R. v. D.J., 2011 NSPC 3

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. D.J., 2011 NSPC 3 Date: May 24 , 2011 Docket: 2292404, 2294273 - 2294282 Registry: Halifax Her Majesty the Queen v. D.J. DECISION Judge: The Honourable Judge Anne S. Derrick Heard: May 4, 2011 Decision: May 24 , 2011 Charges: sections 145(2)(b); 279(2), 264.1(1)(a), 266 x 6, 129(a), 267(

a) of the Criminal Code Counsel: Catherine Cogswell- Crown Attorney D.J. for himself By the Court : [ 1 ] The Crown’s application engages two sections of the Criminal Code ,

section 486.3(1) and

section 486.3(2) . The sections provide a court with the authority to appoint a lawyer to cross-examine a witness, in the case of

section 486.3(1) , where the witness is under the age of 18 years, and in the case of

section 486.3(2) , where the witness is 18 or older but the court is satisfied that having a lawyer appointed for purposes of cross-examination is necessary “to obtain a full and candid account from the witness of the acts complained of…” [ 2 ] These applications arise because D.J. has indicated in emphatic terms his determination to represent himself at trial. He has been provided with the opportunity to retain counsel and, I am advised, was issued a Legal Aid certificate to enable him to do so. To this point, he has unequivocally rejected the idea of having a lawyer and insists on representing himself.

[ 3 ] The Crown has brought these applications for the appointment of a lawyer to conduct the cross-examinations of two children, a three year old and a six year old, and to conduct the cross-examination of D.J.’ estranged spouse, S.J.. [ 4 ] The three year old child, N., is the daughter of D.J. and S.J.. I. is six. D.J. is her stepfather. S.J. is her biological mother. The children are witnesses in the Crown’s case against D.J. on charges of assault, including assaults that the Crown alleges were committed against N..

S.J. is the complainant on the charges against D.J. of unlawful confinement, threats and assault and also a witness for the Crown on the charges relating to N.. [ 5 ] The Crown supported its applications with testimony from Cst. Sandra McNaughton, a 15 year veteran of the RCMP who has been working for the past two years with the Halifax Regional Police Service integrated Major Crime unit. She is specifically assigned to investigations involving crimes against children and sex crimes. The Crown asked Cst.

McNaughton questions relating to both applications – the one relating to the child witnesses and the one relating to S.J. and I will refer to her evidence in the relevant places in these reasons. [ 6 ] D.J. cross-examined Cst. McNaughton but called no evidence of his own on these applications. [ 7 ] A point made by the Crown, with which I agree, is that the law does not require the Crown on applications such as these to call the actual witnesses or complainants to give evidence. ( R. v. Predie, 2009 O.J. No. 2723 , paragraphs 12 and 13 ; R. v. G.(D.P.), [2008] O.J.

No. 767 , paragraph 5 ) “It is sufficient if the requisite evidence is forthcoming from another witness with appropriate knowledge of the witness.” ( R. v. Predie, paragraph 13 ) I will also note that there is nothing in the Criminal Code provisions that precludes me from receiving and considering hearsay evidence on these applications.

Indeed, precluding hearsay would undermine the purpose of the Criminal Code provisions: if the evidence for these applications had to come in through the witnesses with respect to whom the order was being sought, then the accused would be able to cross-examine those witnesses in the application proceedings. That would create the farcical result that the witnesses would be subject to cross-examination by the accused on an application to obtain an order to protect them from such cross-examination at trial.

Section 486.3(1) Application [ 8 ]

Section 486.3(1) presumes that an accused will not conduct the cross-examination of very young witnesses. That is what the

section states – and I will repeat it in an appropriately abbreviated form: “In any proceedings against an accused…the accused shall not personally cross-examine the witness, unless the judge…is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination.” [ 9 ] As can be seen from the language of

section 486.3(1), there is a presumption that a lawyer will be appointed where the witnesses are under 18 unless D.J. is able to satisfy me that the proper administration of justice requires that he conduct the cross-examinations personally. [ 10 ] Therefore, as a matter of law, D.J. must show me why his personal conduct of the cross-examination of his very young daughter and step-daughter is required for the proper administration of justice.

I can put the issue this way: How will a disservice be done to the proper administration of justice if a lawyer on behalf of D.J. conducts the cross-examination of the girls rather than D.J. himself? The Evidence [ 11 ] I will shortly discuss the relevant law but am now going to review the evidence led by the Crown in support of both applications. [ 12 ] Cst. McNaughton testified that she has received specialized training in the interviewing of child witnesses and also intensive training in family and relationship violence as well as a forensic training course in relationship violence. D.J.’ examination of Cst.

McNaughton did not cause me to question her qualifications as a specialized police investigator experienced in dealing with child witnesses and complainants in relationship violence cases.

[ 13 ] In this particular case, Cst. McNaughton was assigned the task of interviewing N. and I. jointly with a social worker from the Department of Community Services according to police protocols for taking statements from children under the age of 16. [ 14 ] Cst. McNaughton indicated that when N. was interviewed on March 17, 2011, she was just three years old, her birthday being on February […], 2008. Cst. McNaughton found N. capable of doing the interview but quite shy and withdrawn.

She presented as a child whose vocabulary skills were not advanced for her age and she responded to questions with 2 – 3 word sentences. [ 15 ] When Cst.

McNaughton was asked if she had any concerns about N.’s ability to testify under a cross-examination by D.J., she responded by saying that she had “huge concerns”, that a cross-examination would “perpetuate the violence she has already experienced” and would be “devastating” to a child who has already been seriously traumatized. [ 16 ] Before I go any further in reviewing the evidence on these applications I want to note that, as I explained to D.J. in court, I am not making any assessment about whether any of what has been alleged in this case is true.

D.J. is presumed innocent until the Crown proves him guilty beyond a reasonable doubt. I am not addressing the issue of proof and reasonable doubt on these applications. I am considering only whether there is evidence before me that supports the Crown’s applications and not whether the offences that D.J. is charged with actually happened. Cst. McNaughton’s experience and her views on the effects of cross-examination by D.J. are however relevant to my decision. [ 17 ] Cst. McNaughton also interviewed I. whose birthday is August […], 2004.

I.’s interview was on March 15, 2011 and it was conducted with the Department of Community Services’ social worker being present. Cst. McNaughton found I. to be a “very pleasant, polite” child who knew why she was being interviewed. I. gave a statement in which she described being present when N. was assaulted. She was very matter-of-fact. When asked by Cst. McNaughton what she had been feeling, I. responded by indicating that she had felt “nothing, I was empty.” In Cst.

McNaughton’s view this suggested that I. was “shut down and closed off by what she had witnessed.” [ 18 ] Asked whether she had any concerns about I. being cross-examined by D.J., Cst. McNaughton responded that she would be “very concerned that she would be afraid to tell the truth.” She thought I. would have a “really hard time facing D.J.” saying that although she “has been traumatized”, I. probably still cares for him as he has been the father figure in her life. Cst.

McNaughton suggested that witnessing a violent incident can be equally if not more traumatizing than experiencing violence directly where, as here, the witness feels protective toward the victim and is unable to help them. According to Cst. McNaughton, I. felt it was her role to protect N. but at the time, she could not help her. In her opinion, I. is afraid of D.J. having witnessed violence in the home. [ 19 ] Cst. McNaughton was asked by D.J. if the responses of the children during the interviews had been conditioned by the way she had put questions to them.

She denied this, indicating that she has been trained to ask questions that are not leading. [ 20 ] Cst. McNaughton also related how the children have not wanted to go back to where they were living with their mother and D.J.. S.J. told Cst. McNaughton that when she tried to take N. back to the apartment, N. “flipped out” and was very upset. This was presented to me as a further indication of the trauma and distress associated with the incidents in which the children were involved. [ 21 ] It was clear from Cst.

McNaughton’s testimony that in her view it will be hard for either N. or I. to give an uncompromised account of their evidence if they are cross-examined by D.J.. Cst. McNaughton said it was her experience that “a lot of children” wouldn’t be able to say anything “against a parent.” [ 22 ] Cst. McNaughton also interviewed S.J. on March 17, 2011. S.J., who is now 31, met D.J. in 2007. They were married on June 19, 2010. S.J. told Cst. McNaughton she does not know why they got married. Cst. McNaughton testified that S.J. described always feeling scared and controlled by D.J..

When D.J. was arrested and taken into custody, S.J. and the girls went to stay at a women’s shelter. Even with D.J. remanded, S.J. decided against returning to the apartment. When it was suggested to her by D.J. that this decision made little sense, Cst. McNaughton responded by saying it was an indication of how afraid S.J. was even with D.J. locked up. [ 23 ] Cst. McNaughton specifically asked S.J. in a telephone conversation on May 3 how she would feel about being cross-examined at trial by D.J.. She told Cst.

McNaughton matter-of-factly, “I can’t do that”… [D.J.] “would give me the evil eye…I know how he would blame me…I know he’ll make me suffer…he always blamed me…I always believed that everything was my fault.” [ 24 ] Asked about any concerns she might have for S.J. being cross-examined by D.J., Cst. McNaughton testified that she thought S.J.

would have a “tremendous amount of fear.” She talked about how the harm she has experienced would “make it almost impossible for her to be candid in court…” Another factor Cst. McNaughton identified was the power dynamic in the relationship with D.J. that S.J. referred to in her comments about how being cross-examined by him would affect her. [ 25 ] S.J. told Cst.

McNaughton that in a cross-examination by D.J. he would blame her “for everything” and “make everything my fault.” She described how this made her “feel bad when he did that in the past.” She expressed anxiety about even seeing D.J. although, according to Cst. McNaughton, she said “very affirmatively that she was prepared to testify.” The Legal Principles [ 26 ] I am now going to review the law that relates to the Crown’s applications, starting with

section 486.3(1) and the cross-examination of witnesses under the age of eighteen. [ 27 ] The cases have noted that

section 486.3(1) is found within that part of the Criminal Code that provides for certain kinds of aids to support witnesses in giving their testimony in court, such as screens and support persons. The objective is to facilitate a witness being able to provide full and candid testimony. In applications such as the ones I am dealing with, the term “legal screen” has been used to capture what Parliament intended: the use of a lawyer to conduct the cross-examination of a vulnerable witness on behalf of an accused. ( R. v.

S.(P.N.), 2010 ONCJ 244 , paragraph 11 ) There is a societal and administration of justice interest in protecting vulnerable witnesses so that they are facilitated in providing their evidence to the court. [ 28 ] The Crown indicates that it is bringing a

section 486.3(1) application here because: (1) the witnesses are exceptionally young and vulnerable; (2) the allegations involved are of a violent and traumatic nature;

(3) D.J. occupied a position of trust and authority in relation to both children at the time of the allegations; (4) the Crown is concerned about the impact of the incidents on these young children; (5) the Crown is concerned about the impact of the trial process on these young children; and (6) the Crown is concerned that cross- examination by D.J. of these children will perpetrate further abuse. [ 29 ] As I previously indicated, D.J. is presumed innocent until proven guilty.

Nothing I decide in relation to this application changes the fact that he enjoys that presumption of innocence at trial and until the Crown is able, if the Crown is able, to prove the charges against him beyond a reasonable doubt. That however does not mean I am not to consider the nature of the allegations against D.J. and the relevance of that to the application I must decide. Deciding the

Section 486.3(1) Application [ 30 ] D.J. has submitted that he is the most suitable person to cross-examine his daughters. Indicating that N. has some difficulty expressing herself – “she is not fluent with words” is how he put it, he described himself as being able to understand N. better than anyone, even S.J.. He said that he knows I. better than anyone, even her mother, and characterized a part of Cst. McNaughton’s testimony as indicating that I. “couldn’t talk to her mum about certain things.” [ 31 ] I have reviewed my notes and what Cst.

McNaughton in fact said on this issue was that I. told her she had not been able to tell the truth to her mother, a statement that Cst. McNaughton referred to when describing I. having witnessed physical abuse of N. and being afraid of D.J.. There has been no suggestion in the evidence that I. could talk more comfortably to D.J.: the implication in Cst.

McNaughton’s evidence is that at one point, I. had felt unable to tell her mother what she may have witnessed being done to N. by D.J.. [ 32 ] D.J.’ explanation for why he is the best person to cross-examine N. and I. is very similar to the argument made by the accused in R. v. G.(D.P.), [2008] O.J. No. 767 . There, Mr.

G. indicated to the court that he had known the young witnesses he wished to cross- examine since they were born and had never had any difficulty communicating with them. ( paragraph 3 ) The court, citing the the Criminal Code provisions’ objectives of protecting vulnerable witnesses who are more likely to be intimidated by being directly confronted by the accused, rejected the notion that the proper administration of justice required questioning of the witnesses by Mr.

G. personally. [ 33 ] As I mentioned at the start of these reasons, in the case of witnesses under 18, I am mandated to appoint a lawyer to conduct their cross-examination unless the accused person satisfies me that the proper administration of justice requires that the cross-examination should be done personally by him. D.J. has not satisfied me that the proper administration of justice requires personal cross-examination

of his daughters by him. To the contrary, I am amply satisfied that it would be contrary to the proper administration of justice to permitthis. The Crown has presented a persuasive case that the girls have been traumatized by whatever they have experienced in the homethey shared with D.J., that their ability to tell the court what they have to say would be compromised if D.J. asked them questions and theexperience of testifying would likely add to their anxieties and distress. I accept Cst.

McNaughton’s evidence that the girls would havesignificant problems answering questions put to them by D.J. and that the process of doing so could be harmful and traumatizing forthem. [34] I am granting the Crown’s application pursuant to

section 486.3(1) of the Criminal Code for counsel to be appointed to conduct thecross-examination of N. and I. on D.J.’ behalf. [35] I will now turn to the Crown’s application concerning the cross-examination of S.J..

Section 486.3(2) Application [36] The Crown’s

section 486.3(2) application, which relates to the evidence of S.J., seeks to have a lawyer appointed to cross-examineS.J. instead of D.J. doing it personally.

Such an application is to be granted where the judge is “…of the opinion that, in order to obtain afull and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness.” Inmaking this determination, the judge is to consider such factors as: the age of the witness, whether the witness has a mental or physicaldisability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstances thatthe judge considers relevant. [37] In R. v. Predie, 2009 O.J.

No. 2723, a decision of the Ontario Superior Court of Justice, it was held that

section 486.3(2) required“only that the court form the opinion that the appointment of counsel is necessary to obtain a full and candid account from the witness.”(paragraph 14) The judge had the following comments to make about the criminal trial process: 5 A trial is a fact-finding exercise. Facts are determined on the basis of the evidence presented at trial.

The ability of the trier of factsto reach accurate conclusions about the facts of the case improves as the record of relevant and material facts becomes fuller and morecomplete. 6 The goal of the trial process has been described by the Supreme Court of Canada as "truth seeking, and to that end, the evidence ofall those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth": R. v. Levogiannis, (SCC), [1993] S.C.J. No. 70, at para. 13. 7 Giving evidence in a trial is not a common experience for many witnesses. Speaking in public does not come naturally to mostpeople.

Being questioned in a formal setting, with a judge looking over one's shoulder and a jury listening intently to every word, is adaunting experience, particularly when the subject matter is, in many cases, intensely personal to the witness. The court room setting canundoubtedly be an inhibiting force to any witness.

But for some witnesses, the circumstances of the case and the dynamics of therelationship of the witness to the accused are such that the risk of inhibition becomes so great that concern arises as to whether the courtwill obtain a full and candid account of the evidence of the witness. [38] Predie involved allegations of intimate partner violence.

The judge described that the nature of the allegations as implying “powerimbalance, abuse – both physical and psychological – and control.” He observed that the relationship had been an intimate one, and thatthe accused and the witness were not merely “strangers or casual acquaintances.” Evidence had been given by a third party thatsupported a finding that the witness – Mr. Predie’s estranged spouse – was “the type of vulnerable witness that the provisions of section486.3 are designed to address.” (paragraphs 21 – 23) The judge concluded: The nature of her past relationship with Mr.

Predie, their history together, her current emotional state and the nature and substance of theallegations she has made against Mr. Predie all suggest to me that a dynamic exists here that may very well result in a less than full andcandid account from Ms. Sprenger should Mr. Predie personally cross-examine her. (paragraph 23) [39] D.J. has submitted that he knows S.J. better than anyone else and asserted that “she is not scared of me.” It makes no sense to him,he says, that S.J. would refuse to return to the apartment even with him in custody.

In his submission, he can “bring the truth out betterthan anyone else” and wants to be able to personally cross-examine S.J. in order to do so. He also noted that his main purpose behindwanting to represent himself was to conduct the cross-examinations of his daughters and S.J. and bring out the “weaknesses” in theirevidence. [40] I find this case to be very similar to the Predie case. I adopt the comments of the judge in Predie about the criminal trial processand its purpose. I am satisfied that S.J. is the type of vulnerable witness the Criminal Code provisions are designed to protect. The

Crown’s evidence is compelling: S.J. has described to Cst. McNaughton fears and anxieties about D.J. that I find would very likely compromise her ability to give a “full and candid account” of the facts. S.J., by her words to Cst. McNaughton that “I couldn’t do that”, has said she could not cope with a cross-examination conducted by D.J.. The evidence discloses that S. J. has clearly identified a power imbalance in her relationship with D.J. that has operated to make her feel intimidated, fearful and apprehensive. I accept that S.J. is afraid of D.J. and I have no evidence that contradicts that.

As with the girls, I find that a “legal screen” in the form of a lawyer is required for the conduct of S.J.’ cross-examination. [ 41 ] Before I conclude my reasons, I want to note that in Predie , the judge also considered the accused’s ability “to conduct a focused, rational and relevant cross-examination” to be relevant to the Crown’s application and held that “An unfocused, emotion-driven cross- examination will only heighten the anxiety and fearfulness of the witness and will increase the likelihood that the encounter between examiner and witness will take on the character of the very kind of domestic dispute that appears to have given rise to the charges now before the court.” ( paragraph 25 ) In arriving at this view, the judge in Predie took into account what he had directly observed of the accused in court. [ 42 ] I agree that such factors and observations are relevant to applications of this nature.

In this case, on these applications, D.J. conducted himself in a reasonably focused manner, seemed to be managing his emotions and took direction from the court. However, I have noted some indications of a controlling attitude, in his demeanor and comments, that could express itself in a cross-examination of S.J.. For example, at an earlier appearance before me, he was insistent that S.J. not be referred to as his ex-spouse because they are not yet divorced and at the hearing of these applications, he insisted that she be called S.J.. Cst.

McNaughton testified that S.J. has started divorce proceedings and now calls herself Ms. R. but D.J. was not content to permit her to be referred to by that surname, or the variation of it I was using during the application proceedings – R.-J.. This was suggestive of an attitude of possessiveness and control toward S.J. that, in a cross-examination, could set up a fraught interaction between D.J. and his estranged wife. [ 43 ] For the reasons I have just given and in accordance with

section 486.3(2) of the Criminal Code , I am granting the Crown’s application to have counsel appointed to conduct the cross-examination of S.J.. [ 44 ] I will make some concluding comments. As I noted, D.J. has indicated that his primary reason for representing himself has been so that he could personally cross-examine his daughters and S.J.. He told me that if I grant the Crown’s applications I will be effectively depriving him of his right to represent himself. I have two responses to that point.

First, my decision on these applications does not prevent D.J. from representing himself in the balance of the trial. The Crown apparently intends to call 13 witnesses. D.J. will only be prevented from cross-examining three of them at most, if N. testifies. He will be able to conduct the rest of the trial on his own behalf, including the questioning of the other 10 Crown witnesses. I am not saying he should: my opinion has not changed that it would be in his best interests to retain a lawyer to represent him throughout the trial but I cannot require him to do this.

Second, D.J. is entitled to represent himself but the Criminal Code provisions for appointing counsel to cross-examine vulnerable witnesses trump that right for the limited purpose of such cross-examinations. The Crown has been successful in its applications and D.J.’ entitlement to act on his own behalf will be curtailed to the extent of the cross-examinations of his daughter, N., if she testifies, his step-daughter, I., and his estranged spouse, S.J.. [ 45 ] I will now entertain submissions from the Crown and D.J. on the issue of how to implement the appointment of counsel for the cross-examinations.