Appeal Court of Alberta: Death of complainant no impediment to conviction

By John L. Hill

Law360 Canada (May 11, 2023, 10:31 AM EDT) --
John L. Hill
John L. Hill
What if a complainant in a sexual interference case dies before testifying at trial? Is a conviction still possible? Greggory Morray Mitchell of Alberta found out the answer was “yes” and that finding was upheld by the Alberta Court of Appeal (R. v. Mitchell 2023 ABCA 119).

There were two scenarios put before the court. The complainant was a 13-year-old girl who claims she was subjected to having her breasts and vaginal area touched by Mitchell while her grandmother was temporarily absent. Mitchell instructed her to tell no one, and she did not until over a week later when she told her school principal what occurred. The school reported it to police who interviewed the complainant on video. She later testified promising to tell the truth at a preliminary hearing. She died of malaria two years later before the matter went to trial.

According to Mitchell, the girl was left with him while the grandmother was away. With only the two in the room, the girl became sexually provocative. Mitchell admonished her and her account as a complete fabrication, possibly to prevent her family learning of her errant behaviour and reprimanding her for it.

At trial, the Crown moved to have the complainant’s statements admissible under s. 715 of the Criminal Code that provides a statutory exception to the hearsay rule.

That section provides that in certain instances, one of them being the death of the witness, evidence can be used if taken in the presence of the accused and that the accused has full opportunity to cross-examine.

At the preliminary hearing, Mitchell claimed he did not have an opportunity to be present during the videotaping. Furthermore, another cell phone interview was taken that had not been disclosed when the preliminary hearing took place. Therefore, Mitchell argued, the requirements for admissibility under s. 715 were not met since he lacked the full opportunity to cross-examine.

The trial judge admitted the evidence that would otherwise be inadmissible as hearsay noting that the complainant had adopted the statements made on video and was subject to cross-examination at the preliminary hearing.

The Court of Appeal upheld the trial judge’s decision to admit the video evidence and the later-produced cell phone interview because having it admitted into evidence dealt only with establishing “threshold reliability.” Ultimate reliability would be determined by looking at the evidence in its entirety and consideration of counsels’ closing addresses at trial.

In those closing arguments, counsel for Mitchell had noted certain inconsistencies in the video and transcribed evidence of the complainant. The Crown argued that a flaw in the testimony of a child need not be given the same weight as flawed testimony of an adult witness (R. v. R. 2004 MBQB 69).

In the end, the trial judge believed the complainant’s version and the trial judge is entitled to be given deference in assessing credibility. The trial judge was cognizant of the issues at trial and to the frailties of hearsay evidence especially because of the complainant’s passing. The trial judge had admitted all the complainant’s preliminary inquiry evidence, not just the videotaped statement to police.

The trial judge had correctly allowed hearsay evidence in accordance with s. 715.1 of the Code, and she recognized that ultimate reliability involves the trier of fact deciding the issues in the context of the trial evidence as a whole (R. v. Khelawon 2006 SCC 57). The trial judge considered and rejected Mitchell’s position that he had been prejudiced by the Crown’s late disclosure. He had not been denied his right to a fair trial and had it open to him to make full answer and defence.

With no error apparent in the proceedings and giving the trial judge the deference in the weighing of credibility, no reversible error had been shown. The appeal was dismissed. Mitchell was ordered to surrender himself to correctional authorities.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

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