The appointment of judge Michelle O’Bonsawin to the Supreme Court of Canada might require prosecutors to re-try a sexual assault case she presided over and drive the complainant to testify for a second time, an end result the Crown says can be “a miscarriage of justice.”
As a judge on the Ontario Superior Court of Justice, O’Bonsawin was presiding over the trial of an Ottawa man accused of two sexual assaults when she was appointed in August, turning into the primary Indigenous jurist named to the top court.
By then most of the proof within the case had been heard at trial, together with testimony from the complainant and the accused, Kevin Damiano. The alleged assaults, each towards the identical lady, date again to 2012 and 2013.
Damiano’s lawyer, Diane Magas, needs a brand new judge to hear the case, which might doubtless require starting the trial over once more.
In court paperwork, prosecutor Moiz Karimjee argues that the defence is successfully asking for a mistrial and placing a brand new judge in cost would unfairly expose the complainant to a second spherical of testimony and cross-examination.
Magas denies her request would require a mistrial, saying in an electronic mail to CTV News that “my shopper is just asking for the appliance of the Criminal Code part that offers with that in order that his trial may be continued by a brand new judge.”
The Criminal Code permits for substitution of a judge when the presiding justice “dies or is for any purpose unable to proceed,” but when a judgment has not but been made, the brand new judge “should begin the trial once more as if no proof” had been heard.
“It doesn’t even require an vital purpose, good purpose and even necessity. The commonplace may be very low,” Magas mentioned.
The Supreme Court of Canada didn’t reply to a request for remark from O’Bonsawin.
In an affidavit supporting the Crown’s place, the complainant, who can’t be named as a result of of a publication ban, says the authorized proceedings have “consumed her life.”
She says repeated delays within the trial have prompted her post-traumatic stress that has affected her professionally and personally. She says she had a miscarriage of a being pregnant in the course of the course of the authorized proceedings.
“I would really like to transfer on, shut this chapter, and heal, in addition to begin a household with out having to get devastating information,” she mentioned within the affidavit.
She testified over three days final 12 months.
Damiano was charged in 2019 and his trial started in November 2021 however was delayed in January when O’Bonsawin went on medical depart. The trial was set to resume final month, when the defence deliberate to current proof from a toxicologist.
The Crown estimates O’Bonsawin would have to sit for less than three extra days of trial and says this is able to not intrude along with her duties on the Supreme Court
The Crown says O’Bonsawin has the discretion to resolve whether or not to proceed and lists different circumstances during which judges promoted to increased courts continued to hear circumstances that they had already begun, together with present Supreme Court justice Malcolm Rowe.
Rowe agreed to proceed listening to a sexual assault case as a judge in Newfoundland and Labrador in 2001, when he was named to the province’s court of attraction, however he stepped apart from the sentencing part after a jury convicted the accused.
A listening to within the matter is scheduled for Thursday.