Regina v. M.M.M. [Nunavut Court of Justice – Ottawa Ontario, May 2017]

MMM is a very elderly man accused of raping an adolescent female back in the late 1960’s – yes . . . the allegations were over half a century old.  This is not a case where the complainant did not know the identity of the alleged assailant but rather a case where (for personal reasons) the matter was not reported to the police in any way, shape or form for half a century.

The trial was originally scheduled to be heard in Nunavut but Patrick Fagan was successful (for perhaps the first time in Canadian legal history) in having the case transferred out of the Great White North  to the Province of Ontario.  Specifically, Patrick Fagan successfully applied to have the trial heard by the Nunavut Court of Justice sitting as such but in Ottawa.

The trial was scheduled for an entire week and included the complainant, other civilian witnesses and RCMP investigators.  The first witness called for the prosecution was the complainant.  In spite of the fact that the complainant spoke excellent English (she provided separate lengthy detailed statements to the RCMP in English) the Court ruled that the Complainant could testify in her indigenous tongue/language.

Cross-examination of a Complainant in a sexual assault prosecution is an exceedingly delicate and difficult task in the most favorable of circumstances.  When that process is further complicated by having to cross-examine the witness through an interpreter potential advantage flowing from a contemporaneous Q&A is essentially lost.  Having said that, Patrick Fagan developed an approach to offset this communication barrier and gently but firmly cross-examined the Complainant for over 3 hours.  As it turned out, the Complainant would be the only witness called for the prosecution.

Bottom Line: At the conclusion of Patrick Fagan’s cross-examination of the Complainant, there was no reasonable likelihood of a conviction and the Crown killed this prosecution in its entirety by way of a complete withdrawal of all charges.