Justice Michelle O’Bonsawin’s appointment to the Supreme Court of Canada could force prosecutors to retry a sexual assault case she presided over and force the complainant to testify a second time, an outcome the Crown says it would be “a miscarriage of justice”.
As a judge of the Ontario Superior Court of Justice, O’Bonsawin was presiding over the trial of an Ottawa man accused of two counts of sexual assault when she was appointed in August, becoming the first Indigenous jurist appointed to the court superior
By then, most of the evidence in the case had been heard at trial, including testimony from the complainant and the accused, Kevin Damiano. The alleged assaults, both against the same woman, date back to 2012 and 2013.
Damiano’s attorney, Diane Magas, wants a new judge to hear the case, which would likely require the trial to start over.
In court documents, prosecutor Moiz Karimjee argues that the defense is effectively seeking a mistrial and putting a new judge in office would unfairly expose the complainant to a second round of testimony and cross-examination.
Magas denies that his request calls for a mistrial, saying in an email to CTV News that “my client is simply asking for the section of the Penal Code that deals with this to apply because his trial can continue with a new judge”.
The Criminal Code allows for the replacement of a judge when the presiding judge “dies or for any reason is unable to continue,” but if a sentence has not yet been handed down, the new judge “shall restart the trial as if there was no evidence” had been heard.
“It doesn’t even require an important reason, a good reason or even a necessity. The standard is very low,” Magas said.
The Supreme Court of Canada did not respond to a request for comment from O’Bonsawin.
In an affidavit supporting the Crown’s position, the complainant, who cannot be named due to a publication ban, says the court proceedings have “consumed her life”.
He says the repeated delays in the trial have caused him post-traumatic stress, which has affected him professionally and personally. She says she had a miscarriage of a pregnancy during the court process.
“I would like to move on, close this chapter and heal, as well as raise a family without having to receive devastating news,” she said in the affidavit.
He testified for three days last year.
Damiano was charged in 2019 and his trial began in November 2021, but was delayed in January when O’Bonsawin went on medical leave. The trial resumed last month, when the defense planned to present evidence from a toxicologist.
The Crown estimates O’Bonsawin should sit just three more days of trial and says it would not interfere with his duties at the Supreme Court.
The Crown says O’Bonsawin has the discretion to decide whether to continue and lists other cases where judges promoted to higher courts continued to hear cases that had already started, including current Supreme Court Justice Malcolm Rowe.
Rowe agreed to continue hearing a sexual assault case as a judge in Newfoundland and Labrador in 2001 when he was appointed to the province’s Court of Appeal, but recused himself from the sentencing phase after a jury convicts the accused.
A hearing on the matter is scheduled for Thursday.