Securing trial fairness

The primacy of a defendant’s absolute right to a fair trial is preserved in aspects of Canadian evidence law concerning the withholding of disclosure in the interests of national security: R v Ahmad, 2011 SCC 6 (10 February 2011). This is because the court can, in the event that absence of disclosure compromises the right to a fair trial, order a stay of proceedings.

The legislative scheme under consideration in Ahmad is ss 38 to 38.16 and 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Section 38.14 provides:

Protection of right to a fair trial

38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) [permiting disclosure] in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13 [prohibiting disclosure].

Potential orders

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

The Court, in a unanimous judgment, held [2] in relation to a conflict between the interests of national security which require concealment of information and the interests of the defendant,

“Where the conflict is irreconcilable, an unfair trial cannot be tolerated.
Under the rule of law, the right of an accused person to make full answer and defence may not be compromised.”

This requirement of trial fairness was the criterion for constitutional validity of the legislation [5]. The important consideration was the flexibility of the legislated scheme [7]:

” … the net effect is that state secrecy will be protected where the Attorney General of Canada considers it vital to do so, but the result is that the accused will, if denied the means to make a full answer and defence, and if lesser measures will not suffice in the opinion of the presiding judge to ensure a fair trial, walk free. While we stress this critical protection of the accused’s fair trial rights, we also note that, notwithstanding serious criticisms of the operation of these provisions, they permit considerable flexibility as to how to reconcile the accused’s rights and the state’s need to prevent disclosure.”

Important here is the context in which a stay of proceedings may have to be considered. Usually the stay is described as a remedy of last resort, but here a stay of proceedings may be required even though not all the information has been disclosed to the judge who therefore could not say that it was necessarily the only appropriate remedy [34-35].

There is no obligation on the defence to assist the court (for example by undertaking not to disclose to the defendant information given by the prosecution to counsel, see [30]) to avoid the need to order a stay [78]:

“… the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information.”

The trial judge must be able to “conclude affirmatively” [35] that the right to a fair trial has not been compromised.

For my analysis of trial fairness in various leading appellate courts, click here.

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Second thoughts

A witness’s privilege against self-incrimination

Cases of alleged domestic violence are among those where a complainant may wish to deny the truth of her earlier complaint or of her evidence in pre-trial proceedings. She would then be admitting wasting police time by making a false complaint, or perjury. Will she be able to claim a privilege against self-incrimination so that she is not forced to give evidence incriminating the defendant at his trial?

This depends, as the New Zealand Supreme Court held in DK Singh v R [2010] NZSC 161 (17 December 2010), on how “likely” (s 60(1)(b) of the Evidence Act 2006[NZ]) it is that provision of the information sought would be used to incriminate the witness, that is, on whether there is a “real and appreciable” – as opposed to a “merely imaginary and fanciful” risk of incrimination (Singh at [31], citing Cockburn CJ in R v Boyes (1861) 1 B & S 311 at 330, 121 ER 730 (KB) at 738). In the circumstances of Singh the Court assessed this likelihood as sufficiently low to justify denial of the privilege.

The Court added that the privilege belongs to the witness, and it is not open to the appellant to make the claim on her behalf if she had waived it, applying R v Kingslake (1870) 11 Cox CC 499 (QB) and noting the consistency with s 60(4)(b) of the Evidence Act 2006.

Hostility and prior consistent statements

In the trial in this case the Crown had obtained a ruling that the witness was hostile, so that by cross-examination it was revealed that she had previously stated that the alleged offences had occurred. The defence then sought to have some of her prior consistent (that is, consistent with her denials of the offending) statements admitted under s 35 of the Evidence Act. But on the facts here the Court assessed those statements as not having sufficient probative value to make them “necessary to respond” to the Crown’s challenge to the witness’s accuracy or veracity, and held that their selective nature would make admitting them unfair to the prosecution and would require a time-wasting diversion (s 8 Evidence Act).

Trial unfairness

The appellant’s fundamental argument was that the trial had been unfair. This is dealt with at the end of the judgment [59-61]. This argument was put on the grounds (as I would paraphrase on the basis of my analysis of trial fairness) that the jury would not have assessed the evidence impartially because the witness’s credibility had been improperly undermined. It seems from the judgment that the unfairness argument was based on the jury not having been given a direction that they might consider that her clumsy attempts to deny that the offending had occurred were due to her fear of being prosecuted for perjury. That is, there was a real risk that the jury’s assessment of the value of her evidence was not an impartial assessment because all relevant considerations may not have been taken into account.

The Court concluded that the jury had been given sufficient information to be able properly to assess the witness’s credibility. A fear of prosecution would not have affected the way she gave evidence.