National Post

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Saturday, October 16, 1999

Chief justice clashes with his touted successor
Child sex abuse ruling highlights their opposing views
Mike Blanchfield
Ottawa Citizen

OTTAWA - The outgoing chief justice of the Supreme Court of Canada clashed yesterday with the judge touted as his successor in a ruling on a child sexual abuse case.

Chief Justice Antonio Lamer found himself diametrically opposed to Madame Justice Beverly McLachlin in a case involving the admissibility of evidence in a Saskatchewan sexual abuse case. Judge McLachlin is viewed by many as the front-runner to succeed Judge Lamer when he steps down next year after 20 years on the high court.

In a 5-3 ruling -- with Judge McLachlin writing for the majority -- the court ordered a new trial for a youth charged with sexually assaulting a five-year-old girl. At the 1997 trial, the girl, then almost seven, was stone silent on the witness stand after the judge found her fit to testify. With the failure of its star witness, the prosecution's case crumbled. The acquittal was upheld by the provincial appeal court.

The key issue in the case was whether the trial judge properly considered the prosecution's request to enter out-of-court statements made by the girl as hearsay evidence. In yesterday's ruling, the court ordered a new trial where it will again be up to the presiding judge to decide whether those statements should be admitted.

"We may thus conclude that where it is self-evident that a child's evidence will not be effectively available, the judge may find necessity and, subject to reliability, admit the child's out-of-court statements," Judge McLachlin wrote.

However in yesterday's ruling, Judge Lamer voiced some concerns about whether the young girl was unable to actually testify, thus necessitating the use of her out-of-court statements.

The trial judge, Judge Lamer concluded, was in the best position to rule on the girl's ability to testify because he "had the unique opportunity to observe the witness' demeanour and comportment."

The Crown prosecutor called no evidence to explain why the girl could not testify, and did not ask for an adjournment to determine if the witness could continue.

"Who knows?" Judge Lamer wrote in his dissenting judgment. "Maybe she did not, understanding the promise to tell the truth, want to repeat that which she had said earlier while not under such a promise."

Because the girl did not actually testify at trial, little is known about the substance of the allegations or her relationship to her alleged attacker.

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