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Calgary prosecutors have been told to ask a local judge to remove himself from some child sexual abuse cases after comments he made about remote video testimony from a child advocacy centre.
In an email sent to staff lawyers, Chief Crown prosecutor Peter Mackenzie raised concerns about comments Justice Harry Van Harten made last month in connection with evidence from a teen witness from the Luna Youth and Advocacy Centre.
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“We have been advised that in the courtroom, during a recess, Justice Van Harten made a number of comments about the Luna Centre and the use of testimonial aids for witnesses,” Mackenzie said in the directive to prosecutors.
“As a result of these comments it is the position of the ACPS (Alberta Crown Prosecutor Service Calgary and regional offices) … Justice Van Harten should recuse himself from files involving the Luna Centre.”
The case involved allegations a High River man sexually assaulted and assaulted by choking a 15-year-old girl.
The alleged victim appeared in Calgary Court of Justice before Van Harten on March 25, according to court records, via video link from the off-site Luna Centre, with a support person and dog after the Crown and defence agreed to proceeding that way.
The Criminal Code allows for testimony remotely and supports for alleged victims “unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.”
‘A conscious bias’
In his email, Mackenzie suggested comments attributed to the Calgary judge may create an apprehension of bias.
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Among those comments, the Chief prosecutor said, was Van Harten indicating that remote testimony was “shortcutting” the system and asked the prosecutor on the case “why we are not going the ‘conventional way’ and having all the individuals in front of him in the courtroom.”
“Justice Van Harten said that he was aware of the work of the Luna Centre, but given that defence counsel was not taking issue with the use of remote testimony, he wanted to make his opinion known,” Mackenzie wrote.
“Justice Van Harten said he was aware of the work of the Luna Centre and the way they work, that police investigations are conducted there and that this resulted in victims being favoured. He compared this to the way accused persons are treated at arrest processing and that they are not afforded the same opportunities and that these additional victim supports and processes favour the victim.”
Mackenzie added the judge said the presence of support dogs or support persons were also “shortcuts” to the system which favoured victims.
He said the tenor of Van Harten’s comments was that “testimonial aids made available to children and other witnesses in the Criminal Code fundamentally advantage complainants and witnesses and unfairly disadvantage accused persons.
“It is the position of the Crown Prosecutors’ Office that these comments about child abuse investigations and the Luna Youth and Advocacy Centre show a conscious bias on Justice Van Harten’s part in such cases.”
When reached for comment, Mackenzie declined to speak further about the directive.
A spokesman for the court said no comment would be made at this time. It’s normal practice for judges not to discuss issues publicly.
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