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| Patrick J Ducharme |
The Court of Appeal for Québec in 2007 considered an appeal by the Crown from a decision dismissing its application for certiorari challenging a preliminary inquiry Judge’s decision to allow the accused’s counsel to cross-examine young complainants, aged fourteen and ten.1 The accused was charged with sexual assault and sexual touching. The Crown had resisted calling the complainants at the preliminary inquiry, suggesting that having them testify would be harmful to each because they were “disturbed” as a result of the events that led to the charges.
The preliminary inquiry Judge ruled that there were no exceptional circumstances justifying the refusal to allow cross-examination and ordered the complainants to testify in camera via closed-circuit television. The Crown challenged by way of certiorari. The Superior Court dismissed the Crown’s application and the Crown appealed to the Court of Appeal.
The Québec Court of Appeal found that the principles of natural Justice had not been infringed by the preliminary inquiry Judge’s decision to permit cross examination in camera and via closed-circuit. The court found that counsel for the accused, despite these amendments, was permitted to cross-examine the witnesses. The court found that Parliament intended to confer upon Judges a broader discretion, allowing them to take into account the appropriateness of having witnesses appear and be cross-examined.
The court specifically approved of the preliminary inquiry Justice’s decision supporting the right to cross-examination as an integral part of the right to make “full and complete defence”, and, the Justice’s comments that only a serious reason would justify setting the right to cross-examine aside. Analysis of the evidence led the court to conclude that there were no exceptional circumstances that could have justified a refusal to allow the cross examination.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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