New trial ordered: Judge suspected complainant faked medical issue to evade cross-examination

The Court of Appeal has ordered a new trial in a sexual assault case where the trial judge granted a stay of proceedings after suspecting the complainant had lied about a medical issue to avoid cross-examination.

In R. v. Ke, 2021 ONCA 179, released March 22, Justices David Watt, Michal Fairburn and Grant Huscroft found the trial judge did not apply the appropriate tests in rejecting adjournment and entering a stay of proceedings, and relied on findings of fact as to the complainant’s absence that “were at best tenuous, if not entirely speculative.”

The decision reinforces that the granting of a stay is only given in the “clearest of cases,” and defence lawyers should consider other options when a witness does not show up, says Ashley Sewrattan, a lawyer at Sewrattan Criminal Lawyers, who was not involved in the matter.

“Courts are always hesitant to grant this as the remedy. It's sort of an extraordinary remedy,” says Sewrattan. “I thought that this decision is a helpful reminder to defence counsel to consider available remedies for the failure of material witnesses to attend, rather than seeking a stay.”

Instead of a stay, the defence can ask for the adjournment to be dismissed, forcing the Crown to proceed with a weak case, with the possible result of an acquittal, she says.

The trial began on Aug. 30, 2018, continued the next day and then was adjourned until Jan. 15, 2019. When proceedings resumed, the complainant was not there. She had flown to China that day “for a medical reason,” said the decision. Also that day, the Crown learned that the complainant had sent an email to the Victim Witness Assistance Program, explaining the travel plans and asking for a postponement, on Nov. 2. But the email had ended up in the junk mail folder and was not discovered until Jan. 15.

The Crown told the court the complainant had already testified, had shown no unwillingness to continue and had explained the reason for her absence well before the return date. The Crown added that the complainant was a student who was new to Canada and unfamiliar with its legal system.

Justice Joyce Pelletier then asked defence counsel the remedy for a witness failing to attend their cross-examination. The defence proposed a stay of proceedings on three grounds: compromise of trial fairness, disbelief of the explanation for the absence and the “torturous conditions” being endured by the accused while waiting for trial. Pelletier said she was “of the opinion” that the complainant had left the country to dodge cross-examination and said that doing so after being subpoenaed to attend was “most prejudicial.” She granted the stay.

The Crown had asked Pelletier for an adjournment and on appeal, argued the judge had erred in denying one. Though a judge has wide discretion in deciding whether to grant an adjournment and is entitled to “considerable deference on appeal,” that deference crumbles when exercised unreasonably or flawed by legal error, wrote Justice Watt for the Court of Appeal’s panel. The trial judge did not consider or apply Darville v. The Queen, the 65-year-old decision which provides the test for ordering an adjournment when a material witness has failed to attend.

In addition to the legal error of not applying the relevant framework, Pelletier made two fact findings unsupported by the evidence. As to the accused being under “torturous” bail conditions, Watt writes that he was not in custody, was neither on house arrest nor under curfew and merely had to surrender his passport and wear an electronic monitoring device – until it was ordered removed Aug. 31, 2018. The record on the behaviour of the complainant also did not support the finding that she was claiming a medical reason to avoid cross-examination, said Watt.