• Abstract and Figures
• Public Full-text

VOLUME IV IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK TRIAL DIVISION ( JUDICIAL DISTRICT OF FREDERICTON BETWEEN : HER MAJESTY THE QUEEN - and - ALLAN JOSEPH LEGERE TRIAL held before Honourable Mr. Justice David M. Dickson and a Petit Jury at Burton, New Brunswick, commenc~ng on .the 26th day of August, A. D. 1991, at 10:00 in the forenoon. APPEARANCES: Graham J. Sleeth, Esq., Anthony Allman, Esq., and for the Crown. John J. Walsh, Esq., Weldon J. Furlotte, Esq., for the Accused. .... Proceedings of September 5 & 6, 1991 Dolores Brewer, Court Reporter. Copyright 1992, Departmentof Justice, Province of New Brunswick. 766 COURT RECONVENES - 9:30 A.M., SEPTEMBER 5, 1991. (Accused present in prisoner's dock.) 5 THE COURT: Now, normally we would bring the jury in but I understand counsel may have some representations they want to make Mr. Walsh. MR. WALSH: Yes, My Lord, thank you. My Lord it is the 10 Crown's motion at this time that we would ask for an order pursuant to Section 486(1) of the Criminal Code, and for the purpose of the record I will read it My Lord. It says: "Any proceeding made against an accused 15 shall be held in open court but where the presiding judge is of the opinion that it is in the interests of public morals, the maintenance of order, or the proper administration of justice 20 to exclude all or any members of the public from the courtroom for all or part of the proceedings he may so order." 25 30 45 3025 (4 851 291DB - 767 The Crown asks for an order excluding the public from the courtroom during the direct and cross-examination of the witness to be called this morning, Nina Flam. 5 The decision was made, My Lord, last evening. It was made under circumstances in which Miss Flam was made aware of this particular section and not made aware of this section until last evening. She was asked as to what her feelings were with respect 10 to this question of the public. Her answer was to the effect she does not know, in all honesty, how she is going to react in the courtroom. That is understandable. She feels that not having the public here will help her to be less inhibitive in 15 terms of her testimony. It is her belief she doesn't know how she's going to react but it's her belief that not having the public present will help her to relate all the details that is necessary to relate. Miss Flam is a woman in her sixties. She is a 20 woman of fine standing in the community. She's a proud woman. It takes an enormous amount of courage for her to even corne here and it's the crown's opinion that for the proper administration of justice! 25 we want to ensure that this woman is able to testify and that anything, particularly under these circum- stances, anything that we can do to aid in that testimony is important in the proper administration of justice. 30 The key element or one of the reasons, My Lord, is that some of the occurrences that she will be re- quired to relate to the Court as to what occurred that night are of a very horrible nature. They have " 3025 i4 85' 292DB- 768 sexual aspects to it. They are of such a nature that it adds to the difficulty in a woman to relate this evidence in any event. To corne here is hard enough; to testify is hard enough; but to testify 5 about certain acts and things that were done and said to her makes it that much more difficult, and the witness herself has said that she believes that not having the public present will aid in relating her testimony. She cannot guarantee it. She doesn't 10 know, but she believes that the public not being present will be of an assistance in the sense that she would be able to relate the testimony, and the crown's position is that for the due administration of justice, and this is a very rare motion, but for 15 the due administration of justice it is necessary that this woman be allowed to testify without the public being present My Lord. THE COURT: Did you have -- You were -- MR. WALSH: There are some points, My Lord. I would refer 20 you particularly to the annotation in Martin's Annual Criminal Code. A number of the decisions there, perhaps to - I know Your Lordship is familiar but for the record perhaps just to touch on them, there is one decision of the Alberta Supreme Court Appeal 25 Division, R. V. Warawuk, Alberta supreme Court A eall Division, 1978, 42 Canadian Criminal Cases (2d) at 121, and the annotation states: "The mere fact that the charges are of sexual offences is not sufficient to 30 justify an order excluding the public. Exclusion of the public in the interest of public morals relates not to the category of the offence charged but to "5 3025 ,4 851 769 293DB - the evidence proposed to be tendered of acts or circumstances which might reasonably be expected to offend, or to have an adverse or corrupting effect on, public morals by publicity of obscenities, perversions or the like. Alternatively, a witness might need the reassurance of exclusion of 5 the public in testifying to certain matters which would justify the order of exclusion on the grounds of the proper administration of justice. The discretion to exclude the public must be exercised cautiously and only as cir- cumstances demand." And there is the decision of the Ontario Court 10 of Appeal in Quesnel (1979) 51 Canadian Criminal Cases (2d) at 270. "The fact that witnesses having to testify as to sexual behaviour may be embarrassed is not alone sufficient to warrant exclusion of the public." 15 That is not a ground. The ground is that we believe it would tend to aid the witness. I refer you to the LeFebvre decision of the Quebec Court of Appeal (1984) 17 Canadian Criminal Cases (3d) at 277. 20 "An order excluding the public may properly be made where the complainant in a sexual offence would otherwise be too nervous to give evidence. In such circumstances the order is necessary for the proper administra- tion of justice." What I am suggesting here, My Lord, is that 25 not so much to give the evidence as to give all the evidence. That is an important factor. THE COURT: Are there relevant sections in the Charter of Rights and Liberties? MR. WALSH: Before that particular reference, My Lord, I 30 would refer you to Tremeear's Criminal Code, 1991, by .Watt & Fuerst, the annotated provision, and under section 486 it says that: " 30';" 85, 294DB - 770 "Such discretion may only be exercised where the presiding judge or justice is satisfied that the exclusion is necessary to obtain a full and candid account of the acts complained." And I think that summarizes the crown's view here, 5 in that we want a full and candid account and this would tend to help it. My learned colleague, Mr. Sleeth, will address any aspects associated with how this order would impact on perhaps others. 10 THE COURT: Others meaning third parties? MR. WALSH: That's correct, My Lord. THE COURT: Well perhaps before we corneto Mr. Sleeth we could - might have an indication of what is the feeling of the defence in this matter. Mr. Furlotte, 15 do you take a position at all? MR. FURLOTTE: My Lord we would object to the motion for the exclusion of the public as it would violate Mr. Legere's right to what I would believe to be not necessarily you can say a fair public trial, but 20 at least it would exclude - take away his right to a public trial. I can't help but think back at the beginning of this case and I received a letter from Mr. Allman 25 that he expected from me notice in writing upon any motions that were to be made before the court and to be given, not necessarily to be held to the rules of court as to the time-wise for motions to be made and the order of motions to be made, but at least to be 30 notified in writing as to what the motion was, the contents of the motions and to be given reasonable amount of time to answer those motions. He felt .",302& ,485, 295DB - 771 that that was only fair and that we should be following the law in relation to which motions are presented before the courts under the Rules of Court. I received notice of this motion 5 after 9 this 5 morning. The Crown has had ample time to consider this motion as to whether or not it would be necessary. They just advised the witness, Nina Flam, from what I understand from Mr. Walsh to say, they just advised her yesterday of the section of 10 the Code where they could apply to the Court for an exclusion of the public. THE COURT: Well how has that prejudiced you though? I mean suppose they told you just now and suppose this was the first you heard about it in court. How are 15 you prejudiced? Do you mean you haven't had a chance to look up the law on it or -- MR. FURLOTTE: I haven't had any chance to look up the law; I haven't had any chance to form an argument, but an argument I can think right offhand is Mr.

Load more

  239

Copy Link