R. v. Hart

R. v. Hart Court Court of Appeal Date 1999-02-19 Citation 1999 NSCA 45 Docket CAC 148518 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Hart - 1999 NSCA 45 - 1999-02-19 - Library Sheet Decision Content Date: 19990219 Docket: C.A.C. 148518 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Hart, 1999 NSCA 45 Roscoe, Bateman and Cromwell, JJ.A. BETWEEN: WILLIAM ALEXANDER HART ) Arthur J. Mollon, Q.C. ) for the Appellant Appellant ) ) - and - ) ) James A. Gumpert, Q.C. ) for the Respondent HER MAJESTY THE QUEEN ) ) Respondent ) Appeal Heard: ) November 24, 1998 ) ) ) Judgment Delivered: ) February 19, 1999 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Roscoe and Bateman, JJ.A. concurring. CROMWELL, J.A.: I. INTRODUCTION: Alexander William Hart appeals convictions for sexual assault and touching for a sexual purpose entered after trial by judge and jury. The principal issue is whether Mr Hart’s trial was unfair because one of the complainants, who was 12 at the time of trial, was unresponsive during portions of the cross-examination. The appellant submits that the trial judge should either have directed a verdict of acquittal or entered a judicial stay of proceedings at the end of the Crown’s case. II. FACTS AND RULING OF THE TRIAL JUDGE: The appellant was convicted of three sexual offences. Two alleged sexual assaults and touching for a sexual purpose committed against C.J. during 1995 and the third alleged sexual assault against S.S. during the same period. C.J. was the witness whose testimony gives rise to this appeal. During the summer of 1995, the appellant was employed as a long haul driver. His work took him to Newfoundland via the North Sydney Ferry and, at times, he had waiting periods at the terminal wharf. In July of 1996, the Cape Breton Regional Police received a complaint from another 12 year old, S.C., who indicated that the appellant approached him and asked if he would drive around with him for $100. S.C. also told police that the appellant had informed him that he had a bet with other young fellows about who had the bigger penis and that one of the young fellows got $20.00 for winning. The police investigated and the charges giving rise to this appeal were laid. The charges related to events during 1995. At the trial (in May of 1998) the two complainants, S.S. and C.J., were 12. They had been 10 or just under 10 at the time of the alleged offences. Both were permitted by the trial judge to testify on oath. S.S.’s evidence was that he met the appellant through C.J. and C.J.’s brother and that the appellant took them swimming at the community pool in Sydney Mines. S.S. testified he met the appellant a second time when the appellant was sitting in the cab of his transport truck parked in the parking lot of the CN Terminal Building. S.S. said he got in the cab of the truck along with the J. brothers. They were in the front seat and S.S. was in the back behind the seats with the appellant. S.S. testified that the appellant put his hand down S.S.’s pants and touched his penis under his underwear, left it there for a few seconds and then removed it. C.J., in his evidence, described his initial meeting with the appellant, whom he knew as Alex Bond. According to C.J., there were several other meetings at which the appellant would sometimes buy him and his brother food or take them places. On one occasion, the appellant bought them gifts. C.J. described a “contest” involving the appellant, C.J. and his brother. It occurred in the appellant’s truck and its object was to see who had the biggest penis. C.J. described the appellant putting his hand down C.J.’s pants and touching his penis under his underwear. He also testified that the appellant took his penis out and rubbed it against C.J.’s penis. C.J. was a reluctant witness for both the Crown and the defence. He became unresponsive during examination-in-chief by the Crown, either not answering or saying that he did not remember in response to questions concerning the appellant. The following excerpt of the examination-in-chief illustrates the situation: Q. What would you say a contest is? A. Contest would be a race or ... Q. Pardon me? A. A race or something. Q. A race or something. Did you ever have a contest with anyone? A. Yes. Q. Who did you have a contest with? A. With Alex. Q. With Alex. Who else was involved in this contest other than you and Alex? A. [C.] Q. [C.]? That’s your brother [C.]? A. Yes. Q. Okay. You’ve got to speak up now. A. Yes. Q. What was this contest all about? A. (No response) Q. Do you remember what it was about? A. No. Q. Well how, you remember though that you had a contest did you? A. Yes. Q. Do you remember where you were when you had the contest? A. In the truck. Q. Pardon me? A. In the truck. Q. In the truck and what was the winner of this contest going to get? A. (No response) Q. Do you remember? A. No. Q. Shaking your head no. What do you remember about this contest? You told me you remember having a contest so is there anything you remember more about it. A. No. Q. Pardon me? A. No. Q. [C.] do you remember testifying at the Preliminary Hearing? Remember when we were in Court before. A. Yes. Q. Nodding your head yes. Okay. And do you remember me asking you that question in that Court. A. Yes. Q. What did you tell me then? A. (No response) Q. Pardon me? Do you remember about this contest? A. No. Q. No? So how do you get along with Alex now? Have you seen Alex recently? A. No. Q. I’m sorry what was your answer? A. No. The Crown sought, and was granted, leave under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 to cross-examine the witness on relevant passages of both his preliminary hearing evidence and his statement to the police. However, this proved unnecessary as the witness became more responsive to the Crown’s questions before such cross examination took place. During cross-examination by defence counsel, the witness became unresponsive for a significant number, but by no means all, of the questions asked. It is difficult to convey in a few paragraphs the nature and extent of this unresponsiveness during cross-examination. For the first several pages of the transcript of the cross-examination, the witness was substantially responsive, although there were several unanswered questions. The questions answered during the early part of the cross-examination related, for example, to whether the witness had discussed his evidence with others, whether he had complained of the offence before he spoke to the police, his meetings with the accused and some of the differences between his testimony at trial and his statement to the police. After about 18 transcript pages of questions and answers, the witness became unresponsive. The trial judge took a brief recess. Thereafter, C.J. was initially unresponsive. The trial judge intervened saying, “You’ll have to try to answer”. The witness then resumed answering questions for a short time, then became almost totally unresponsive when portions of his police statement were put to him. This went on for about 16 transcript pages with the occasional nods of the head indicating “no” or “yes” in response to a few questions and verbal answers to a few other questions. During the cross-examination, some of the questions were either long or otherwise difficult to follow. For example, the following: Q. Now tell me, Alex, that you talked about, how many times would you or your and your brother, you and your brother and [S.], how many times did you see Alex before you were talking to Mr., Constable MacAulay the policeman? The main thrust of the cross-examination was putting sections of the witness’s police statement to the witness and asking him if he remembered saying that to the police. The following is typical: Q. Then the policeman asked you, you said question, [S.] sometimes Okay., now far as Alex touching your private parts, could you tell me how that happened and your answer was Um and answer, question, can you remember and you said no. Then he asked you did he ever touch your private parts and you said yeah. And then, how did he touch your private parts and you said, how did he touch it with your, with his hand, you said yes. And he asked how many times was it one time, two times, you said once. Do you remember telling the police that? A. (No response) Q. Do you [C.]? A. (No response) Q. The police asked you how did he get to see your private parts. They asked you just once, you said once. Is it just once. Did he ask you to show him your private parts, did you, did you show him your private parts or did he do it. Your answer was no. Do you remember telling the police that? A. (No response) Q. How did he get to see your private parts and touch them ... um ... the question do you remember? And you said no. Where did it happen, at the truck, your answer was in the truck. Then a question in the back, did you have your pants pulled down at all? Your answer was no. Do you remember telling the police that? A. (No response) Defence counsel did not request the judge to direct the witness to answer or to take any other step toward securing answers to the questions not answered. Aside from taking the adjournment and telling the witness that he would have to answer on one occasion, the trial judge did not take any other such steps. There was no indication from defence counsel that there were additional areas of cross-examination which he abandoned because of the witness’s unresponsiveness. On re-examination, the witness responded to some questions, but was largely unresponsive. Crown counsel tried to review some of the same matters relating to the witness’s previous statements, but the witness was largely unresponsive. The defence moved before the trial judge for a judicial stay or a directed verdict of acquittal. In declining to take either course of action, the trial judge, J. Michael MacDonald, J., as he then was, found that there had been a limited right to cross-examine, but that a directed verdict or a stay was not warranted. He stated, in part as follows: I agree that [the complainant] was unresponsive and acknowledge for the record that particularly when being questioned by Mr. Mollon [defence counsel] he put his back to him. He sat sideways for Ms Pentz [Crown counsel at trial] and put his back to Mr Mollon... In the case at bar there was a limited right to cross-examine. I think it is important to note that defense counsel was able to highlight inconsistencies in what [the complainant] told the Court on direct before the jury and what he may have said or what he did say at the Preliminary Inquiry and an earlier police statement. And the Crown admitted that, as far as the police statement was concerned, the questions and answers given in this statement were accurate. I think that is significant in the circumstances. It is also significant to note that the witness was subject to cross-examination at the preliminary inquiry and as noted the accused was able in this trial any inconsistencies (sic) raised from that procedure. A Stay is drastic remedy reserved for only the clearest of cases... This is not one of those clearest of cases...In the case at bar it is open for the jury to view the failure of [the complainant] to respond in a negative light and it is certainly open for defense counsel to highlight this in his submissions to the jury. But in all the circumstances I am not prepared to direct a verdict or to grant a Stay. There was other evidence before the jury. It included testimony and documents from the accused’s employer relating to the timing of his trips between North Sydney and Port aux Basques, evidence that the accused associated with young boys at the ferry terminal in the spring of 1995, and that he bought meals for or gave money to some of them. There was evidence that the accused sought directions from another child to the home of one of the complainants, and that the accused had told S.C. that he had a contest to see whose penis was bigger with one of the complainants and another boy. The defence did not call evidence. III. ISSUES ON APPEAL: The appellant argues that the witness’s unresponsiveness during cross-examination was a breach of his rights to a fair trial and to make full answer and defence. The witness was the complainant in two of the three charges and his evidence was relied on as similar fact evidence as regards the count involving S.S. The appellant, on this basis, argues that all three convictions should be set aside and a stay entered. The appellant also submits that the trial judge should have intervened more vigorously to impress upon the witness the importance of answering. No complaint is made respecting the trial judge’s charge to the jury. IV. ANALYSIS A. Overview The right to cross-examine is a cornerstone of the adversarial trial process. It is an important vehicle for the discovery of truth and is central to our understanding of fair procedure. However, even the most important rights have limits. As the Charter of Rights and Freedoms makes clear, our constitutionally guaranteed rights are fundamental, but they are not absolute. This case raises an unusual aspect of the right to cross-examine. Many cases have addressed limits on cross-examination arising from the disallowance of proper questions or exclusion of proper subjects of inquiry during cross-examination. Others have dealt with the admission of hearsay evidence in circumstances in which the declarant is not available for cross-examination. But this case does not raise any of these issues. Here, the witness, present for cross-examination, did not answer a significant number of the questions posed. The challenge of the case is, therefore, to define the right to cross-examine with respect to a witness who is unresponsive. The appellant alleges a breach of his Charter rights to a fair trial guaranteed by s. 11(d) and to make full answer and defence guaranteed by s. 7. The analysis required to consider this submission has two steps. The authority of the trial judge to allow the trial to continue 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 becomes unable or unwilling to respond to questions during cross-examination. 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, the common law rule confers a discretion, that discretion cannot, of course, be exercised so as to infringe the Charter. Both the rule itself and the exercise of discretion pursuant to the rule must operate within the boundaries set by the Charter. If the rule itself does not observe those limits, it should, if possible, be reformed by judicial decision so that it is consistent with Charter values; if it is the exercise of the discretion conferred by the rule, rather than the rule itself, which fails to respect the Charter, such exercise of discretion should be set aside as an error of law: see Dagenais v. C.B.C., [1994] 3 S.C.R. 835, per Lamer, C.J.C. for the majority at p. 874-6; R. v. Salituro, [1991] 3 S.C.R. 654 per Iacobucci, J. at p. 674. Therefore, it is first necessary to identify and describe the common law rule applicable to the situation facing the trial judge. Having done so, both the rule and its application here must be assessed for their compliance with the Charter. B. Traditional Rules of Evidence The appellant’s argument invokes concepts which, although expressed in the Charter of Rights and Freedoms, are as old as our system of law. There are several related rules which our legal system has developed which are relevant to the appeal and I will briefly review them. (i) Witness Refusing or Being Unable to Complete Cross-examination: There are some common law evidence cases which deal explicitly with situations in which a witness either refuses or becomes unable to complete the cross-examination by the opponent’s counsel. This relatively scarce case law is summarized by Professor Schiff as follows: On the rare occasions when a witness could not be questioned further after examination-in-chief was completed, courts have protected the right to cross-examination in various ways. If the witness refused to attend for cross-examination or, in attendance, refused to answer any questions, his testimony given in chief has been rejected. When the witness died or was wholly incapacitated by illness after examination-in-chief but before opportunity for cross-examination, some courts have struck out the testimony, or declared a mistrial. But, if responsibility for the lost opportunity did not rest with the witness or the party who called him, other courts and legal commentators have argued for the trial judge’s exercise of a flexible discretion - the testimony in chief might stand accompanied by the judge’s caution to the trier of fact about its dubious weight, or alternatively, completion of the testimony might be adjourned if a temporarily incapacitated witness could later attend. Absent fault of the witness or calling party, Wigmore encouraged admission of the testimony in chief if the loss of cross-examination caused the opposite party no material harm in the particular trial. (S.A. Schiff, Evidence in the Litigation Process (Master Edition, 1993) at pp. 294-5, citations omitted). (emphasis added) In several old English and Canadian civil cases in which the witness died or became incapacitated before cross-examination, the evidence was received and the lack of cross-examination was considered as going to the weight of the evidence: Ridley v. Ridley (1865), 55 E.R. 662; Elias v. Griffith (1877), 46 Ch. D.(N.S.) 806; Braithwaite v. Kearns (1865), 55 E.R. 612; Morley v. Morley (1855), 43 E.R. 1007; Randall v. Atkinson (1899), 30 O.R. 242 aff’d at 620. In the 1972 case of Meyer v. Hall (1972), 26 D.L.R. (3d) 309 (A.S.C.A.D.), the Court held that the decision concerning how to proceed in these circumstances was a matter for the discretion of the trial judge: at 312. The approach appears to have been different in the United States. Many of the older authorities there held that even when the inability to cross-examine was caused by the death or illness of the witness, the evidence-in-chief should not be received: see e.g. Citizens Bank and Trust Co. v. Reid Motor Co. (1939), 5 S.E. 2d 318 (N.C.S.C.); Re Sweeney’s Estate (1946), 22 N.W. 2d 657. However, Wigmore on Evidence, Volume 5, pp. 133-135, while noting that the approach of courts to the questions was not uniform, argued for a more flexible approach: There may have been an adequate opportunity of cross-examination so far as depends upon the nature of the tribunal or the state of the issues and parties; yet the required opportunity may nevertheless practically have failed, through circumstances connected with the conduct of the examination. These circumstances may be distinguished under six heads: (1) the witness’ death or illness intervening to prevent or to curtail cross-examination; (2) the witness’ refusal to answer on cross-examination or the party’s prevention of his answer; (3) the witness’ answering the direct examination “nonresponsively,” i.e., without dealing with the subject of the question; (4) the framing of the direct examination so as to prevent adequate cross-examination; (5) the lack of interpretation of testimony of an alien, etc.; (6) sundry circumstances preventing adequate cross-examination. (1) Where the witness’ death or lasting illness would not have intervened to prevent cross-examination but for the voluntary act of the witness himself or the party offering him - as, by a postponement or other interruption brought about immediately after the direct examination, it seems clear that the direct testimony must be struck out. Upon the same principle, the same result should follow where the illness is but temporary and the offering party might have recalled the witness for cross-examination before the end of the trial. But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun but unfinished suffices if its purposes have been substantially accomplished. Where, however, the failure to obtain cross-examination is in any sense attributable to the cross-examiner’s own consent or fault, the lack of cross-examination is of course no objection - according to the general principle that an opportunity, though waived, suffices. (emphasis added) There are few relevant English or Canadian criminal cases. In Randall v. Atkinson, supra, the Court adopts the rule set out in an old Irish criminal case, R. v. Doolie (1832), Jebb C.C. 123 that the evidence could be received and the absence of cross-examination considered in relation to the weight of the evidence. In R. v. Solomon (1958), 28 C.R. 312 (Man. C.A.), although in the context of an application to suppress commissions obtained by the Crown in relation to criminal charges, the Court stated that while the right to cross-examine where it is possible is unquestioned, the inability to cross-examine does not necessarily render the evidence-in-chief inadmissible. The Court refused to suppress the commissions stating: When a witness dies or falls ill after his examination-in-chief and before cross-examination, his evidence is admissible although its weight may be slight.: at 324 There are at least three modern English criminal cases. In R. v. Stretton and McCallion (1988), 86 Cr.App.R. 7 (C.A.), the complainant had chronic epilepsy and was mentally handicapped. She completed her evidence-in-chief, but after about 3 ½ hours of cross-examination, she became medically incapable of continuing her evidence. The trial judge allowed the trial to continue but directed the jury concerning the proper approach to the complainant’s evidence in these circumstances. On appeal, it was argued that the inability to complete the cross-examination had made the trial unfair and that the conviction should be quashed. The Court of Appeal held that the issue was one for the trial judge’s discretion and having regard to all the circumstances and, in particular, the content and extent of the cross-examination that had taken place, there was no basis to interfere with its exercise in that case. Stretton and McCallion enunciates several principles relevant to the issues on this appeal. The case involved a witness becoming medically unable to continue her evidence at the time of trial or in the future. It was, accordingly, in the category described by Professor Schiff in which the loss of the opportunity to cross-examine was not the fault of the witness or the party calling her. Consistent with Professor Schiff’s statement, the Court in Stretton and McCallion agreed that the trial judge, in these circumstances, had a discretion either to continue or not to continue with the trial. In reviewing the exercise of the trial judge’s discretion, the Court of Appeal identified important considerations. The first was the need to consider both fairness to the accused and the pursuit of truth. The Court said at p. 11: The consequence [of not allowing the trial to continue] would have been that, if [the complainant] had told the truth, she had been dealt with abominably by the two men in the dock, justice would not have been done. (emphasis added) Secondly, the Court reminded itself of the advantages of the trial judge who was present at trial and able to observe the witness. In particular, the trial judge was in a better position than the Court of Appeal to assess the likely effect of further cross-examination, had it been possible. In approaching the case, the Court stressed that, in its view, the key issue was whether there was any ‘real chance’ that more concessions from the witness might have resulted from further cross-examination. To consider this question, the Court minutely examined the effect of the cross-examination that was conducted and considered the submissions of counsel concerning the areas of cross-examination which he had intended to, but was prevented from pursuing. The Court also considered the most important issue to be whether there was sufficient evidence before the jury to enable it to fairly and properly assess her credibility. The Court also approved the trial judge’s decision to leave this issue to the jury with a caution that explicitly linked the deprivation of cross-examination to the obligation on the Crown to prove its case beyond a reasonable doubt. The trial judge said in his charge to the jury: What you have got to think about is this: whether you are satisfied in your own minds and sure that the cross-examination which Mr. Hopkins was able to do sufficiently probed and tested the evidence of Vera so as to enable you to judge fairly of her credibility. If you feel that Mr. Hopkins was deprived of the opportunity, and that means that his clients were, of properly testing and probing her evidence, why then my advice to you would be that you should acquit both these defendants because unless you feel sure that you as the jury are in a position to make a proper assessment as to her credibility, this case does not get off the ground and I am sure you realise that. This case stands for the proposition that a limitation of the opportunity to cross-examine does not result in an unfair trial if several conditions are met. First, the limitation should not result from the fault of the witness or the Crown. Second, in all of the circumstances of the case, the trier of fact has a reasonable basis upon which to evaluate the evidence. The extent of the cross-examination that occurred, the intended matters upon which cross-examination was prevented, the nature of the testimony and how it relates to the other evidence in the case are all matters that may be considered in carrying out this assessment. Third, the Court is able to conclude that further cross-examination was not likely to have improved the jury’s ability to assess the evidence. Fourth, the trial judge provides strong and clear guidance to the jury in the instructions. In R. v. Wyatt, noted at [1990] Crim. L.R. 343 (C.A., Criminal Division), the seven year old alleged victim was cross-examined for about 40 minutes. She became distressed and the trial judge decided that she could not proceed with her evidence. Counsel for the defence indicated that there remained one important question to ask but he was unable to ask it. The trial continued and the accused was convicted. On appeal it was argued that the trial judge had not adjourned the trial long enough to permit the witness to compose herself and that a specific warning along the lines of Stratton and McCallion had not been given. The appeal was dismissed. The Court of Appeal held that the length of the adjournment was within the discretion of the trial judge and there was no error in its exercise. The jury charge was fair and left it to the jury to determine the witness’ credibility. In R. v. Lawless and Basford (1994), 98 Crim. App. R. (C.A.), a somewhat more complicated situation faced the Court. The prosecution called one Davidson, knowing him to be very ill and in the face of medical opinion that he might not be able to complete his evidence. In his evidence-in-chief, Davidson strongly implicated one of the accused but implicitly exculpated the other. After the conclusion of his examination-in-chief, he became unable to continue his evidence so that no cross-examination was possible. The trial judge decided to continue with the trial and convictions were entered. The Court of Appeal set aside the convictions. The Court noted that Davidson’s evidence was “damning” and was “wholly unchallenged and untested by cross-examination”. Moreover, it appeared doubtful to the Court that any instruction could have overcome the “powerful prejudice” of this evidence and that crafting a correct instruction was made more difficult by the differential effect of the evidence on the two accused. I conclude that, in England, where cross-examination has been limited due to no fault of the witness or the party calling the witness, whether the trial should continue is a matter for the trial judge’s discretion to be exercised in the interests of assuring a fair trial and the pursuit of truth in light of all the circumstances of the case. While the rule in the United States may not be so clear, there is much to be said for Wigmore’s conclusion, to much the same effect, that there should be no inflexible rule and that the decision should be left to the trial judge on a case by case basis. It is difficult to reach any firm conclusions concerning the Canadian common law rule. Many of the cases are old and none of them deals with partial deprivation of cross-examination of a child witness. It is helpful, therefore, to examine some analogous common law situations before reaching a conclusion about the Canadian common law rule. (ii) Use of Preliminary Hearing Evidence at Trial: For many years the Criminal Code has included a statutory version of the common law hearsay exception relating to the use of evidence given in prior judicial proceedings. This provision is now found in s. 715 of the Code: 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 evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give 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 proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. (emphasis added) While this is a statutory provision, it is one of long standing and has clear origins in the common law of hearsay evidence. It is, therefore, appropriate to consider it here. The question of what constitutes a “full opportunity to cross-examine”, within the meaning of this section, arose in R. v. Devlin (1976), 32 C.C.C. (2d) 334 (N.B.S.C.A.D.). At the preliminary hearing, the witness testified for the Crown, but refused, after several initial questions, to answer on cross-examination. At the trial, the witness would not answer questions for the Crown and the trial judge permitted the Crown to read in the witness’s evidence at the preliminary inquiry. On appeal from conviction, the defence argued that the accused did not have the “...full opportunity to cross-examine the witness” required by the section authorizing the admission of the preliminary hearing evidence. The Court rejected the argument, holding that the “full opportunity to cross-examine” required by the section means that the defence must be given every opportunity which the Court and the law can provide to examine a witness. Limerick, J.A. stated: The opportunity to cross-examine a witness is not to be confused with the actual cross-examination. The Court or Crown can do no more than afford the opportunity for counsel to cross-examine by calling the witness to the stand and making him available to the defence. Neither the Court nor the Crown is charged with the responsibility of obtaining answers for the defence from a witness. The defence must accept the same risk as does the Crown of not obtaining the answers it wants or expects or indeed any answer from a witness. Even if counsel for the accused takes all measures available to compel a witness to answer relevant questions, there should be no disadvantage to the Crown because a witness refuses to answer on cross-examination apart from the question of credibility. (emphasis added) The reasoning of Devlin was applied to a situation in which a Crown witness (the accused’s brother) refused to be cross-examined by the defence in R. v. Henley, [1989] A.Q. No 1694 (C.A.) In essence, the Court held that, to use the words of Devlin, there should be no disadvantage to the Crown because a witness refuses to answer on cross-examination. These cases equate a full opportunity to cross-examine with having the witness available for cross-examination; the fact that the witness refuses to answer is irrelevant. This approach seems inconsistent with the common law authorities which I have reviewed in the preceding section. Moreover, this limited view of a full opportunity to cross-examine has not survived in the age of the Charter. In Potvin, [1989] 1 S.C.R. 525, Wilson, J. specifically doubted the continuing authority of cases such as Devlin, noting that their approach was not consistent with the constitutional status of the right to cross-examine. (iii) Hearsay Exceptions and Cross-examination: The common law recognized many exceptions to the hearsay rule. The effect of many of these exceptions is to admit evidence even though cross-examination of the person making the statement is not possible. The unifying elements of most of these hearsay exceptions were “necessity”, in the sense the evidence was not available in non-hearsay form and “reliability” in the sense that the circumstances in which the statement was made contained some circumstantial guarantee of trustworthiness to compensate for the inability to cross-examine. Many of these exceptions applied to statements made by persons deceased at the time of trial. While it is possible to state the general principles underlying the traditional common law rules, detailed study of the rules shows them to be highly technical and often irrational in the sense that the details are not consistent with the general principles. Beginning with its decision in Ares v. Venner, [1970] S.C.R. 608 but particularly after the 1990 decision in R. v. Khan, [1990] 2 S.C.R. 531, the Supreme Court of Canada has adopted a principled approach to hearsay exceptions, supplementing the strict requirement of the various exceptions and allowing hearsay evidence to be admitted when the threshold conditions of necessity and reliability are met. It is significant that most of these developments have occurred since the coming into force of the Charter. It may be safely assumed, therefore, that these common law developments are consistent with Charter rights. The requirement of necessity, as it has developed under this new “principled” approach, has been extended far beyond the traditional common law examples of the death or unavailability of the witness. For example, in R. v. B.(K.G.), [1993] 1 S.C.R. 740, admission of a witness’s prior inconsistent statement as truth of its contents was found to be “necessary” even though the witness was available and testifying. In that case, Lamer, C.J.C. for the majority, noted that necessity traditionally has related to the unavailability of the witness. He noted, however, that the Court had said in previous cases that necessity must be given a flexible definition and that there are examples of hearsay exceptions not requiring necessity such as admissions by parties, present sense impressions and business records. Ares v. Venner is an example of the latter exception. The Chief Justice held that necessity included cases in which “evidence of the same value” is not likely to be available in non-hearsay form and concluded that unavailability is not “an indispensable condition of necessity”: at p. 796-99. Under the principled approach, reliability has been considered as having two aspects. First, reliability has been considered as relating to the circumstances in which the statement was made which tend to assure its trustworthiness. Without attempting an exhaustive list of such circumstances, relevant considerations include whether the statement was made on oath, whether it is made in the presence of the trier of fact (R. v. B.(K.G.), supra), whether the maker had any motive to falsity, whether the story is one that the witness could imagine if the events had not occurred (R. v. Khan, supra), and whether, in all the known circumstances, the statement could reasonably have been expected to have changed significantly had the declarant testified and been cross-examined (R. v. Smith, [1992] 2 S.C.R. 915). There has been some controversy about whether corroborative evidence may be considered with respect to threshold reliability. Some comments in Supreme Court of Canada judgments suggest it may be: see e.g.: R. v. Khan, supra, at p. 548. There is, however, strong authority to the contrary: R. v. Conway (1997), 121 C.C.C. (3d) 397 (Ont. C.A.). The requirement of reliability has been seen as having a second aspect which is concerned with whether the trier of fact has a satisfactory basis for evaluating the truth of hearsay evidence. As Lamer, C.J.C. and Iacobucci, J. said in R. v. Hawkins and Morin, [1996] 3 S.C.R. 1043 at 1084: The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement.(emphasis added) Underlying the development of this second aspect of reliability is the concern that the trier of fact not be deprived of relevant evidence if the weight it should be given can be fairly assessed. For example, in R. v. Smith, supra, per Lamer, C.J.C. for the Court, said at p. 937: ....as this Court has made clear in its decisions in Ares v. Venner, supra, and R. v. Khan, supra, the approach that excludes hearsay evidence, even when highly probative, out of the fear that the trier of fact will not understand how to deal with such evidence, is no longer appropriate. In my opinion, hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability set out in Khan, and subject to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might result to the accused. Properly cautioned by the trial judge, juries are perfectly capable of determining what weight ought to be attached to such evidence, and of drawing reasonable inferences therefrom. (emphasis added) When considering reliability, in the sense of “capable of satisfactory assessment”, all of the circumstances of the case must be taken into account. This follows not because the other evidence in the case may “corroborate” the hearsay evidence, but because the evaluation of the hearsay evidence is conducted against the rest of the evidence in the case. To the extent that there is other evidence which is potentially useful to the trier of fact in conducting that assessment, its existence is also relevant to the consideration of whether the trier of fact has a satisfactory basis for determining the reliability of the hearsay evidence. The cases also recognize, however, that no or ineffectual cross-examination may seriously limit the triers’ ability to make this assessment. For example, in R. v. U.(F.J.), [1995] 3 S.C.R. 764, a case concerning the substantive admissibility of a witness’s prior statement, the Court said at p. 794: ... where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury’s ability to assess the ultimate reliability of the statement. To the same effect is the following statement of Labrosse, J.A. for the Ontario Court of Appeal in R. v. Conway, supra, at p. 410: ...How does cross-examination of the witness at trial afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement when the evidence of the witness at trial is “I don’t remember”? Cross examination becomes, to a large extent, an exercise in futility and does not serve as a substitute for contemporaneous cross-examination on the prior statement, as it does in most cases. ... In the present circumstances, the cross-examination was rendered virtually ineffectual by the witness’ testimony that he did not remember having made the inculpatory assertions recorded in the statement of December 11. Certainly, such a fruitless cross-examination does little to ensure that the reliability criterion for admissibility is met. (emphasis added) A number of principles relevant to the case at hand are evident. First, the hearsay cases illustrate a reluctance to prevent the trier of fact from hearing highly probative evidence out of fear that it will not be given appropriate weight. These cases are premised on the view that, with proper instruction from the trial judge, juries are perfectly capable of deciding the proper weight to be given to such evidence. The criterion of reliability differentiates between the threshold requirement going to admissibility and the ultimate reliability which is to be assessed by the trier of fact. The criterion of necessity, as developed in these cases, underlines the need for a sufficient reason to depart from the traditional rules; the concern is whether it is reasonably necessary to depart from those rules to obtain evidence of similar value. This suggests that the reason or the circumstances giving rise to the difficulty of proceeding according to the traditional rules needs to be explored. In other words, why is the witness not testifying on oath and subject to cross-examination? The availability of cross-examination is only one aspect of the ability of the trier of fact to assess the evidence. The presence of the witness is an important factor, as this permits the trier of fact to observe the witness while testifying; the taking of the oath or solemn affirmation is another as these underline to the declarant the importance of truthfulness: see R. v. B.(K.G.), supra at pp. 788-794. Finally, a careful instruction to the jury may go some of the way towards assisting the jury to assess the evidence fairly and properly despite the limitation on cross-examination. (iv) Children’s Evidence Over the last 10 years, there has been growing recognition that some rules of evidence and trial procedure do not adequately address the special needs of young witnesses, particularly in sexual abuse cases. This recognition has resulted in significant law reform, both by common-law development and by statute. For the purposes of this case, the two most relevant are the changes to the law of hearsay evidence as it relates specifically to children’s evidence and the provisions of the Criminal Code permitting a video-taped statement to be entered as evidence-in-chief in certain circumstances. I shall refer in this section to the common law development. The statutory reforms relating to videotaped statements are discussed in Section D, below. One of the first cases in the development of the principled approach to hearsay exceptions was R. v. Khan, supra, which raised the issue of the admissibility of a hearsay statement by a young child who was allegedly the victim of sexual assault. In the course of reasons for the Court, McLachlin, J. said: Because of the frequent difficulty of obtaining other evidence and because of the lack of reason to doubt many statements children make on sexual abuse to others, courts in the United States have moved toward relaxing the requirements of admissibility for such statements. ... These developments underline the need for increased flexibility in the interpretation of the hearsay rule to permit the admission in evidence of statements made by children to others about sexual abuse. ... ... Despite the need for caution, hearsay evidence of a child’s statement may be received where the requirements of Ares v. Venner are met. The general approach is summed up in the comment of Wilson J. in R. v. B.(G.), [1990] 2 S.C.R. 30, at p.55: In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. (emphasis added) While Khan is an important case in the general development of the principled approach to hearsay exceptions, it also should be placed in the context of reform of evidence law and trial procedure relating to child witnesses. McLachlin, J. describes these reforms in her judgment for the Court R. v. W.(R), [1992] 2 S.C.R. 122 at 132-134. She refers to two main developments. First, the notion that the evidence of children is “inherently unreliable” has been abandoned. Second, it has been recognized that “it may be wrong to apply adult tests for credibility to the evidence of children.” These developments, along with the reform of the hearsay rule as in Khan, reflect the underlying concern that rules of evidence and trial procedure must ensure fairness to the accused, but also should recognize the need to approach the evidence of child witnesses with flexibility and common sense. As McLachlin, J. put in R. v. W.(R.) at 134: ...these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case. (emphasis added) This same flexibility and common sense must be applied when considering the consequences of a child witness becoming unresponsive during cross-examination. It seems to me to be wrong to base the analysis on whether the unresponsiveness is the “fault” of the witness, as some of the older authorities do. While it may be appropriate to consider whether the party calling the witness and the party cross-examining have done what is reasonably possible to mitigate the difficulties of testifying, the primary focus of the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. This analysis should have due regard to the particular circumstances of the case, viewed realistically and with common sense by standards appropriate to a witness of the age and sophistication of the child in question. In short, the assessment must be made with the flexibility and common sense appropriate to child evidence generally, not according to stereotypes or rigid rules. C. Conclusion Respecting the Common Law Rule What, then is the Canadian common law rule which applies when a child witness is unable or unwilling to complete cross-examination? Some of the older common law authorities suggest that if the inability to cross examine the witness is the fault of the witness or the party calling the witness, the evidence-in-chief should be struck. I am not persuaded, however, this is an appropriate rule to apply to the case of a child witness, particularly where there has not been a complete inability to cross-examine. Rules of evidence and trial procedure need to be applied to child witnesses with flexibility and common sense and such a rule is inconsistent with that approach. In my opinion, the common law rule is that whether the trial may proceed after an incomplete cross-examination of a child witness or whether some other remedial action should be taken is entrusted to the discretion of the trial judge. That discretion is to be exercised taking into account the various factors discussed in the preceding sections with a view to ensuring both a fair trial for the accused and with due regard for the pursuit of truth. D. Do the Rule and the Exercise of Discretion Here Pass Charter Scrutiny? The examination of the common law rule is the starting point, but only the starting point of the required analysis. Charter rights are not frozen in time by existing common law rules. The Charter was intended to be normative and not merely descriptive. As McLachlin, J. said in R. v. Hebert, [1990] 2 S.C.R. 151 at 164 in the context of defining the scope of the right to silence guaranteed under s. 7: These considerations suggest that the task of defining the scope of the right of a detained person to silence under s. 7 of the Charter must focus initially on the related rules which our legal system has developed - in this case the confessions rule and the privilege against self-incrimination. However, that is not the end of the inquiry. The scope of a fundamental principle of justice will also depend on the general philosophy and purpose of the Charter, the purpose of the right in question, and the need to reconcile that right with others guaranteed by the Charter. (emphasis added) Accordingly, to determine whether the limitation on cross-examination that has occurred in this case was contrary to the Charter, it is necessary to consider not only the “related rules which our legal system has developed” but then to go on to consider those rules in light of the purposes of the Charter generally, the purpose of the right in question and the need to reconcile this right with others guaranteed in the Charter. There is no doubt that a full opportunity to cross-examine adverse witnesses is a principle of fundamental justice and an aspect of the right 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 that reason alone, inconsistent with either of these Charter rights. This point is illustrated by two decisions of the Supreme Court of Canada. The first is R. v. Potvin, [1989] 1 S.C.R. 525, a case which I shall discuss in more detail later in these reasons. The issue, simply put, was whether the Criminal Code section permitting use of a witness’s preliminary inquiry evidence at trial, when the witness refused to testify at trial, limited the accused’s rights under ss. 7 or 11(d). The Court acknowledged that it is a principle of fundamental justice that generally the accused should have a full opportunity to cross-examine an adverse witness: at 544. However, the Court noted that the scope and limits of this principle must be anchored in the basic tenets of our justice system, which include the common law principles of evidence: at 541. A similar point was made in a case dealing with the right to make full answer and defence. As Sopinka, J. said in R. v. Crawford, [1995] 1 S.C.R. 858 at 878, the right to full answer and defence does not imply that an accused can have, under the rubric of the Charter, an overhaul of the whole law of evidence. The existing framework of evidence law is, therefore, a key element in defining the right to a fair trial and in giving specific content to the principles of fundamental justice. This is particularly true with respect to the common law approach to children’s evidence, which has largely developed since the advent of the Charter and may, therefore, be presumed to reflect Charter values. I will briefly review three areas of Charter litigation. The first relates to the Charter challenge to statutory provisions permitting the admission of video-taped evidence. The second relates to a Charter challenge to the use at trial of preliminary hearing evidence and the third to a recent British Columbia Court of Appeal decision, R. v. Wyatt (1997), 115 C.C.C. (3d) 288 which addresses the issue of a witness unable, by reason of illness, to complete cross-examination. I will also examine, briefly, the position under U.S. law. (i) Video-taping Section 715.1 of the Criminal Code permits a video-tape of a witness’s evidence, made within a reasonable time after the alleged offence, to be admitted at trial. The section applies to the trials of a number of offences of a sexual nature where the alleged victim was under 18 years of age at the time the offence is alleged to have been committed. The section reads: 715.1 In any proceeding relating to an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273, in which the complainant or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant or witness describes the acts complained of, is admissible in evidence if the complainant or witness, while testifying, adopts the contents of the videotape. The constitutionality of this provision has been challenged on the basis that it offends an accused person’s right to be presumed innocent, the right to a fair trial and the right not to be deprived of liberty other than in accordance with the principles of fundamental justice. The Supreme Court of Canada unanimously upheld its constitutionality in R. v. L.(D.O.), [1993] 4 S.C.R. 419. Lamer, C.J.C., for the majority, noted that the purpose of the legislation is: ... to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse ... By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids the preservation of evidence and the discovery of truth. (at p. 428-29) (emphasis added) The Court has also interpreted this section to permit the use of the videotape even if the witness has no present memory at the time of trial of the events described in it: R. v. F.(C.C.), [1997] 3 S.C.R. 1183. Cory, J., writing for the Court, acknowledged that this approach significantly diminishes the extent to which cross-examination at trial will be effective to test the reliability of the evidence. He noted at p. 1203: ...a witness who cannot remember the events cannot be effectively cross-examined on the contents of his or her statement and therefore the reliability of his or her testimony cannot be tested in that way. However, it was recognized in R. v. Khan; R. v. Smith and R. v. B (K.G.) (citations omitted) that cross-examination is not the only guarantee of reliability. (emphasis added) Cory, J. also recognized that cross-examination frequently will not be a particularly useful mechanism for the evaluation of a child witness’s testimony and that mainstays of the cross-examination of adults, such as the use of prior inconsistent statements, may not be of much significance in assessing a child’s credibility. He referred to the following passage in the judgment of Wilson, J. in R. v. B.(G.), [1990] 2 S.C.R. 30 at 55: ...a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult . . . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. (emphasis added) Cory, J. continued: A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility. (emphasis added) Section 715.1, as interpreted by the Court, gives the trial judge discretion to exclude the videotape if its prejudicial effect outweighs its probative value: R. v. L.(D.O.), supra, at p. 429 and p. 461. This is consistent with what L’Heureux-Dubé, J. described in her concurring reasons in the case as “[t]he modern trend ... to admit all relevant and probative evidence and to allow the trier of fact to decide the weight to be given to the evidence ...” at 454-5. This presupposes, of course, a reasonable basis for fair evaluation of the evidence by the trier of fact and a sufficient reason to admit the evidence other than in the traditional way. (ii) Preliminary Hearing Evidence: The Supreme Court of Canada has held that a full opportunity to cross-examine the adverse witness is a principle of fundamental justice: see R. v. Potvin, [1989] 1 S.C.R. 525 per Wilson J at 544. However, this does not mean that an inability to have a full and effective cross-examination at trial will, in all circumstances, result in an unfair trial. For example, in Potvin , the constitutionality of the Criminal Code provisions allowing the use of preliminary hearing evidence at trial were upheld, principally on the basis that there was a right to cross-examine at the preliminary inquiry and a discretion in the trial judge to refuse to permit the evidence to be admitted if, in the particular circumstances of the case, its admission would operate unfairly to the accused. The Court also found that it was not, generally, inconsistent with the Charter to require the accused to prove that he or she had been deprived of a full opportunity to cross-examine. As Wilson, J. noted at p. 547, only accused persons and their counsel can know this because: a denial or restriction can only have taken place if the intention or desire to pursue certain questions was present and was frustrated. As noted, the Court also held in Potvin that a trial judge has the discretion under the section to refuse to allow the evidence if its admission would operate unfairly to the accused. The exercise of this discretion should take into account both fair treatment of the accused and society’s interest in the admission of probative evidence to get at the truth: at p. 553. Unfairness may relate to the manner in which the evidence was obtained, or to the effect of its admission on the fairness of the trial. The brief discussion in Potvin of the factors to be considered in exercising this discretion is instructive. Points favouring admission include: the fact that there had been a right to cross-examine at the preliminary hearing and that there had been “some” cross-examination; that there was corroboration at trial of the absent witness’s evidence and that the evidence of the absent witness was highly probative of important issues in the case. Tending to favour exclusion are the fact that the credibility of the absent witness was crucial to the defence and the jury had no opportunity to observe his demeanor as an aid to assessing his credibility. The Court also found there generally should be a warning to the jury of the dangers of accepting evidence and attempting to assess credibility in the absence of cross-examination. (iii) R. v. Wyatt: In R. v. Wyatt (1997), 115 C.C.C. (3d) 288 (B.C.C.A.), there had been effectively no cross-examination and the critical issue in the case related to the witness’s consent to the sexual activity giving rise to the charge. Because the adult complainant had suffered a serious brain injury as a child, there was no possibility of the witness being able to continue the cross-examination. Cross-examination at the preliminary inquiry had become pointless because of the witness’s answers at that time. The introduction of the preliminary hearing evidence would not have provided the trier of fact with any greater appreciation of the witness’s evidence and the statements given to the police would not have provided assistance in determining the issue of consent. In short, the accused was precluded from testing the complainant’s evidence on the crucial issue in the case, that is, consent - an issue particularly within her knowledge. The Court of Appeal upheld the trial judge’s decision to enter a stay. The Court stated that a trial judge is bound to see that there is a fair trial and that if the accused’s right to a fair trial cannot be protected, and a miscarriage of justice might result, one of the options open to a trial judge, if the right cannot be protected in any other way, is to issue a stay of proceedings. However, the Court noted that the entry of the stay, in these sorts of circumstances, is a matter for the trial judge’s discretion. The exercise of that discretion should not be interfered with on appeal given the trial judge’s conclusion that the accused could not test the complainant’s evidence on the central issue in the case [i.e. consent] and that the only alternative was a stay of proceedings. (iv) U.S. Authorities There is voluminous case-law from the United States concerning the effects of limitations of cross-examination. While, of course, care must be taken not to adopt, without analysis, conclusions and principles emerging from a different constitutional context, I have found several U.S. cases relating to limitations on the cross-examination of child witnesses helpful and generally supportive of the conclusions I have reached in this case. The Confrontation Clause in the Sixth Amendment to the U.S. Constitution, as well as provisions in many State constitutions, protects an accused’s general right to cross-examine witnesses in criminal proceedings. As expressed in a leading U.S. Supreme Court decision, the Confrontation Clause “... guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defence might wish.”: Delaware v. Fensterer 474 U.S. 15 at 20 (1985). In U.S. v. Tome, 3 F.3d. 342, (10th Cir., 1993), the Court dismissed Tome’s appeal from his conviction for aggravated sexual abuse of his daughter who was 6 ½ years old at the time of trial. She completed her evidence-in-chief and was extensively cross-examined about numerous matters that had no direct relation to the alleged abuse. When the cross-examination turned to other matters, such as conversations between the witness and the prosecutor, the child provided no audible response. The child’s (referred to as A.T.) testimony was described by the Court as follows: A.T. testified at trial and answered questions on cross-examination. Over the course of two days, the defense asked A.T. approximately 348 questions on cross-examination, covering nearly fifty-one pages of trial transcript. On the first day, A.T. answered all of the questions posed to her, all of which were background questions or otherwise not directly related to her allegations of abuse. Cross-examination on the second day was more difficult. The defense asked about 249 questions, approximately sixty-six of which elicited no audible or discernible response. Defense counsel began by asking A.T. about her meetings with the prosecutor on Tuesday, the day between her first and second days of cross-examination. A.T. acknowledged that she met with the prosecutor for a short period of time but was very reluctant to discuss the content of those conversations, generally stating that she did not remember the specific things they talked about. Except for a few questions about her conversations with the prosecutor, however, A.T. eventually responded to the substance of all of the defense’s inquiries. Thereafter, defense counsel began asking A.T. about her allegations of abuse. After a few questions, the district court called for a recess and made observations on the record about A.T.’s testimony on cross-examination. When questioning resumed, defense counsel asked A.T. many questions about to whom she may have mentioned the abuse, and A.T. answered all but a few of those questions. Her answers ranged from specifically acknowledging or denying making certain statements to claims of forgetfulness. Although she failed to respond initially to this line of questioning, it often was the result of imprecise cross-examination. For example, defense counsel asked A.T. four times whether she remembered talking to a counselor, and four times failed to elicit an audible response, before learning that A.T. did not know what a counselor was. At one time, the court admonished defense counsel, suggesting that the questions might be too complicated for a six and one-half year old witness. The Court’s holding with respect to the Confrontation Clause was as follows: The Confrontation Clause “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 295, 88 L.Ed.2d 15 (1985). The concerns animating the Confrontation Clause are satisfied as long as the defendant has the opportunity to expose weaknesses in the witness’ testimony. See Owens, 484 U.S. at 559, 108 S. Ct. at 842, see also Kennedy v. Stincer, 482 U.S. 730, 744, 107 S. Ct. 2658, 2667, 96 L.Ed.2d 631 (1987). Forgetfulness, for example, does not render cross-examination constitutionally infirm because the defense can use the witness’s poor memory and trial demeanor to attack the witness’s credibility. Owens, 484 U.S. at 559-60, 108 S. Ct. at 842-43; Fensterer, 474 U.S. at 20, 106 S. Ct. at 295. In this case, the defendant likewise had the opportunity to mount a successful attack against the partially nonresponsive witness and, in fact, rarely missed an opportunity to comment on the difference between A.T.’s testimony on direct and on cross-examination. Therefore, notwithstanding A.T.’s failure to respond to some questions on cross-examination, we find that Tome’s rights under the Confrontation Clause were not violated because A.T.’s testimony provided him a sufficient opportunity to discredit her out-of-court statements. (emphasis added) A case reaching the opposite conclusion is Commonwealth v. Kirouac, 542 N.E. 2d 270 (Mass. S.C., 1989). The alleged victim, who was six at the time of trial, was said by the Court to have “... resisted answering all questions put to her on cross-examination.” (at 272). The Court’s conclusion was that the accused had been afforded no meaningful right of cross-examination on evidence crucial to the prosecution’s case. Most relevant for my purposes is the Court’s description of the applicable legal principles: In deciding whether a defendant’s constitutional right to cross-examine and thus confront a witness against him has been denied because of an unreasonable limitation of cross-examination, a court must weigh the materiality of the witness’s direct testimony and the degree of the restriction on cross-examination. The determination can only be made on a case-by-case basis. Cross-examination that is somewhat impeded, but not totally foreclosed, presents a weaker case for finding a denial of rights than a complete absence of cross-examination. (emphasis added) The Court in Kirouac also referred to its earlier decision in Commonwealth v. Amirault, 535 N.E. 2d 193 (Mass. S.C., 1989) as follows at pp. 273-274: Commonwealth v. Amirault, 404 Mass. 221, 535 N.E. 2d 193 (1989), involving a claim that indictments alleging rape and indecent assault and battery of a child should have been dismissed because the defendant’s right to confrontation was denied. The court concluded that the opportunity to cross-examine the child witness was not denied where, in response to some of defense counsel’s questions about matters to which she had earlier testified, the child witness stated that she did not remember. In the Amirault opinion, the court distinguished cases involving a refusal to answer questions from the situation then before it. Id. at 234, 535 N.E. 2d 193. We have reviewed the testimony of the child witness in the Amirault case and find it to be qualitatively different from Valerie’s testimony. The seven-year-old witness in the Amirault case answered almost all questions asked of her, did not assert a lapse of memory as a general response to questions, and appears to have fully and willingly participated in the cross-examination to the best of her ability. Nothing like what appears in this case ... occurred there. In this case, there was no meaningful right of cross-examination ... The decision of the Supreme Court of Montana in State v. McNatt, 849 P. 3d 1050 (1993) is helpful. The nine year old witness, called to prove a recent complaint, became unresponsive when cross-examined on prior inconsistent statements. The Court dismissed the argument on appeal that the accused’s rights to confront and cross-examine had been denied. Although the witness did not respond specifically to the questions concerning the prior statements, they were proved through the evidence of a paralegal who had heard them. The Court concluded as follows: After reviewing the record in this instance, we hold that the trial court did not deprive McNatt of his constitutionally guaranteed right to confront and cross-examine witnesses when it removed the nine-year-old child from the stand after she repeatedly broke down in tears at a certain point in the questioning. The line of questioning at the time of the juror’s interruption and Tasha’s removal from the stand was intended to raise questions about her credibility due to the fact that her pretrial statement conflicted with her trial testimony. Even though Tasha never gave the specific answer which defense counsel was attempting to elicit, it was not unreasonable for the judge, after the question was repeated several times, to decide that continued questioning would probably not accomplish anything further. Moreover, the paralegal’s subsequent testimony, which confirmed the inference raised in the question asked of Tasha, effectively put her credibility into issue. Although McNatt argues that testimony by a third party is not as effective as an admission by the party being questioned, the record does not suggest that continued pressure from defense counsel would have resulted in anything other than further loss of composure of the witness. (emphasis added) I would refer finally to Walters v. McCormack, 122 F. 3d 1172 (9th Cir., 1997). On an appeal from denial of habeas corpus, Walters argued that his confrontation rights were violated by the admission of the evidence of the child victim. The child’s evidence was, according to the Court, “... riddled with inconsistencies and did not comprise a clear, unequivocal narrative of events.” (at 1175). The Court rejected the argument, stating: “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (per curiam) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L.Ed.2d 15 (1985)). When a witness gives “testimony that is marred by forgetfulness, confusion, or evasion .... the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination.” Fensterer, 474 U.S. at 22, 106 S. Ct. at 295. Walters had such an opportunity. (emphasis added) From this brief review, I conclude that the right to cross-examine in U.S. federal and state constitutional law is at least roughly similar to the Canadian position as I have described it. In cases of a partial, as opposed to a total, limitation on the opportunity for effective cross-examination of a child, there is no inflexible rule. Instead, the fairness of the trial must be assessed having regard to a number of considerations including the materiality of the evidence and the degree of restriction on cross-examination. V. CONCLUSIONS: It is now useful to synthesize the principles emerging from the common law and Charter authorities to be applied when the accused claims that the trial has become unfair or to have been denied the right to make full answer and defence because a child witness is unresponsive during portions of the cross-examination. The starting point is that there is no short, dispositive “test” for whether these rights have been denied or to determine the proper response. These are matters for the discretion of the trial judge taking account of all relevant considerations. In considering whether the trial is unfair, or the right to make full answer and defence has been limited, the factors which the trial judge should consider may be grouped under three main headings. Without attempting to be exhaustive or definitive, it may be helpful to outline briefly some of the relevant matters under those headings. A. The reason for the unresponsiveness: 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. This suggests that if the unresponsiveness could have been avoided by reasonable action or if evidence of the same value is or could have been available in some other way and within a reasonable time, the evidence generally should not be admitted without full cross-examination. The opportunity to cross-examine includes, at a minimum, the right to have answers that are responsive to the questions asked. The court must carefully consider any conduct of the witness or the party calling the witness which has the effect of frustrating the opportunity to cross-examine. In the case of child witnesses, the court may consider whether the unresponsiveness results from the nature of the process and whether appropriate steps have been taken to reduce the embarrassment and discomfort of testifying. In this case, none of the procedures available under the Criminal Code to reduce the difficulty of testifying for children was used. Apparently video-taping was not readily available to the police. The record indicates that there was some discussion of the use of a screen at a pre-trial conference, but one was not used. No support person, as permitted by s. 486(1.2) of the Code, sat with the witness. These issues were not explored at trial or on appeal and I will, therefore, not address them further for the purposes of this case. Moreover, in this case, there is no indication in the record that the witness was attempting to thwart full cross-examination. The witness was reluctant and frequently unresponsive during both examination-in-chief and cross-examination. I will say, however, that where a child witness is unable or unwilling to testify during cross-examination, the trial judge is entitled to consider, within the limits of the evidence before the court, whether the failure to take steps to reduce the difficulty of testifying has contributed to the unresponsiveness. If it has, this will be a factor tending toward a finding that the trial has become unfair, at least if the difficulty that arises was reasonably foreseeable. Similarly, there may be steps available to cross-examining counsel to help elicit answers. These include requesting the trial judge to direct the witness to answer or requesting an inquiry as to why the witness is not responding. The trial judge may be justly reluctant to take such steps of his or her own motion because counsel’s approach may result from a tactical decision. Where no request for the judge’s intervention is made by counsel, this is a factor tending toward a finding that the trial has not become unfair as a result of the unresponsiveness. In this case, no such steps were requested by defence counsel and, in my opinion, the trial judge should not be faulted for failing to intervene more forcefully absent such a request. The manner of questioning may contribute to the difficulty. If questions are not posed in a clear and age-appropriate manner, the unresponsiveness may be attributable, in whole or in part, to the manner of questioning. If the trial judge concludes that this is the case, it will be a factor tending against a finding that the unresponsiveness has rendered the trial unfair. In this case, some of the questions in cross-examination were not clear or age-appropriate although there were many other questions not responded to which were both clear and age appropriate. B. The Impact of the Unresponsiveness: 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. 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. 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. 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. 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. In making this assessment, the trial judge should consider the special nature of cross-examination of a child. Where the witness is unresponsive on the stand, it may be appropriate to compare the effect of the unresponsiveness with a situation in which the witness simply professes not to remember or not to know. The greater confidence that the judge has that further cross-examination would have been ineffectual, the less inclined the judge should be to find that the trial is unfair. In this case, the witness was a key witness for the prosecution and the case turned primarily on the assessment of his credibility. The jury had the opportunity to observe him while testifying and to assess the impact of his unresponsiveness on his credibility. There was other evidence in the case which the jury may have found helpful in considering this question. Evidence of prior inconsistent statements was placed before the jury and the witness’s unresponsiveness when faced with these was not in any way prejudicial to the defence. It was not suggested by defence counsel that there were any areas other than those appearing in the record which were left unexplored because of the unresponsiveness. C. Possibilities of Ameliorative Action: Before concluding that the trial has become unfair or whether there has been a denial of the right to full answer and defence, the trial judge should consider whether the limitation on cross-examination can be remedied or at least ameliorated. For example, the trial judge should consider whether the difficulty with the witness is likely to be permanent. If there is a reasonable prospect of the witness becoming responsive in a reasonable period of time, consideration should be given to postponement of the 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’s case in the sense that the Crown would proceed even without the witness’s evidence, consideration may be given to striking the witness’s evidence or, if necessary, declaring a mistrial and proceeding afresh without the witness. Consideration should also be given to the utility of a proper instruction to the jury. In the case before us, the issue was not consent, but whether the alleged acts had been committed. The trial judge addressed himself to the relevant considerations, noted that while effective cross-examination had been limited, it had not been entirely negated and that inconsistencies between the evidence-in-chief and prior statements had been fully placed before the jury. The problems with the complainant’s evidence were fully presented to the jury in the submissions of defence counsel. The trial judge also drew these matters to the attention of the jury in his charge, the adequacy or correctness of which is not challenged on appeal. The trial judge concluded that the limitation on cross-examination, in the particular circumstances of this case, did not render the trial unfair and decided to allow the trial to continue. The common law rule conferred on him the discretion which he exercised. I am not persuaded that either the rule, or the manner in which the discretion was exercised in the circumstances of this case violated the appellant’s Charter rights. VI. DISPOSITION: I would dismiss the appeal. Cromwell, J.A. Concurred in: Roscoe, J.A. Bateman, J.A. C.A.C. No.148518 NOVA SCOTIA COURT OF APPEAL BETWEEN: WILLIAM ALEXANDER HART ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: HER MAJESTY THE QUEEN ) ) CROMWELL, J.A. ) Respondent ) ) ) ) ) ) )