Calgary defence lawyers support judge following Crown’s office criticism

April 18, 2024 Canuck

A group of defence lawyers is backing a Calgary judge whose comments about supports for child witnesses were characterized by the Alberta Crown’s office as biased.

Earlier this month, chief Crown prosecutor Peter Mackenzie sent an email to all prosecutors in southern Alberta regarding Justice Harry Van Harten. It required them to make recusal applications on cases before him involving the Luna Child and Youth Advocacy Centre after the judge made comments in court calling supports for child witnesses “shortcuts” in the legal system.

On Thursday, Calgary’s Criminal Defence Lawyers Association issued a statement critical of the Crown’s directive.

“It is unfortunate that this statement of position has had the effect of tarnishing a justice’s reputation when, as is the rule, a judge cannot defend himself in the court of public opinion,” wrote the association.

Defence lawyer Jim Lutz called Van Harten a “well-respected senior criminal jurist,” describing him as someone who is not afraid to convict but has a duty to question the fairness of the system.

“You have to remember, someone’s got to look out for an accused’s right to a fair trial,” said Lutz.

‘Gatekeeper function’

The Crown directive was issued after Van Harten made comments during a sexual assault and choking trial where the alleged victim — a teenage girl — was allowed to testify from the Luna Centre with the aid of a police service support dog.

The Luna Centre supports children who are the victims of sexual and physical abuse, including offering space for police interviews and testimony with child witnesses and complainants.

Van Harten called the use of the dog and remote testimony “shortcuts” to the system and suggested they favour the alleged victim and unfairly disadvantage accused persons.

In Canada, the Criminal Code allows for underage witnesses to use testimonial aids, including a support person or dog and/or testifying remotely “unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.”

“[Van Harten has] an important gatekeeper function and that’s what the Criminal Code requires him to do,” said Lutz. “He’s got a duty to ask those questions.”

‘Illogical’

Lutz also pointed out that after Van Harten voiced his concerns, he allowed the teen to testify from the Luna Centre with the support dog.

“So how does that support the Crown’s contention that he’s biased?” he said. “It’s illogical.”

The defence lawyers association also raised concerns that the supports “may end up being given to those complainants whose testimony results in a conviction, but they may equally be given to those who have falsely accused someone.”

“These supports may make it easier to falsely implicate an accused person by releasing a complainant from the necessity of confronting the accused person in court or from their demeanour being observed by a trial judge while they do.”

‘A conscious bias’

But according to Mackenzie’s email, the Crown’s office feels the judge’s comments “show a conscious bias on Justice Van Harten’s part in such cases” and should disqualify him from presiding over cases involving the Luna Centre.

Criminal defence lawyer Andrea Urquhart says she disagrees with that position.

“The problem with the response of the Crown office is that it’s seeking to silence what can be seen as very legitimate concerns about issues that should be reflected on,” said Urquhart.

“To suggest that, simply because [Van Harten] raised concerns about resources that are only available to a very specific participant in the justice system means that he cannot judge this fairly, flies in the face of the work that he’s done in the last decade on the bench.”

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