Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
Today, Kyla Lee from Acumen Law Corporation discusses a significant case involving testimonial accommodations and hearsay exceptions, raising concerns about the right to cross-examination in criminal trials.
Key Issues Discussed:
The Case:
In an aggravated sexual assault trial, the complainant attempted to testify but was unable to continue due to fear of the accused.
The court accommodated the complainant by allowing testimony via closed-circuit television (CCTV) from a separate location.
Despite this, the complainant remained unable to testify, and the Crown applied to admit her police statement as hearsay evidence for the truth of its contents.
The defence objected, arguing this violated the accused’s right to cross-examine their accuser.
The trial court admitted the statement, leading to a conviction. The appeal courts upheld the decision, and the Supreme Court of Canada denied leave to appeal.
Why This Case Mattered:
Expansion of Hearsay Exceptions in Criminal Trials:
Traditionally, hearsay evidence is only admitted when a witness is truly unavailable—such as due to death, memory loss, or disappearance.
This case broadens that to include unwillingness to testify, which could undermine fair trial rights.
Balancing Survivor Accommodations & The Right to Defence:
Courts have introduced various measures to help sexual assault complainants testify, such as:
Testifying behind a screen
Having a support person present
Using closed-circuit video
The concern: Should fear alone justify bypassing cross-examination?
Potential Impact on Future Cases:
If hearsay exceptions expand to include witness unwillingness, accused persons may lose the right to challenge key evidence in cross-examination.
This sets a precedent where out-of-court statements could become more admissible than live testimony, weakening fair trial protections.
Missed Opportunity by the Supreme Court:
By refusing to hear this case, the Supreme Court left critical legal questions unresolved:
Should an unwilling witness be treated the same as an unavailable witness for hearsay purposes?
How should courts balance complainant accommodations with an accused’s right to cross-examine?
Do modern technological solutions (CCTV, remote testimony) eliminate the need for expanding hearsay exceptions?
A ruling could have set clear limits on testimonial accommodations while protecting the rights of both complainants and the accused.Post navigation
