Should a person accused of sexual abuse be permitted to sit in on the examination for discovery of the alleged victim? This issue was considered in G.S. v. K.C., 2020 ONSC 210.
C.H. alleged that he was sexually abused by a family member when he was a minor. This was denied by the family member who brought a claim for various torts, including defamation. A counter-claim was commenced by C.H. for the alleged sexual abuse.
C.H. did not want the alleged abuser to be in the same room for his discovery.
Justice Charney noted that there is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties in an action. However, the court has discretion to order otherwise.
A party must demonstrate more than general discomfort or anxiety about being examined with the opposing party present. Justice Charney said that the prospect of being examined for discovery will undoubtedly trigger some degree of anxiety for most people. However, such general anxiety does not rise to the level of justifying the exclusion of a party to the litigation.
In addition, Justice Charney noted that allegations of intimation or fear must be supported by the evidence on an objective basis.
Justice Charney stated that previous cases failed to account for technological innovations. People can be accommodated by technology.
In the criminal context, alleged sexual assault victims are frequently accommodated so they do not have to come face to face with their alleged assailant.
Justice Charney stated that, in appropriate cases, there is no reason why similar testimonial accommodations cannot be offered to a witness in a civil proceeding without compromising the opposing party’s right to be present during the examination for discovery.
Medical evidence filed by C.H. indicated that being in the same room as his alleged abuser would be significantly detrimental to his psychological state and functioning. Justice Charney accepted that testimonial accommodation was appropriate.
Justice Charney ordered C.H. to be examined in a separate room from the alleged abuser. The discovery will be available to the alleged abuser by closed-circuit television or other electronic means so that he can watch the discovery in real time.
The lawyer for the alleged abuser has the option of conducting the discovery in the same room as the alleged victim or remaining in the same room as his client and conducting the discovery by closed-circuit television.