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.”