R. v. Dalley, 2018 NLSC 124

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Dalley , 2018 NLSC 124 Date : June 5, 2018 Docket : 201604G0233 Her Majesty The Queen v. Justin Dalley Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Before: Justice George L.

Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: February 20 and 21, 2018; March 28, 2018; April 4, 2018; April 12, 2018; and May 25, 2018 Date of Oral Judgment: June 5, 2018

Summary: The trial of a charge against the Accused under section 271(1) of the Criminal Code had to be adjourned during the cross-examination of

the Complainant. The Complainant failed to show up for trial continuation and the Crown advised the Court she wanted nothing furtherto do with the matter. The Crown did not want the Court to compel the Complainant to attend court. The Court was left to determinewhat should happen as a result of the Complainant failing to show up for trial continuation and related thereto a request by the Crown toadmit the preliminary inquiry evidence of the Complainant pursuant to section 715(1) of the Criminal Code.

The Court determined thatthe preliminary inquiry evidence of the Complainant ought not to be admitted pursuant to section 715(1) and that the appropriate remedywas to exclude the evidence of the Complainant given at trial. Appearances: Brenda Duffy/Adam J. Sparkes, Q.C. Appearing on behalf of Her Majesty The Queen Robby D. Ash Appearing on behalf of Justin Dalley Authorities Cited: CASES CONSIDERED: R. v. Khan, (SCC), [1990] 2 S.C.R. 531; R. v. Khelawon, 2006 SCC 57; R. v. Hart, 1999NSCA 45; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v.

Potvin, (SCC), [1989] 1 S.C.R. 525; R. v.Michaud (2000), (NB CA), 144 C.C.C. (3d) 62, 45 W.C.B. (2d) 420 (N.B. C.A.); R. v. Rogers (1997), (SK CA), 35 C.C.C. (3d) 50, 1 W.C.B. (2d) 435 (Sask. C.A.); R. v. Druken (1995), 135 Nfld. & P.E.I.R. 338, (Nfld. S.C. (T.D.)); and R. v. Hawkins (1995), (ON CA), 22 O.R. (3d) 193, 96 C.C.C. (3d) 503 (Ont. C.A.). STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; and Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11. REASONS FOR JUDGMENT Murphy, J.: introduction and background [1] This case involves a single charge under section 271(1) of the Criminal Code, R.S.C. 1985, c. C-46 against the Accusedinvolving the Complainant, K.B., who was 19 years of age at the time of trial. The trial of the charge against the Accused commenced onFebruary 20, 2018 and continued on February 21, 2018. The Complainant was the first witness called by the Crown. She testified viaclosed-circuit television as a result of an order made by this Court pursuant to

section 486.2(2) of the Criminal Code on an application bythe Crown that was heard at the commencement of the trial. The Crown had also applied for an order under

section 486.1(2) of theCriminal Code allowing the Complainant to have the benefit of a support person while she testified; however, the Crown subsequentlyadvised the Court that the Complainant did not want a support person with her while she testified. [2] The Crown completed its direct examination of the Complainant around mid-morning on the second day scheduled for trial.The Defence then began its cross-examination of the Complainant.

The cross-examination proceeded slowly in part due to the fact thatthe Complainant was in another room testifying which necessitated delays caused by having to bring documents, which counsel wantedto refer the Complainant to, from the courtroom to the room in which the Complainant was located. The slow pace of cross-examinationwas also in part due to an issue which arose about the accuracy of the transcripts of a recorded statement given by the Complainant to thepolice. Near the end of the second day scheduled for the trial and while she was still under cross-examination, the Complainant becameupset.

It was evident at this point that the trial was not going to be completed in the allotted time and that a further date or dates would berequired. The following exchange occurred: . . .

MS. B.: I just wanna go home. I don’t wanna come back here. It’s not gonna be over with today. THE COURT: Ms. Duffy. MS. DUFFY: May we take a break? THE COURT: It’s 4:23. MS. DUFFY: Yes. MR. ASH: I’m not likely going to be finished in seven minutes. THE COURT: I didn’t expect you would be. MR. ASH: And I would imagine Ms. Duffy -- MS. DUFFY: I have some re-direct. MR. ASH: -- would have some re-direct as well. I’m -- THE COURT: So -- MR. ASH: I’m sorry. THE COURT: Okay counsel, we’re going to adjourn for today. Ms. B. -- MS. B.: Yes. THE COURT: -- we’re going to adjourn for today okay. MS. B.: Okay.

THE COURT: Now I have to tell you that you’re still under cross-examination okay. And you will have to come back again. MS. B.: Can I drop the charges? I don’t want I don’t wanna come back here. I don’t wanna ruin any more of my life. I can’t move on with my life. I can’t go back to school until I get this over with. I don’t want to be waiting another year to go back to court. THE COURT: Ms. B., that’s not something that the Court has control over. All I can say to you today is I is that for a number of reasons

we’re not going to be able to finish today. You are in the middle of cross-examination and that means that after you leave here todayyou’re not going to be able to discuss this was anybody – your testimony today or what happened. You can’t discuss it with anybodyokay. MS. B.: Yes. . . . [3] I then scheduled the trial to continue on March 28 and 29, 2018. When the trial was ready to resume on March 28, 2018, theComplainant did not appear. The Crown advised that it did not want the Court to issue a warrant so as to compel the Complainant toattend court.

The Crown on this date advised the Court of the following: . . . MS. DUFFY: I can tell the Court. I can tell that she doesn’t want to have anything to do with it. She doesn’t have anything left. Shedoesn’t want any more to do with this. That’s what I can tell the Court. THE COURT: The Crown has decided it does not want to use the force of a court order to require her to attend? MS. DUFFY: . . . Crown does not intend to add to that emotional upset by having her arrested and brought in under force.

It’s not theCrown’s interest to further upset her and that’s obviously an extremely it would be an extremely rash or violent thing to have happen toher if she was brought in under arrest. . . . [4] The Court heard submissions from both Crown and Defence as to what should happen as a result of the Complainant notappearing for the continuation of cross-examination. I then reserved my decision and advised the parties I would give a decision on April12, 2018.

Prior to completing my decision, the Crown commenced an application seeking to have the preliminary inquiry evidence of theComplainant admitted at the trial on the basis of the principled approach to the hearsay rule and the decisions in R. v. Khan, (SCC), [1990] 2 S.C.R. 531 and R. v. Khelawon, 2006 SCC 57. This application was scheduled for hearing on April 4, 2018and at that time the Crown advised that it was content to have it heard after I gave my decision on what should happen as a result of theComplainant not appearing on March 28.

However, the Crown advised it wished to make further submissions on the issue of whatshould happen as a result of the Complainant not appearing for trial continuation. I subsequently heard further submissions from bothCrown counsel and Defence counsel. [5] Essentially, the Crown changed its submission in one area.

Namely, it argued that an option open to the Court as a result ofthe Complainant not appearing was to admit her testimony from the preliminary inquiry pursuant to section 715(1) of the Criminal Code.The Crown in its submissions on March 28, 2018 had taken the position that section 715(1) was inapplicable and that the only way thetestimony of the Complainant from the preliminary inquiry could be entered was with the consent of both parties.

Defence counsel atthat time had indicated he was not prepared to consent to the admission of the evidence of the Complainant from the preliminary inquiry. [6] As a result of the new issues argued on April 4, 2018, I was not ready to give a decision on April 12, 2018 as previouslyscheduled.

Thus, when the matter was called on April 12, I rescheduled my decision for May 25, 2018. [7] On May 11, 2018, the Crown filed another application which was in essence an application to reopen the voir dire on theissue of the Crown’s request that the Complainant’s evidence from the preliminary inquiry held in this proceeding be admitted at trial.This application was heard on May 18, 2018 and my decision reserved until May 25, 2018. On May 25, 2018 in an oral decision, I deniedthe Crown’s request to reopen the voir dire.

I then rescheduled my decision on what should happen as a result of the Complainant failingto appear for continuation of the trial and the Crown’s request to have her evidence from the preliminary inquiry admitted at trial to June5, 2018. issue [8] The issue I must decide is what should happen, if anything, as a result of the failure of the Complainant to show up for thecontinuation of the trial of the Accused and related to this the request of the Crown to have the evidence of the Complainant from thepreliminary inquiry admitted at trial under section 715(1) of the Criminal Code. position of the parties [9] Defence counsel took the position that the failure of the Complainant to show up for trial continuation amounted to aviolation of the right of the Accused to make full answer and defence.

He argued that the appropriate remedy is either a judicial stay ofproceedings or the exclusion of the evidence of the Complainant.

[10] Crown counsel argued that the right to cross-examine is not limitless and that in this case, given the cross-examination that hadalready occurred, I should deem cross-examination to have been completed.

The Crown argued that I simply carry on with the trial.Alternatively, the Crown argued there were less severe remedies that were more appropriate than a judicial stay or the exclusion of theevidence such as affording the evidence of the Complainant less weight or admitting the evidence of the Complainant from thepreliminary inquiry pursuant to section 715(1) of the Criminal Code. analysis [11] I was somewhat surprised that neither counsel was able to point to any case which had previously dealt with a factual situationwhere a Crown witness while under cross-examination failed to show up for trial continuation.

I would think that such a scenario wouldhave been previously encountered. It may be that in the past the Crown would either have sought a warrant compelling the witness toappear or alternatively opted not to proceed any further with the prosecution, neither of which would likely have resulted in a reportedcase. In any event, the Crown in this situation does not want the Court to issue a warrant and believes it should be able to continue withthe prosecution of the Accused. [12] The question to be addressed is whether the Accused’s right to a fair trial guaranteed by

section 11(

d) of the Canadian Charterof Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”)or his right to make full answer and defence guaranteed by

section 7 of the Charter has been infringed. If there has been an infringementof either of these Charter rights, the next question to be addressed is that of remedy. [13] In terms of how these questions should be examined, I find the approach of Cromwell, J.A. (as he then was) in R. v. Hart, 1999NSCA 45 to be of assistance.

In that case, the main issue on appeal was whether the trial was unfair because one of the complainantswas unresponsive during portions of the cross-examination. [14] At the outset of his analysis, Cromwell, J.A., who was writing for the Court of Appeal, said as follows at paragraph 19: 19 The right to cross-examine is a cornerstone of the adversarial trial process. It is an important vehicle for the discovery of truth and iscentral to our understanding of fair procedure. However, even the most important rights have limits.

As the Charter of Rights andFreedoms makes clear, our constitutionally guaranteed rights are fundamental, but they are not absolute. [15] Cromwell, J.A. adopted a two-step approach in his analysis of the issue under consideration in Hart. At paragraphs 21 - 23 hesaid: 21 The appellant alleges a breach of his Charter rights to a fair trial guaranteed by s. 11(

d) and to make full answer and defenceguaranteed by s. 7. The analysis required to consider this submission has two steps. The authority of the trial judge to allow the trial tocontinue despite the witness's unresponsiveness during cross-examination is founded in the common law.

The first question must be,then, whether the trial judge properly applied the common law rule relating to the admission of the evidence of a witness who becomesunable or unwilling to respond to questions during cross-examination. 22 The second step requires the assessment of that rule and the way it was applied in this case in light of the Charter. Where, as here, thecommon law rule confers a discretion, that discretion cannot, of course, be exercised so as to infringe the Charter. Both the rule itself andthe exercise of discretion pursuant to the rule must operate within the boundaries set by the Charter.

If the rule itself does not observethose limits, it should, if possible, be reformed by judicial decision so that it is consistent with Charter values; if it is the exercise of thediscretion conferred by the rule, rather than the rule itself, which fails to respect the Charter, such exercise of discretion should be setaside as an error of law: see Dagenais v. C.B.C., (SCC), [1994] 3 S.C.R. 835, per Lamer, C.J.C. for the majority at p.874-6; R. v.

Salituro, (SCC), [1991] 3 S.C.R. 654 per Iacobucci, J. at p. 674. 23 Therefore, it is first necessary to identify and describe the common law rule applicable to the situation facing the trial judge. Havingdone so, both the rule and its application here must be assessed for their compliance with the Charter. [16] Later in his reasons, Cromwell, J.A. outlined his conclusion respecting the common law rule in Canada applicable to situationswhere a child witness is unable or unwilling to complete cross-examination.

At paragraphs 64 and 65, he stated: 64 Some of the older common law authorities suggest that if the inability to cross examine the witness is the fault of the witness or theparty calling the witness, the evidence-in-chief should be struck. I am not persuaded, however, this is an appropriate rule to apply to thecase of a child witness, particularly where there has not been a complete inability to cross-examine.

Rules of evidence and trial procedureneed to be applied to child witnesses with flexibility and common sense and such a rule is inconsistent with that approach. 65 In my opinion, the common law rule is that whether the trial may proceed after an incomplete cross-examination of a child witness orwhether some other remedial action should be taken is entrusted to the discretion of the trial judge.

That discretion is to be exercisedtaking into account the various factors discussed in the preceding sections with a view to ensuring both a fair trial for the accused andwith due regard for the pursuit of truth. [17] Cromwell, J.A. then went on to consider whether the common law rule in Canada and the exercise of judicial discretionprovided for by that rule passed Charter scrutiny. [18] He referred to the Supreme Court of Canada decision in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151 and basedon it said at paragraphs 67 - 69:

67 Accordingly, to determine whether the limitation on cross-examination that has occurred in this case was contrary to the Charter, it isnecessary to consider not only the "related rules which our legal system has developed" but then to go on to consider those rules in lightof the purposes of the Charter generally, the purpose of the right in question and the need to reconcile this right with others guaranteed inthe Charter. 68 There is no doubt that a full opportunity to cross-examine adverse witnesses is a principle of fundamental justice and an aspect of theright to make full answer and defence.

It is also clear, however, that the Charter does not guarantee unlimited and effective cross-examination. For example, many common law and statutory hearsay exceptions limit the right to cross-examine but are not, for thatreason alone, inconsistent with either of these Charter rights. 69 This point is illustrated by two decisions of the Supreme Court of Canada. The first is R. v. Potvin, (SCC), [1989] 1S.C.R. 525, a case which I shall discuss in more detail later in these reasons.

The issue, simply put, was whether the Criminal Codesection permitting use of a witness's preliminary inquiry evidence at trial, when the witness refused to testify at trial, limited theaccused's rights under ss. 7 or 11(d). The Court acknowledged that it is a principle of fundamental justice that generally the accusedshould have a full opportunity to cross-examine an adverse witness: at 544.

However, the Court noted that the scope and limits of thisprinciple must be anchored in the basic tenets of our justice system, which include the common law principles of evidence: at 541. [19] Cromwell, J.A. concluded that there was no short, dispositive test for determining whether a trial had been rendered unfair orwhether the right to make full answer and defence had been infringed in a situation where a child witness was unresponsive duringportions of the cross-examination.

Instead, he concluded that these were matters for the discretion of the trial judge taking into accountall relevant considerations. [20] In exercising his or her discretion, Cromwell, J.A. said that the factors to be considered could be grouped under three mainheadings, namely: a. the Reason for the Unresponsiveness; b. the Impact of the Unresponsiveness; and c.

Possibilities of Ameliorative Action. [21] While Cromwell, J.A. was dealing with a case involving a child witness and specifically framed his conclusions and suggestedapproach in terms of cases involving a child witness, I am of the view that these conclusions and suggested approach are helpful in termsof situations involving non-child witnesses as is the case here. [22] I will now turn to an analysis of the three categories of factors identified by Cromwell, J.A. as they apply to the facts of thiscase.

In terms of the reason for the unresponsiveness, Cromwell, J.A. said at paragraphs 96 and 97: 96 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.

Thissuggests that if the unresponsiveness could have been avoided by reasonable action or if evidence of the same value is or could havebeen available in some other way and within a reasonable time, the evidence generally should not be admitted without full cross-examination. 97 The opportunity to cross-examine includes, at a minimum, the right to have answers that are responsive to the questions asked. Thecourt must carefully consider any conduct of the witness or the party calling the witness which has the effect of frustrating theopportunity to cross-examine.

In the case of child witnesses, the court may consider whether the unresponsiveness results from thenature of the process and whether appropriate steps have been taken to reduce the embarrassment and discomfort of testifying. [23] In this case, we are not dealing with an unresponsive witness. Instead, we have a witness who decided that she no longerwanted to take

part in the trial. The witness in this case is the Complainant and she stated to the Court on February 21, 2018 when thecontinuation of trial was being scheduled that she did not want to come back. She subsequently told the Crown that she was not comingback and that she wanted nothing further to do with this matter.

The Crown decided it did not want to seek a warrant compelling theComplainant to appear. [24] In these circumstances, can it be said that there is a valid and important reason for the Complainant not being present for trialcontinuation and, in particular, continuation of her cross-examination by Defence counsel? Crown counsel invited me to infer that it wasobvious that the Complainant was having significant emotional difficulty in testifying about a traumatic event, namely the sexual assaulton her by the Accused.

The Crown argued that therefore there is a very good explanation for why the Complainant did not appear forcontinued cross-examination. [25] While there is no doubt that I am able to conclude that the Complainant became emotionally upset during cross-examination, Ibelieve it would be an error for me at this juncture to reach any conclusion as to the reason for her becoming emotionally upset. It mustbe remembered that while the Complainant testified in direct examination about an incident of sexual assault, the position of the

Accused, as put forward to the Court by his counsel, is that the incident did not happen. In such circumstances, I do not believe it would be appropriate for a trial judge to draw any conclusions as to the reason the Complainant became upset based on only hearing the evidence of the Complainant on direct examination and part of her evidence on cross-examination. To draw the inference the Crown has suggested would be in essence to decide that the act alleged by the Crown has been proven.

As a result, I do not think it would be appropriate for a trial judge to conclude in circumstances such as these before me that there is a valid and important reason for the Complainant not showing up for trial continuation. [ 26 ] Other factors which Cromwell, J.A. suggested should be examined when looking at the reasons for the unresponsiveness are whether appropriate steps were taken to reduce the embarrassment and discomfort of testifying and the manner of questioning.

These are factors worthy of consideration as well in a case such as this where the witness fails to appear as opposed to a witness being unresponsive. In this case, the Complainant was testifying by closed-circuit television and could have had the benefit of a support person but declined. Thus, significant steps were taken to reduce the embarrassment and discomfort of testifying.

The fact such steps were taken would tend to support the view that the evidence should not be admitted where there was not a full opportunity to cross-examine. [ 27 ] Similarly, if the manner of questioning may have contributed in whole or in part to the Complainant not appearing, such as if the cross-examination was aggressive to the point of almost being abusive, then it will be a factor tending against a finding that the failure to appear has rendered the trial process unfair.

In this case, I saw nothing about the cross-examination that was inappropriate and therefore the manner of questioning in my view is not a factor tending against a finding of an unfair trial process. [ 28 ] Cromwell, J.A. also stated that if the unresponsiveness could have been avoided by reasonable action, the evidence generally should not be admitted without a full cross-examination. This requires the Court to look at the steps which could have been taken to get the Complainant before the Court for completion of the cross-examination.

There were steps which could have been taken in this case; however, the Crown made the decision not to pursue them. [ 29 ] Turning to the second category of factors, the impact of the unresponsiveness, Cromwell, J.A. said at paragraphs 102 – 106: 102 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. 103 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. 104 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. 105 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. 106 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. [ 30 ] The evidence of the Complainant is critical to the case for the Crown.

There is no case without her evidence. This should normally increase the reluctance of a trial judge to admit the evidence without a full cross-examination. [ 31 ] I next will examine the extent and effect of the cross-examination that has been conducted and Defence counsel’s submissions on areas of cross-examination that were not pursued because of the failure of the Complainant to appear.

Defence counsel had some opportunity to cross-examine the Complainant and this cross-examination was effectual in that it revealed inconsistencies between the Complainant’s testimony at trial and what she said on other occasions. [ 32 ] However, I am also satisfied, based on the submissions of Defence counsel and the evidence of the Complainant on direct and so far under cross-examination, that there are a number of other legitimate areas which Defence counsel intended to pursue on cross- examination.

The importance of cross-examination in a case such as this where it is essentially one person’s word against another person’s word with one person saying an incident occurred and the other saying it did not cannot be overstated. It is critical to the Defence. Given the importance of cross-examination to the right to make full answer and defence, the evidence I have heard thus far, and the submissions of counsel, I am not able to conclude that further cross-examination would have been ineffectual.

To the contrary, I am more inclined to conclude that further cross-examination would have been effectual. [ 33 ] Turning to the third factor, namely the possibility of ameliorative action, Cromwell, J.A. stated at paragraphs 109 – 111:

109 Before concluding that the trial has become unfair or whether there has been a denial of the right to full answer and defence, the trialjudge should consider whether the limitation on cross-examination can be remedied or at least ameliorated. 110 For example, the trial judge should consider whether the difficulty with the witness is likely to be permanent. If there is areasonable prospect of the witness becoming responsive in a reasonable period of time, consideration should be given to postponement ofthe 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'scase in the sense that the Crown would proceed even without the witness's evidence, consideration may be given to striking the witness'sevidence or, if necessary, declaring a mistrial and proceeding afresh without the witness. 111 Consideration should also be given to the utility of a proper instruction to the jury. [34] In this case, a postponement is not a consideration because the Complainant has stated clearly that she wants nothing further todo with the process and the Crown has advised that it does not want a warrant to be issued.

No doubt in appropriate circumstances wheredifficulty with a witness attending is not likely to be permanent, a postponement would be an appropriate course of action. [35] Based on comments made by Crown counsel, this is not a case where we could simply proceed without the evidence of theComplainant as would be the case where a non-appearing witness is not crucial to the Crown’s case. [36] It is in the context of this third factor that I shall deal with the submissions of the Crown that the preliminary inquiry evidenceof the Complainant be admitted into evidence pursuant to section 715(1) of the Criminal Code. [37] Section 715(1) of the Criminal Code provides as follows: 715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidencewas taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or togive evidence, or if facts are proved on oath from which it can be inferred reasonably that the person (

a) is dead, (

b) has since become and is insane, (

c) is so ill that he is unable to travel or testify, or (

d) is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedingswithout further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. [38] The Crown has not argued that either of the circumstances in subsections (a), (b), (

c) or (

d) of section 715(1) is applicable inthis case. Instead, the Crown argues that the facts of this case fall within the phrase “refuses to be sworn or to give evidence” containedin section 715(1).

Essentially, the Crown is arguing that the decision by the Complainant to cease her involvement in this trial and to notshow up for trial continuation amounts to her refusing to be sworn or to give evidence. [39] If in fact 715(1) is applicable, the preliminary inquiry evidence may be admitted as evidence on the trial unless the Accusedproves that he or she did not have full opportunity to cross-examine the witness at the preliminary inquiry.

What is important is notwhether the Accused conducted a full cross-examination but instead whether he or she had the opportunity to conduct a full cross-examination (see R. v. Potvin, (SCC), [1989] 1 S.C.R. 525 and R. v. Michaud (2000), (NB CA),144 C.C.C. (3d) 62, 45 W.C.B. (2d) 420 (N.B. C.A.)). In this case, the Accused has not argued that he did not have a full opportunity tocross-examine the Complainant at the preliminary inquiry. [40] There remains two questions to be addressed in terms of whether the preliminary inquiry evidence should be admitted undersection 715(1).

The first is whether the factual situation here equates to the Complainant refusing to give evidence. The second questionis that even if it does, is there any reason why I should exercise my discretion and not admit the evidence. Such a discretion exists undersection 715(1) as evidenced by the use of the word “may” in the section. This residual discretion was confirmed by the Supreme Court ofCanada in R. v. Potvin at paragraph 30 where Wilson, J. for the majority on this point said: 30 It is my view that the word "may" in s. 643(1) is directed not to the parties but to the trial judge.

I believe it confers on him or her adiscretion not to allow the previous testimony to be admitted in circumstances where its admission would operate unfairly to the accused.. . . [41] Later Wilson, J. elaborated on the nature and purpose of this discretion at paragraphs 34 and 35: 34 What then is the nature and purpose of the discretion conferred in s. 643(1) which enables the trial judge not to allow the evidence in

at trial even in cases in which the requirements of the

section have been met? In my view there are two main types of mischief at whichthe discretion might be aimed. First, the discretion could be aimed at situations in which there has been unfairness in the manner in whichthe evidence was obtained. Although Parliament has set out in the

section specific conditions as to how the previous testimony has tohave been obtained if it is to be admitted under s. 643(1) (the most important, of course, being that the accused was afforded fullopportunity to cross-examine the witness), Parliament could have intended the judge to have a discretion in those rare cases in whichcompliance with the requirements of s. 643(1) gave no guarantee that the evidence was obtained in a manner fair to the accused.

Thiswould, of course, represent a departure from the traditional common law approach that the manner in which evidence is obtained, with afew well-established exceptions such as the confessions rule, is not relevant to the question of its admissibility but it would be consistentwith the contemporary approach to the expanded requirements of adjudicative fairness. An example of unfairness in obtaining thetestimony might be a case in which, although the witness was temporarily absent from Canada, the Crown could have obtained thewitness's attendance at trial with a minimal degree of effort.

Another example might be a case in which the Crown was aware at the timethe evidence was initially taken that the witness would not be available to testify at the trial but did not inform the accused of this fact sothat he could make best use of the opportunity to cross-examine the witness at the earlier proceeding.

These kinds of circumstancesrelated to the obtaining of the evidence on the earlier occasion might have been in the mind of the legislator as triggering the judge'sdiscretion with respect to its admission at the trial. 35 A different concern at which the discretion might have been aimed is the effect of the admission of the previously taken evidence onthe fairness of the trial itself. This concern flows from the principle of the law of evidence that evidence may be excluded if it is highlyprejudicial to the accused and of only modest probative value: see Noor Mohamed v.

The King, (UK JCPC), [1949]A.C. 182 (P.C.), at p. 192; R. v. Wray, supra, at p. 295; Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190, at p. 201.How the evidence was obtained might be irrelevant under this principle. [42] And later at paragraph 37, Wilson, J. said the following: 37 . . .

I would stress that in both situations the discretion should only be exercised after weighing what I have referred to as the "twocompeting and frequently conflicting concerns" of fair treatment of the accused and society's interest in the admission of probativeevidence in order to get at the truth of the matter in issue: see Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at pp.392-93. Having regard to the reservations that have been expressed over the restrictive formulation of the common law discretion inWray, supra (see Morris v. The Queen, supra, at p. 202; Clarkson v. The Queen, at pp. 392-93, R. v.

Corbett, supra, at pp. 738-39), Ibelieve there is no need or justification for importing a similar restriction into the statutorily conferred discretion in s. 643(1).

Theprotection of the accused from unfairness rather than the admission of probative evidence "without too much regard for the fairness ofthe adjudicative process" (see Clarkson, at p. 393) should be the focus of the trial judge's concern. [43] The Supreme Court of Canada ultimately allowed the appeal and sent the matter back for a trial judge to make thedetermination as to whether to exercise his or her discretion to admit the preliminary inquiry evidence. However, the Court did reviewand assess certain factors from the case before it in favour of admission and against admission.

At paragraph 40, Wilson, J. stated: 40 There can be no doubt about the fact that the decision whether or not to exercise the statutory discretion in this case would not havebeen an easy one. In favour of the admission of the evidence is the absence of any allegation that the manner in which Deschênes'testimony was obtained was unfair to the appellant. Moreover, the appellant's counsel exercised his right to cross-examine Deschênes atthe preliminary inquiry and there was some cross-examination.

There was also a measure of corroboration of Deschênes' testimony (sofar as it pinpointed Potvin as the culprit) by the testimony of Thibault at trial. Also favouring admission of Deschênes' testimony was thefactor emphasized by the trial judge, namely its high probative value. The testimony purported to be an eyewitness account of theappellant beating and killing the victim.

On the other hand, given the appellant's defence that he was a passive observer and that it wasDeschênes, the unavailable witness, who did the actual beating and killing, the issue of Deschênes' credibility was obviously critical tothe trier of fact's decision whether to accept or reject Deschênes' version of the events.

Yet the jury had no opportunity to observeDeschênes' demeanour as an aid in assessing that witness's credibility. [44] Now I turn back to the issue of whether the circumstances of this case equate to the Complainant refusing to give evidence.This is a necessary pre-condition to the applicability of section 715(1) in this case. [45] I think it is useful in interpreting 715(1) and in particular the phrase “. . . refuses to be sworn or give evidence . . . ” to examinewhat the Supreme Court of Canada had to say in Potvin when it examined the constitutionality of section 643(1) – the predecessor tosection 715(1).

In finding that the admission of previously obtained testimony under section 643(1) did not violate

section 7 of theCharter, Wilson, J. adopted the following statement of Vancise, J.A. of the Saskatchewan Court of Appeal in R. v. Rogers (1997), (SK CA), 35 C.C.C. (3d) 50, 1 W.C.B. (2d) 435 (Sask. C.A.): 25 Does this procedure offend the basic tenets and principles on which the principles of fundamental justice are based? Put another way,are these procedural safeguards sufficient to make the taking of the evidence accord with the principles of fundamental justice which arefounded upon a belief "in the dignity and worth of a human person and on the rule of law"? In my opinion, they are.

The conditionsunder which the evidence is given, including the solemnity of the occasion, are such as to guarantee its trustworthiness and to protect therights of an accused. The evidence is given in open court in the presence of the accused, taken on oath or solemn affirmation, and theperson against whose interest it is sought to be introduced has reasonable opportunity to cross-examine. The evidence is certified as tocorrectness by the judge before whom it was given.

This is not a mechanism for the introduction of evidence which is not admissible, butrather a system for the use of evidence which would otherwise be lost. Its use, or admissibility, is provided for in a way which accordsfull safety to the rights of an accused. Those safeguards, together with the limited circumstances in which the procedure can be resortedto, justify its acceptance into evidence. The procedure is one which accords with the principles of fundamental justice, and in my opinions. 7 of the Charter has not been offended. [46] This statement in my view indicates that the purpose of this

section is not to provide an easy route for admission of the type ofevidence covered by the section, namely evidence from a previous trial, a preliminary inquiry or an investigation into the charge.

Instead, it is to provide a possible way for it to be admitted where it would otherwise be lost or unavailable to the court. It also appears tome that the finding of constitutionality was at least in part based on the fact that there were limited circumstances in which the procedurecould be used. [47] It is also my reading of Potvin that the Court saw section 643(1) as a provision to be interpreted narrowly as opposed tobroadly. I refer to the words of Wilson, J. at paragraph 23: 23 . . .

In any event, because s. 643(1) can only be invoked when its stringent pre-requisites are met by the party seeking to introduce theprevious testimony, it is not a provision that the Crown can use at will to its advantage or as a device to protect Crown witnesses whomay not prove to be credible before the trier of fact. [48] Section 715(1) was dealt with by Green, J., as he then was, in the case of R. v. Druken (1995), 135 Nfld. & P.E.I.R. 338, (Nfld.

S.C. (T.D.)) at paragraphs 14 and 15 where he said: [14] In listing the two categories of situations where it would be appropriate for the trial judge to exercise his or her discretion toexclude evidence under s. 715 notwithstanding its technical application Wilson, J.A., in Potvin referred to them as the "main" types,thereby implying that there may be other situations where it is legitimate for the trial judge to exercise discretion.

In that connection, it isto be noted that Wilson, J., also commented at p. 302 [C.C.C.]: "It [ie. s. 715] is not a provision that the Crown can use at will to its advantage or as a device to protect Crown witnesses who may notprove to be credible before the trier of fact." In like manner, in R. v. Kaddoura (1987), 1987 ABCA 226 , 82 A.R. 347; (AB CA), 41 C.C.C.(3d) 371,McClung, J.A., speaking for the Alberta Court of Appeal, stated at p. 378 [C.C.C.]: "Obviously, s. 643 [now s. 715] is a procedure that can be misused.

It is not unknown for witnesses who are resident outside Canada tohave been told that once their evidence has been given at the preliminary inquiry they need not return to Canada to testify again. There isno suggestion of that taking place in this case. But some discussion of practice realities should be taken. If the Crown is forewarnedbefore the preliminary inquiry begins of the witness's intention to permanently depart Canada after giving testimony, the defence shouldbe promptly informed so that the future engagement of s. 643 may be contemplated in the conduct of the defence...

Other, moreaggravated, cases could court a finding of process abuse." [15] In my view, therefore, it would also be appropriate for the Court to exercise its discretion to exclude evidence on anapplication under s. 715 where, even though there may not have been any impropriety in the manner of taking the evidence at or beforethe preliminary inquiry, there exist circumstances where, subsequently, either by virtue of the actions of the Crown or others, steps aretaken so as to improperly dilute the obligation on the part of a witness to appear at trial.

Thus, if subsequent to the preliminary, theCrown were to suggest to the witness that it is no longer essential that she be available to testify at trial or if a knowledgeable witnessherself were to seek to rely on s. 715 to avoid an obligation to testify while nevertheless seeking to convict an accused, suchcircumstances might dictate exclusion of the evidence, on grounds of unfairness to the accused.

Section 715 ought not to be allowed tocondone a deliberate and concerted attempt to undermine the general principle that evidence should be presented orally in court. [49] Green, J. discussed the issue further later in his decision at paragraphs 35 – 39: [35] Having decided that the two bases for exercising discretion to exclude s. 715 evidence, as set out in Potvin, are not present here, Inevertheless feel it appropriate to address the question whether or not there may be any other reason, in the circumstances of this case,for exercising the discretion of exclusion.

The two matters that have troubled me most in this case are, firstly, that, unlike the factualcircumstances in the other cases cited to me, substantially the whole of the Crown's case depends upon the admissibility of this evidence.In fact, Crown counsel has indicated that if this evidence and certain other out-of-court statements which will also be sought to beadmitted in separate subsequent applications are not received by the court, there will be no case for the defence to answer.

The result isthat the guilt or innocence of the accused in this case depends primarily on whether or not I believe the evidence of the witness given atthe preliminary inquiry.

In many respects, therefore, (if the accused does not testify or call evidence on his behalf), a "paper trial"without the reception and digestion of viva voce evidence in the normal manner, will result. [36] The second concern that I have is that if this evidence is admitted, the result may be perceived as an easy means ofplacing evidence before a court without the necessity of requiring complainants/witnesses to testify, particularly in stressful orembarrassing cases.

If s. 715 were liberally applied, witnesses who became aware of its potential application might be prepared, ifpersuaded to testify once at the preliminary inquiry, to risk the sanction of the court and refuse to testify again, in the hope that thecomplaint can nevertheless proceed against the accused. We might therefore end up with a different standard of procedural justice incertain types of cases. [37] Having considered the matter carefully, I am satisfied, at least in the circumstances of this case, that neither of theseconcerns justify the exercise of my discretion to exclude the evidence.

[38] With respect to the first concern, s. 715 makes no distinction between types of witnesses or with respect to thesignificance of their evidence in relation to the ability of the Crown to proceed with the case in their absence.

Whilst the prospect of apaper trial is something that has to be borne in mind when determining whether or not there is unfairness to the accused, each case mustnevertheless be dealt with on its own merits and if on a consideration of the circumstances, it is determined that there are sufficientsafeguards to ensure fairness to the accused, the fact that the evidence sought to be admitted is substantially the whole of the case for theCrown should not in itself be ground for exercising the discretion of exclusion.

Here, as I have said, although the credibility of thiswitness is important, it is the type of case where the tools for assessing credibility are available from the transcript itself. [39] With respect to the second concern, which essentially is a concern that the procedure can be misused, in the sensereferred to in Kaddoura and Potvin, I am satisfied that in this particular case the procedure is not being misused by the Crown or thewitness. There is a genuine fear on this witness's part and she is sincerely taking the position that she will not testify.

She is notattempting to convict the accused on paper evidence. Obviously, if it was apparent that the witness was refusing to testify for someulterior motive or was attempting to avoid her obligations, or the Crown was acting to protect the witness because she may not provecredible before the trier of fact, that might be a different situation and obviously, the contempt power would be much more likely to beemployed in such circumstances.

If it becomes apparent that witnesses, either on their own, or at the suggestion of the Crown, areattempting to do an "end run" around their obligation to testify at trial by improperly invoking s. 715, then it is much more likely that thecontempt power would be employed and that the discretion of the court would be exercised in favour of excluding preliminary inquiryevidence. That is not the situation here. [50] The comments of Green, J. and Wilson, J. convince me that section 715(1) should be interpreted strictly. I am also of the viewthat the specific circumstances covered by subsections (a), (b), (

c) and (

d) of section 715(1) are also of assistance in the

interpretation ofthe phrase “refuses to be sworn or give evidence”. These specific examples are of exceptional situations where there would be no way toget the evidence before the court without the benefit of section 715(1).

It is my view that the phrase “refuses to be sworn or to giveevidence” should be interpreted in a manner so that it is confined to situations where there would be no way to get the evidence beforethe court without the benefit of section 715(1). [51] The Ontario Court of Appeal dealt with the meaning of the phrase “refuses to be sworn or give evidence” in the case of R. v.Hawkins (1995), (ON CA), 22 O.R. (3d) 193, 96 C.C.C. (3d) 503 (Ont. C.A.).

That case involved a situation where awitness who had testified at the preliminary inquiry subsequently married the accused, Hawkins, thus rendering her incompetent andincompellable at trial as a witness for the Crown. The Crown argued that the effect was that she was refusing to testify and thus section715(1) applied. The trial judge disagreed but on appeal to the Ontario Court of Appeal, Arbour, J. for the majority on this point said atparagraphs 21 and 22: 21 Refusing to be sworn or to give evidence is one of five instances where a witness's prior testimony may be read as evidence withoutfurther proof.

A prior testimony may also be used if the witness is dead, is insane, is ill, or is absent from Canada. These are all instanceswhere the witness is unavailable, sometimes by choice. Ms. Graham never stated that she refused to testify against her husband. Theissue, therefore, is whether the language of s. 715 is broad enough to encompass a situation such as this one where the witness, by herown actions, puts herself beyond the reach of the court. 22 The reasons of the trial judge leave no ambiguity on that point.

He found that the marriage was one of convenience in that Ms.Graham married the respondent Hawkins so as to avoid having to testify against him at trial. It is in that sense that I equate this case witha situation where a witness does something to make it impossible for the witness to be compelled to testify. Ms. Graham could have leftthe country or gone into hiding. Instead, she married the respondent, and her actions served the same purpose. She deliberately putherself beyond the reach of the court.

In my opinion, in such circumstances it does not do violence to either the language or to the intentof s. 715 of the Code to hold that the witness refused to testify. I would therefore find that Cherie Graham refused to testify within themeaning of that expression in s. 715 of the Criminal Code. I would simply add that nothing would have been achieved by the Crownattempting to have Ms. Graham record her refusal to testify in court. Had the crown issued a subpoena to Ms. Graham, the respondentswould have been entitled to have it quashed as Ms.

Graham is not a competent witness for the prosecution. [52] I think it is important to note that the basis of Arbour, J.’s decision was that the witness had put herself beyond the reach of thecourt. In that regard, it is consistent with situations where the witness is dead, insane, too ill to travel or testify, or absent from Canada. [53] It is my view that the factual situation before the Court in this case does not equate to a situation where a person is beyond thereach of the Court.

The Complainant here made a decision that she wanted nothing further to do with the proceeding before the Courtand did not show up for trial continuation. As I indicated earlier, on the facts before me I think it would be inappropriate for me to tryand determine why it is she did not show up. In particular, I believe it would be inappropriate for me to draw an inference as suggestedby the Crown that the Complainant became emotionally upset at having to testify about being sexually assaulted.

To do so requires meto accept she was sexually assaulted by the Accused in a case where the position of the Accused is that the incident which is alleged tohave constituted the assault did not occur. [54] It cannot be said that the Complainant is beyond the reach of the Court. Neither can it be said that there would be no way to getthe evidence before the Court without the benefit of section 715(1). The Crown could have sought a warrant which would havecompelled the attendance of the Complainant.

If that had happened then we may have been better informed as to why the Complainantdid not show up for trial continuation. Better still, the Complainant may have testified after the possible consequences of not testifyinghad been explained to her. The Crown, as is within their prerogative, decided not to seek a warrant. It is not for the Court to question thatdecision. However, it is my view that circumstances such as these do not equate to the Complainant refusing to be sworn or giveevidence. This is not a situation where the Complainant is beyond the reach of the Court.

Instead, the Crown has decided it does not want

the Court to use its reach to bring the Complainant before the Court. [55] I share the concerns expressed by Green, J. in Druken regarding the use of section 715(1) so as to “improperly dilute theobligation on the part of a witness to appear at trial”. I also agree with the statement of Green, J. that “Section 715 ought not to beallowed to condone a deliberate and concerted attempt to undermine the general principle that evidence should be presented orally incourt”.

I wish to make it clear that I am not trying to suggest that the Crown is somehow intentionally attempting to undermine thegeneral principle that evidence should be presented orally in court. However, that will be the result if the phrase “refuses to be sworn orgive evidence” is interpreted in the manner suggested by the Crown in this case. [56] Similarly, I agree with Green, J. when he said that if section 715(1) is applied liberally, we may end up with a differentstandard of procedural justice in certain types of cases. I do not believe that is what was intended by section 715(1).

If we permit a liberalinterpretation of “refuses to be sworn or give evidence”, as is being suggested in this case, then my concern is that it will lead towitnesses who have testified once at a preliminary inquiry simply deciding that they are not going to testify again at trial. I do not believethat type of situation was intended to be covered by section 715(1). [57] Thus, it is my determination that the factual circumstances in this case do not equate to the Complainant refusing to be sworn orgive evidence.

Thus, the necessary precondition for the application of section 715(1) being relied on by the Crown in this case does notexist. [58] Even if it could be said that the circumstances of this case do equate to a refusal to be sworn or give evidence (which I havedecided is not the case), this would be an appropriate case for the exercise of the discretion provided for in section 715(1) not to admitthe preliminary inquiry evidence.

Generally speaking, that is because to allow the admission of preliminary inquiry evidence in this casewould in my determination impact the right of the Accused to a fair trial. [59] Wilson, J. in Potvin noted that the circumstances in which the discretion should be exercised on the basis of trial fairnessshould be relatively rare and later stated at paragraph 37: 37 I would stress that in both situations the discretion should only be exercised after weighing what I have referred to as the "twocompeting and frequently conflicting concerns" of fair treatment of the accused and society's interest in the admission of probativeevidence in order to get at the truth of the matter in issue: see Clarkson v.

The Queen, (SCC), [1986] 1 S.C.R. 383, at pp.392-93. Having regard to the reservations that have been expressed over the restrictive formulation of the common law discretion inWray, supra (see Morris v. The Queen, supra, at p. 202; Clarkson v. The Queen, at pp. 392-93, R. v. Corbett, supra, at pp. 738-39), Ibelieve there is no need or justification for importing a similar restriction into the statutorily conferred discretion in s. 643(1).

Theprotection of the accused from unfairness rather than the admission of probative evidence "without too much regard for the fairness ofthe adjudicative process" (see Clarkson, at p. 393) should be the focus of the trial judge's concern. [60] There is no doubt that the absence of an opportunity for the trier of fact to observe the demeanour of a witness giving her or histestimony is not necessarily fatal to the admissibility of evidence such as preliminary inquiry evidence in all cases. [61] To some extent whether it is fatal or not will depend on the extent to which credibility is important in the case.

The greater theimportance of credibility to the ultimate outcome of the case, the more likely the absence of an ability to conduct a full cross-examination before the trial judge will lead to a decision not to admit the evidence. What is determinative is whether the trial judge isable to assess credibility notwithstanding that he or she did not have an opportunity to observe the witness testify under a full cross-examination. [62] From what I know about this case thus far, including what I have been told by counsel, credibility will be a hugely importantfactor in determining the ultimate outcome.

The Complainant says that the alleged incident which underpins the charge occurred. Theposition of the Accused is that it did not. In the absence of a full cross-examination of the Complainant I would be left to assess hercredibility on the basis of the preliminary inquiry evidence, her evidence on direct examination at trial and her evidence from the partialcross-examination which was conducted. [63] Leaving aside for a second the issue of whether I can assess credibility on the basis of the foregoing evidence, I note that thetiming of the application in this case gives the Crown an unfair advantage.

This is not a situation where a witness has not testified at alland the Crown is seeking admission of the preliminary inquiry evidence of that witness. The Crown had a full opportunity to conduct itsdirect examination of the Complainant and elicit the evidence from her that it wanted to put before the Court. The section 715(1)application arose part way through cross-examination.

Thus, if the application were allowed, I would have all of the evidence of theComplainant from the preliminary inquiry and all of the evidence that the Complainant gave on direct examination; however, I wouldonly have the evidence elicited from the Complainant during a partial cross-examination. [64] In this case, I need not decide how this unfairness might impact whether to allow the admission of the preliminary inquiryevidence of the Complainant.

That is because upon consideration of the preliminary inquiry evidence in this case and the evidence givenby the Complainant thus far at trial, it is my determination that it would be extremely difficult to conduct a proper credibility assessmentof the Complainant. I am not saying that would always be the case as I realize that in some cases an acceptable credibility assessment canbe conducted on the basis of factors other than observation of the demeanour of a witness. However, in this case, there was not anextensive cross-examination of the Complainant at the preliminary inquiry.

The form of the cross-examination was more of aninformation gathering exercise as opposed to the pointing out of inconsistencies and questioning a witness regarding same. It is notextremely helpful in assessing credibility in my view and I see very little else which would help me conduct a credibility assessment. Assuch, it is my determination that without the benefit of observing the demeanour of the witness under a full cross-examination, credibilityassessment would be extremely difficult.

Therefore, in this case I am of the view that the absence of an opportunity to observe theComplainant’s demeanour under a full cross-examination is of such significance that it outweighs the importance of obtaining probativeevidence, namely the preliminary inquiry evidence. Therefore, this is a situation where it would be appropriate to exercise the discretionand not admit the evidence under section 715(1). conclusion

[ 65 ] Based on my analysis of the three categories of factors outlined by Cromwell, J.A. in Hart , including my analysis of the applicability of section 715(1) of the Criminal Code , it is my determination on the facts of this case that the inability of the Accused by his counsel to complete cross-examination of the Complainant amounted to a violation of the right of the Accused to make full answer and defence and his right to a fair trial. [ 66 ] The next question is that of remedy.

Defence counsel argued that a judicial stay of proceedings or the exclusion of the evidence of the Complainant at trial was the most appropriate remedy.

Conversely the Crown argued that affording the evidence of the Complainant less weight was a more appropriate remedy or admitting the evidence of the Complainant from the preliminary inquiry. [ 67 ] I have already decided for the reasons previously set forth that the admission of the evidence of the Complainant from the preliminary inquiry pursuant to section 715(1) of the Criminal Code would not be appropriate in this case. [ 68 ] It is also my view that a judicial stay of proceedings is not the appropriate remedy in circumstances such as this.

A judicial stay of proceedings is an extreme remedy to be used in cases where the integrity of the entire proceeding has been compromised. While the failure of a single witness to appear in court may in some circumstances taint the entire proceeding, the failure of the Complainant to appear for trial continuation and continuation of cross-examination by Defence counsel in this case does not taint the integrity of the entire proceeding. As such, it is my view that the remedy should be limited to one which is confined to the evidence of the Complainant.

It is my decision that the appropriate remedy in this case is to exclude the evidence of the Complainant given at trial. To simply give her evidence less weight would not in my determination adequately cure the violation of the Accused’s right to make full answer and defence and his right to a fair trial. [ 69 ] I realize that in a case such as this a remedy of exclusion of the evidence of the Complainant given at trial might from a practical perspective mean the end of the prosecution of the Accused; however, that is not a decision for the Court to make as it does not know in full detail the case for the Crown.

There also remains outstanding the application of the Crown seeking admission of the preliminary inquiry evidence of the Complainant based on the principled approach to the hearsay rule. It is for the Crown to decide how they intend to proceed with the prosecution of this case in light of this decision. _____________________________ George L. Murphy Justice