Wednesday, May 29, 2013

Judge must allow parties an opportunity to make submissions

R. v. C.T., 2013 ONCA 350 holds:

[17]       First, the trial judge erred by making the order without indicating he was considering making it and giving the Crown an opportunity to address the issue. There was no application by the defence to exclude the testimony.  In fact, after the child had been excused as a witness, Crown counsel had indicated that if the defence intended to argue that there had been no opportunity to meaningfully cross-examine he had submissions to make in closing argument. However, at no time did defence counsel suggest that his client's section 7 and 11(d) Charter rights had been violated. The trial judge should not have made the order without hearing from the parties. The duty of a trial judge is to ensure the trial is fair to all parties.  

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