Crown wants judge removed from child abuse cases involving youth advocacy centre

A Calgary judge voiced concern during a trial that supports offered to child witnesses and complainants favour the alleged victim. The case was tied to a sexual assault trial where a teenager was allowed to testify from the Luna Child and Youth Advocacy Centre with support from Webber, left, a Calgary Police Service victim assistance unit dog. (Calgary Police Service, Luna Centre - image credit)

A Calgary judge should be disqualified from presiding over trials involving children who are the alleged victims of abuse in cases where the Luna Child and Youth Advocacy Centre has been involved, according to an all-staff email directive issued by the chief Crown prosecutor.

The directive was sent by Peter Mackenzie earlier this month following the trial of a man accused of sexually assaulting and choking a teenage girl.

During the March 25 trial, the alleged victim was allowed to testify remotely from the Luna Centre with support from Webber, a Calgary Police Service victim assistance unit dog.

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

Judge cites 'shortcuts'

In some cases, child witnesses also testify via closed-circuit television from the Luna Centre.

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."

Court records from that trial show the application for the alleged victim's supports was made with the consent of the defence lawyer.

But Justice Harry Van Harten called the remote testimony and presence of Webber "shortcuts" to the system and made comments that they favour the alleged victim.

According to Mackenzie's email, the judge questioned why the teen was not testifying from the courthouse in the "conventional way."

'Victims being favoured'

Oftentimes, when there is a witness or complainant who is sensitive to being in the presence of the accused, their testimony can take place from a different room in the courthouse, streamed into the trial courtroom.

Another point raised in the directive takes issue with the judge's comparison between a child witness and an accused.

"Justice Van Harten said he was aware of the Luna Centre … that police investigations are conducted there and that this results in victims being favoured," wrote Mackenzie.

"He compared this to the way accused persons are treated at the arrest processing and that they are not afforded the same opportunities and that these additional supports and processes favour the victim."

Judge 'should recuse himself'

According to Mackenzie, the Crown's office feels the judge's comments about child abuse investigations and the Luna Centre "show a conscious bias on Justice Van Harten's part in such cases."

"It is the position of this office that the statements disqualify Justice Van Harten from hearing cases involving young persons investigated through the Luna centre."

Mackenzie said the Alberta Crown Prosecution Service feels that Van Harten "should recuse himself from files involving the Luna Centre."

But in the event a case does end up before the provincial court judge, prosecutors should "apply to have Justice Van Harten recuse himself from the file," wrote Mackenzie.

Luna Centre responds

In a written statement provided to CBC News, Karen Orser, CEO of the Luna Centre, said the agency will continue to support children through the "disclosure, investigation and judicial process."

"Providing the option of testifying from Luna's remote testimony rooms and support from highly trained facility dogs are testimonial aids that victims and witnesses have the right to request under the Canadian Victims Bill of Rights," said Orser.

"These supports are also proven to minimize further traumatization for children and help ensure effective testimonies for the courts."

CBC News requested comment from Van Harten but did not receive a response.

Judges are not permitted to speak publicly about cases they preside over.

Mackenzie, the prosecution service and a spokesperson for the Alberta Court of Justice all declined to comment.