A new trial for a man convicted of sexual interference on a child was ordered by the Quebec Court of Appeal after it held that the trial judge’s refusal to allow the re-opening of the complainant’s cross-examination infringed his right to make full answer and defence.
In a decision brimming with guidance over the scope of sections 10 and 11 of the Canada Evidence Act to dispel “some confusion” around cross-examinations on prior inconsistent statements, the Quebec Appeal Court held that despite the impact of a new trial on the complainant, an autistic child, who will have to testify again, “no other outcome can be considered” when the right to a full answer and defence and the right to a fair trial have been infringed.
“My first reaction is to deplore a reflex on the part of some judges to bow to public pressure in matters of sexual assault, especially when the complainant is a young person,” remarked Jean-Claude Hébert, a prominent Montreal criminal lawyer. “The Court of Appeal, firmly based on the current state of the law, correctly criticizes the trial judge for having erred in the exercise of her discretion regarding the right to a fair trial, in which case an accused person must be allowed to make a full answer and defence.”
The appellant, whose identity cannot be revealed because the case involves a child, was sentenced to more than 48 months imprisonment for sexual interference on his autistic son, and six months to be served concurrently for possession of child pornography, a charge he plead guilty to. The father appealed his sexual interference conviction, maintaining that Court of Quebec Judge Rosemarie Millar erred by refusing to allow him to put into evidence alleged numerous contradictions between the complainant’s testimony at trial and his videotaped statement at the police station, an error that deprived him of his right to make a full answer and complete defence and to a fair trial.
The Appeal Court, in a decision that followed guidance from several rulings by the Supreme Court of Canada, including R. c. F. (C.C.),  3 R.C.S. 1183, held that the trial judge did not follow the approach espoused by case law. Judge Millar held that evidence of prior inconsistent statements must absolutely be filed during cross-examination. Judge Millar also held that the witness must be systematically confronted with each and every prior inconsistent statement in a rigorous and precise manner before evidence of it can be presented – a clear indication that there “appears” to be some confusion about the rules surrounding cross-examination on a prior inconsistent witness statement and the scope of s. 10 and 11 of the Canada Evidence Act, according to the Quebec Appeal Court. The “misunderstanding” in part stems from a misinterpretation of the marginal notes in ss.10 (Cross-examination on previous statements) and 11 (Cross-examination on previous oral statements), added Quebec Appeal Court Justice Guy Cournoyer in in M.D. c. R., 2022 QCCA 915 in a decision. Both Justices Mark Schrager and Stephen Hamilton concurred.
“The Appeal Court really delved into the issue, reviewing procedures and how to go about it,” noted Véronique Talbot, a Montreal criminal lawyer who successfully plead the case. “The Appeal Court provides different options that trial judges have to test contradictions that may arise. The aim of all of this is to bear in mind that the accused has the right to a fair trial, and that contradictions are important and that there are several ways of proving these contradictions.”
There has been some dispute in the past over the relationship between ss. 10 and 11, with some contending that s. 10 applies to cross-examination to proof of prior inconsistent statements in writing while s. 11 applies to inconsistent oral statements. But the Appeal Court, endorsing guidance from doctrine and particularly from the Ontario Appeal Court decision in R. v. Pargelen, 1996 CanLII 420 (ON CA), found that s. 10 applies to prior inconsistent statements that are written or otherwise recorded while proof of prior inconsistent statements by independent evidence – regardless of its form – is governed by s. 11.
In the interest of fairness to the witness, where counsel intends to prove a prior inconsistent oral statement, counsel must during cross-examination, to the extent possible, advise the witness of the time and the place where the statement was made, held the Appeal Court. The witness must then be given an opportunity to fully understand the alleged inconsistency and, if necessary, refresh the witness’s memory, said Justice Cournoyer. The witness then must be allowed to explain himself before evidence of the inconsistency, which includes lack of recollection, is presented to the judge, added Justice Cournoyer. “Cross-examination must be fair to a witness who has made previous statements that are inconsistent with the evidence given at trial: the witness must be given the opportunity to explain,” held Justice Cournoyer.
Once the general requirement of procedural fairness to the witness has been satisfied, evidence of inconsistent statements may be adduced in accordance with the requirements established by the Quebec Appeal Court in R. c. Mandeville, 1992 CanLII 2855 (QCCA). In Mandeville, the Appeal Court held that s. 11 “cannot impose an obligation on a party to establish evidence of the prior statement only in cross-examination.” Besides at the cross-examination stage, such evidence may be introduced at another stage of the trial, in accordance with the general rules of evidence and procedure governing the conduct of the trial. The Appeal Court delineated in Mandeville a test that proof may be given that the witness did in fact make the statement in cases if five criteria were met:
(1) where a witness is cross-examined as to a former statement made by him relative to the subject-matter of the case;
(2) where the statement is inconsistent with his present testimony;
(3) where the witness does not distinctly admit that he did make the statement;
(4) where the circumstances of the supposed statement, sufficient to designate the particular occasion, were mentioned to the witness; and
(5) where the witness was asked whether or not he did make the statement.
In this case since the complainant had been confronted in a “satisfactory and fair manner” over the existence of some inconsistent statements, which he denied or could not recall, the Mandeville test had been met. The appellant should have therefore been able to introduce the relevant excerpts of the the video-recording by filing them after the reopening of the cross-examination, held the Appeal Court. The trial judge’s assessment of the credibility of the main witness could not be made “in light of an incomplete record and without the benefit of the best evidence (the video recording)” that the defence sought to introduce into the record as part of the defence case, added Justice Cournoyer.
There was an option that was available to the trial judge if she still did not want to call the child to the stand, said Talbot. “There’s a simple solution, and that is to put the video in evidence for the purpose of identifying the contradictions, something that Mandeville allows. That could have meant that the lawyer could have raised the contradictions, the statements and without the child necessarily coming back.”
The Appeal Court reiterates the obligation of trial judges to treat complainants fairly, without restricting the fundamental rights of the accused, noted Hébert. “Justice Cournoyer pointed out that, in the case of an application to reopen an investigation, the Supreme Court recognised the primacy of the fundamental rights of the accused.” The SCC, added Hébert, also held that every accused has the right to present such evidence that will enable him to establish a defence or to challenge the prosecution’s case.
This story was originally published in The Lawyer’s Daily.