Law Times

www.lawtimesnews.com Law Times / January 14, 2008 Page 5 Judge steps down amid worries over HIV-positive witness Case reveals judge's court his domain BARRIE – The power a judge is entitled to hold in his court- room was hotly contested in a re- cent case where a judge and the Crown locked horns over wheth- er an HIV-positive witness would be masked while he testified. The case that unfolded in a Bar- rie court late last year began as a run-of-the-mill sex assault trial. Lee Wilde was accused of sexu- ally assaulting a man while they were inmates at Central North Correctional Center in Penetan- guishene. But the trial came to a grind- ing halt when the judge be- came alarmed after hearing of the complainant's HIV status. During the trial, the complainant, whose name is banned from publi- cation, testified he is HIV-positive and has hepatitis C. He admitted he did not reveal his HIV status to Wilde, who he alleges sexually assaulted him three times in the prison cell. On hearing of his health issues, which is a key issue for the de- fence, Justice Jon-Jo Douglas shut the trial down briefly and told the Crown the complainant must be masked and/or testify electroni- cally from another courtroom. Following the break, his court staff emerged wearing blue rubber gloves and put pa- per exhibits the witness had touched in sealed plastic bags. Crown attorney Karen McCleave refused to allow her key witness, who is no longer an inmate, to be treated with such disdain and applied for a mistrial. The judge refused and ordered the trial to proceed with the witness masked. "Either you mask your witness, and/or move us to another court- room or we do not proceed," said Douglas, while the witness was not present. The Crown then provided an affidavit from Dr. Giulio DiDio- dato, an expert in the field of in- fectious disease, who stated that neither HIV nor hepatitis C pose a risk of infection unless there is direct exposure to the infected blood, vaginal fluid, or semen. Douglas flatly rejected the evi- dence. The Crown refused to ask her witness to wear a mask and applied for several more mistrials. Each time, the judge refused. He said: "You are not getting a chance to make further submissions on the basis of my reasonable concerns to protect the safety and integrity of this courtroom in the absence of the attorney general of the chief justice having developed a proto- col which I find acceptable." (Em- phasis added). The judge then offered oth- er options to wearing a mask, such as allowing the witness to testify electronically from another courtroom, use of a screen, or to testify from a table situated 30 feet away from the judge. The Crown applied to a higher court to have the judge removed from the trial, in an application for an order of prohibition, because of concerns of bias. The Crown then argued before Superior Court Justice Margaret Eberhard that Douglas raised a "reasonable apprehension of bias" against the witness by not treating the witness (complainant) equally. The Crown noted the witness is now out of jail and free in the community and should not be dis- tinguished from any other persons in a public court. "It is respectfully submitted that people living with HIV of- ten suffer stigmatization and dis- crimination based on that health status," said the Crown. "Actual or perceived bias against the witness based on his or her HIV-positive status would negatively affect the trier's ability to fairly assess the wit- ness's evidence." In her written decision, released Dec. 11, 2007, Eberhard said the judge was within his rights, but hinted that he used poor judgment. "Giving direction to address safety concerns was within Justice Douglas's jurisdiction," said Eber- hard. "Even accepting that the accommodation he suggested was unnecessary, it was within his ju- risdiction, so, even if his decision could be said to be 'wrong,' it was the trial judge's decision to make and not reviewable by way of pro- hibition." However, she noted concern that the possible outcome in the wake of all the conflict would end up being a no-win situation. "If the trial judge accepts the tes- timony of the complainant, it will be said that he was overcompen- sating for the suggested bias, and if he rejects it, there will be those who assert that bias is confirmed," she said. "As a practical matter, for this case, a new start may be more expedient . . . It may be wise not to continue." Eberhard also expressed con- cern that the judge "gave little rea- son for his rejection of the expert evidence" given by DiDiodato. In the end, Eberhard admitted it is a toss up between the rights of the witness and the rights of the judge and chose between the lesser of two evils. She dismissed the ap- plication. "Ultimately I have decided that to prohibit the trial judge here would, in effect, be an appeal of his ruling denying a mistrial. In doing so, I recognize that I have placed a higher value on the imperative that trials proceed without interference if the decisions made are within the jurisdiction of the trial judge, than on the observance of the wit- ness's right to be treated equally," she said. "The prior imperative, if lost, would have devastating effect on all proceedings, whereas the later type of concern can be addressed by correction on appeal, by judi- cial social contest training such as we now pursue, and, if necessary, by complaint to the appropriate judicial council." The Crown then considered appealing her decision, but one week later Douglas gracefully and voluntarily removed himself in the interests of the integrity of the trial. But he maintained his concern, stating, "Have we not learned from the SARS fiasco?" The trial will begin again with a new judge, but Wilde's lawyer, Angela McLeod, says she isn't happy. "My client is innocent and he is being held in custody all this time, through no fault of his own," she says. "Meanwhile the complainant is out walking free in the community." McLeod has argued that Wilde is the real victim and that the com- plainant only cried sex assault as a pre-emptive strike to avoid being charged with the more serious of- fence of not disclosing his HIV status. A new trial is set for Valentine's Day, Feb. 14. NEWS Visit our Web site and Save 20% www.canadalawbook.ca Administrative Tribunals: A Legal Handbook Lisa S. Braverman Organizing Events: Avoiding Risk and Promoting Safety Halldor K. Bjarnason and Lynda J. 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