness has been truncated or has indeed been lost. Where the effect of the cross-examination has been limited but not entirely negated, any inconsistencies between the evidence in chief and prior statements that could have been led from other sources and put before the jury may be sufficient.
[27] As was the case in Yu, the jury had seen the complainant testify in examination-in-chief, and some cross-examination had occurred with the jury hearing firsthand from the complainant that she had lied to police and at the preliminary inquiry. That testimony could be evaluated, as well as her failure to return to complete cross-examination in assessing her credibility and reliability. Further, the availability of “other sources” of evidence was considered by the parties in this matter, particularly by defence counsel who selected relevant excerpts of the complainant’s police statement and preliminary inquiry to be put before the jury, as it related to both establishing inconsistences and pointing to the complainant’s statement that she hit her head on the coffee table after falling, which he sought to rely on for its truth.
[28] Not only did the Crown advise it was not asking for a witness warrant, neither did defence counsel who otherwise did not apply for a mistrial, stay of proceedings, or to strike the complainant’s testimony. Rather, counsel conceded on the record that per Hart, the matter could proceed with steps taken to ameliorate the lack of full cross-examination, including by putting other relevant sources of evidence from the complainant before the jury, and giving strict warnings in the charge about the weight of the complainant’s evidence given her decision not to reattend court. While counsel’s position is not determinative and it remains the responsibility of the trial judge to carefully weigh the circumstances in a given matter, the lack of objection to this trial’s continuation was significant and, in our view, correct.
[30] While the appellant seems to argue that the burden of proof was misplaced in this case, and that the trial judge did not deal with “the reason for the unavailability of the witness”, we see no proof of any such errors. The trial judge gave detailed reasons under each of the Hart factors, including her consideration that the premature end of the complainant’s cross-examination was because “J.S. did not come back to court... contrary to the expressed direction” to do so. There was no error in the trial judge’s finding that the complainant’s failure to reattend must be viewed in the context of a child witness who she reasonably found had a “troubled life” and had “struggled through her evidence, in particular when she had to describe the details of the sexual contact she said the accused had with her”. As the trial judge correctly found, the case law has moved away from the notion of “fault” when looking at the evidence of a young witness. As stated in Hart at paras 59, 62:
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.
See also R v TH, 2017 ONCA 485 at paras 43-44, 352 CCC (3d) 47 [TH].
[31] As in TH, the trial judge sought to properly balance the fair trial interests of the appellant and the difficult situation of this young complainant. In so doing, she did not unduly focus on the trauma of the sexual allegations or defence counsel’s cross-examination, but rather considered the complainant’s undeniably difficult background, and the entire context of how these charges came to be laid, which included that the police did not seek out medical attention or other support after her disclosure. The trial judge’s decision to proceed with the admission of excerpts of the complainant’s police statement and preliminary inquiry testimony rather than a witness warrant, stuck an appropriate “balance between the accused’s right to make full answer and defence and the societal need to protect the most vulnerable of complainants, children”, and is owed significant deference.
[34] As to any remaining argument related to the trial judge’s instructions to the jury as to how the prior statements of the complainant could be used, both for inconsistencies and for the truth of their contents, again defence counsel had requested this instruction at trial, and raised no concerns following the charge. While again, counsel’s trial position is not determinative, it was a request made for a specific tactical purpose related to the complainant’s statement about hitting her head. Beyond this however, and as Hart deals with extensively, there are many exceptions to the hearsay rule, many of which exist to admit evidence as truth even though cross-examination of the statement maker is not possible. One unifying element in most of these exceptions is one of “necessity” due to the unavailability of the witness, including the ability to cross-examine. As Hart states at paras 46-48, under the principled approach to the hearsay rule, necessity is to be given a flexible definition, and references the case of R v KGB, 1993 CanLII 116 (SCC), [1993] 1 SCR 740, 73 CCC (3d) 257, where the “admission of a witness’ prior inconsistent statement as truth of its contents was found to be ‘necessary’ even though the witness was available and testifying.” Here, all parties agreed the admission of the complainant’s previous evidence was necessary to preserve the appellant’s fair trial rights.
[35] The trial judge otherwise appropriately interwove various cautions about the complainant’s evidence into her instructions to the jury about how to assess credibility and reliability. She was clear that as the complainant had admitted to not telling the truth, her evidence was to be approached “with caution”. Any argument that the jury charge did not assist in ameliorating the loss of full cross-examination or amplified the prejudice to the appellant, is without merit.
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