Toronto Star

October 16, 1999

New trial in alleged sexual assault on girl, 5

Child `paralyzed' on witness stand

By Edison Stewart
Toronto Star Ottawa Bureau

OTTAWA - The Supreme Court of Canada has ordered a new trial for a man acquitted of sexual assault after the alleged 5-year-old victim froze on the witness stand.

The child, identified as L.F., was clearly ``paralyzed by the court proceedings'' and the Saskatchewan trial judge should have taken that into account, the high court ruled in a 5-3 decision.

Instead, ``W.J.F.'' was acquitted when the trial judge refused to allow the crown to use as evidence her extensive videotaped statement to police.

The judge ruled that the crown had offered no evidence as to why the girl was unable to testify - and why, therefore, so-called hearsay evidence should be admitted. That decision was upheld by the Saskatchewan Court of Appeal.

But Madam Justice Beverley McLachlin, widely expected to be Canada's next chief justice, wrote yesterday that there was ample evidence that the child ``was emotionally traumatized to the point of being unable to testify.''

The girl answered preliminary questions about age, family and school with single words or simple phrases, she noted. And the child gave no response - or at least none the court's recording system could capture - to more than 100 questions.

``It was very clear that the child was effectively `frozen' and could not testify,'' McLachlin said.

Writing for the dissent, Chief Justice Antonio Lamer said it is unfair to require the trial judge to ``make assumptions about why a witness has stopped testifying.

``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.''

There must therefore be evidence as to why the witness cannot testify before any decision to allow the crown to introduce hearsay evidence, such as the videotape, Lamer said.

McLachlin agreed that a witness cannot routinely be excused from testifying ``because the witness is not in the mood or is generally fearful of the process.''

But the courts have to be especially sensitive to children, particularly in sexual assault cases, she wrote.

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