It has recently come to light that a sexual assault complainant in Edmonton was jailed for five nights because the prosecutor and judge believed that she would not otherwise attend court and provide useful testimony. While there are many troubling aspects to the case, I focus here on just one: whether there was any legal basis for her detention. I conclude that there was not. Indeed, in my view there is not even a tenable argument that her detention was lawful.
While I will recount the most relevant facts, for full context I point readers to the outstanding reporting of CBC Edmonton’s Janice Johnston (here, here, and here); Professor Alice Woolley’s trenchant legal ethical analysis; and Michael Spratt’s and Emilie Taman’s excellent podcast.
The complainant, pseudonymously known as Angela Cardinal, was sleeping in the common area of an apartment building when the accused, Lance Blanchard, grabbed her, dragged her to his apartment, and violently sexually assaulted her. He was charged with aggravated sexual assault and other offences.
After Mr. Blanchard chose to have a preliminary inquiry, a subpoena was issued for Ms. Cardinal to attend. However, no attempt was made to serve it on her and she was unaware of it until two days before the start of the hearing when she encountered two police officers. They put her up in a hotel for two nights. On the second (the eve of the hearing), she left the hotel and went to her mother’s home, apparently because she wished to have guests in violation of hotel policy. She returned to the hotel later that night where police were waiting for her. They took her back to her mother’s place and picked her up the next morning for court.
There is no doubt that on this day (a Friday) it proved difficult to obtain useful testimony from her. As characterized by the trial judge, she was “clearly distraught,” “panicking,” and “somewhat belligerent.” The nature of her testimony is captured in the following excerpt from Professor Woolley’s submission:
Her testimony on that morning begins at page 357 of the transcript, and concludes at page 383, when she asks for a break. During that testimony Ms. Cardinal expressed her reluctance to testify (e.g., Transcript p. 360, ln 10 “I just want to go home”), her anger at the accused (e.g., Transcript p. 358, ln. 13 “He deserves to fry in the chair”) and also demonstrated her fatigue and incoherence. Her issues became particularly acute when testifying to the assault (Transcript p. 368) and when, at that point, the trial judge mistakenly referred to her as “Ms. Blanchard” – i.e., the name of the accused (See Transcript p. 369, ln. 19). She also expressed anger when defence counsel objected to questions (see e.g. Transcript p. 372, ln. 28, p. 373, ln. 33 and 40). Ms. Cardinal answered a range of substantive questions related to where she was born (Transcript pp. 358-359), the events prior to Blanchard’s assault (Transcript pp. 360-364), her interactions with Blanchard prior to the assault (pp. 365-367), how she got into his building (Transcript p. 367), the assault (Transcript pp. 367-368, 373-378, 379-381, 382-383), and the nature of Blanchard’s apartment (Transcript p. 379).
After the break, Ms. Innes advised the Court that “[Ms. Cardinal] is curled up on one of the benches outside, literally unwilling to interact” and asked for court to be adjourned until 2 pm so that the Crown could consider whether “to introduce her statement made to the police by way of KGB” (Transcript p. 384).
When the Court returned at 2 pm, Ms. Innes requested that the judge issue an order pursuant to s. 545(1)(b) of the Criminal Code ….
As detailed by Professor Woolley, the prosecutor based her request on the assertion that Ms. Cardinal was a “flight risk and … has presented in a condition unsuitable for testifying,” later adding that she was “not answering the questions that are put to her.” The prosecutor also suggested that Ms. Cardinal may have been “coming down off methamphetamine…”.
These statements were pure assertions. No evidence was adduced to support them, and the court did not direct Ms. Cardinal back to the stand to continue her testimony. Nor did the prosecutor provide any legal argument or case law supporting her claim that section 545(1)(b) authorized the detention. The court nevertheless granted the request and remanded Ms. Cardinal into custody for the weekend.
The events that transpired after Ms. Cardinal was returned to court on Monday were captured in the trial judge’s reasons as follows:
…She was brought into Court wearing shackles and handcuffs. The handcuffs were removed. However, she was not called to testify until late in the afternoon. She apologized for her belligerence on the previous Friday and partially explained her behaviour as resulting from the judge having mistakenly called her Ms. Blanchard, the name of the Accused. The Preliminary Inquiry judge then apologized for having made that mistake. She made a point of asking whether she had to go back to Remand as she had “a placement” and that she would not leave that placement if ordered not to. She did not want to go back into Remand and complained about being in shackles, the bad food at the Remand Centre and that “someone pooped in all . . . showers”. She emphasized that she was the “fricking victim here”. She then rightly pointed out that they should have started her testimony early in the morning instead of late in the afternoon to minimize her time in custody.
At the end of the Complainant’s testimony on June 8, 2015, the Court again remanded her. It was clear however that the Court had been misinformed. Contrary to the information before the Court, the Complainant had returned to the hotel on the evening of June 4. She was then taken to her mother’s home by the police where she was found the next morning. She was never missing and had never failed to appear. She told the Court the true facts concerning her whereabouts and asked that she simply be taken to her mother’s home. When told of concerns that she would not come back to Court, she responded that she promised to do so. Nevertheless, the Court again remanded the Complainant into custody. She remained in shackles, emphasized again that she was the victim and not surprisingly, said the following:
I’m the victim and look at me. I’m in shackles. This is fantastic. This is a great . . . system
When told by the Court that it was “making really good progress” she understandable responded: “Not great progress. Look at me, I’m in shackles”. The Complainant was then told that they would begin again the next day at 2:00 p.m. because the Accused “needs some emergency dental work done . . .”. Not surprisingly, the Complainant questioned why she must remain in custody and not testify until the afternoon while the Accused went for a dental appointment. Her concern proved justified given that at the conclusion of her testimony on the afternoon of June 9, 2015, she was once again remanded into custody. Again, she remained in shackles and was handcuffed on her way out.
Finally acceding to the Complainant’s request, the Court allowed her to continue her testimony on the morning of June 10, 2015 at 9:00 a.m. She testified the entire day, again in shackles, following which she was released from custody.
Application of s 545(1)(b)
Section 545(1)(b) states as follows:
545 (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence …
(b) having been sworn, refuses to answer the questions that are put to him,
without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may…commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.
Let’s first consider whether, on a plain reading, this provision could authorize the detention of a witness who is a flight risk. It states only that a person who is “present at a preliminary inquiry” may be detained if he “refuses to answer the questions that are put to him.” Nowhere does it purport to authorize detention when there are reasonable grounds to believe that the witness will not show up for court.
In this case, it is questionable whether the Crown had such grounds. As Justice Macklin relates, Ms. Cardinal did attend the Friday hearing and later promised to come to court and testify as required if released from remand.
But even if she did constitute a genuine flight risk, it wouldn’t matter. The provision does not authorize detention to prevent absconding. Of course, witnesses may be jailed for contempt if they refuse to comply with a properly-served subpoena or other court order, but they cannot be detained prospectively because of a concern that they may not come to court. As the trial judge noted (paraphrasing and implicitly approving of defence counsel’s submission), under a contrary interpretation “the Crown could obtain an Order for the detention of homeless people at any time simply because there is a concern that the Crown would not be able to locate them if the witness did not voluntarily attend.” It is accordingly clear that, at a minimum, Ms. Cardinal’s continued detention after Monday (when she was undoubtedly a cooperative witness) was unlawful.
The next question is whether her initial, weekend detention could have been justified on the basis that she “refused to answer” questions on Friday. Again, a plain reading suggests that the answer must be “no.” There is no evidence of any “refusal” to answer questions while she was on the stand. Nor was there any attempt to question her on the stand after the prosecutor asserted that she had become uncommunicative during the break.
While the prosecutor attested that a support person had unsuccessfully tried to induce greater cooperation, there was no evidence that Ms. Cardinal did refuse (or inevitably would have refused) to testify. Nothing in the record suggests that, given sufficient time and support, she would not have been willing to testify in some manner. Instead, it is evident that the prosecutor sought Ms. Cardinal’s detention to guarantee her presence at Monday’s hearing and maximize the chances that she would provide useful testimony. But the language of section 545(1)(b) in no way suggests that a witness may be remanded for these purposes.
Nothing in the jurisprudence supports a contrary interpretation. Section 545(1)(b) has been in force, with only slight modification, since the Criminal Code was enacted in 1892. Yet I was unable to find even a single case where it was used to jail a witness in similar circumstances. In every instance where detention was ordered, the witness clearly and expressly told the court that he or she would not testify or answer a question, typically after the judge gave a warning regarding the consequences of refusal. None of this happened in Ms. Cardinal’s case.
The reasons for this absence of supporting authority should have been obvious. As the Quebec Court of Appeal explained in R v Lacroix, section 545(1)(b) creates a de facto offence akin to contempt of court or obstruction of justice. Consequently, as with these offences, witnesses cannot be remanded under section 545(1)(b) unless the Crown proves beyond a reasonable doubt that they willfully refused to accede to the court’s authority. Yet Ms. Cardinal was found to have breached the provision without indicating to the court, in any manner, that she would “refuse” to answer questions when she became capable of doing so. It defies basic norms of our legal order (not to mention sections 7 and 11(d) of the Charter) to deprive a witness of her liberty merely because she was having difficulty testifying at a particular point in time.
In summary, it is simply not plausible to read section 545(1)(b) as permitting Ms. Cardinal’s detention. Such an interpretation is belied by the provision’s plain language, case law, and elementary tenets of criminal and constitutional law. While there must obviously be sanctions (including potential imprisonment) for refusing to testify, they should only be imposed on compellable witnesses who willfully defy judicial authority, and only in accordance with the ordinary rules of criminal procedure and evidence.
As a matter of policy, it is questionable whether sexual assault complainants should ever be jailed for failing to testify. The message that this would send to victims (“if you report a sexual assault to the authorities and are uncooperative thereafter, you could end up in jail”) is troubling (to put it mildly). But at the very least it should happen only when authorized by law. In this case, that could only have occurred had the Crown proved, subject to all the usual procedural and evidentiary safeguards, that Ms. Cardinal “refused” to testify. That did not happen on any reasonable interpretation of the record.
The prosecutor and judge presumably believed that jailing Ms. Cardinal was in the public interest -- that it would maximize the chances that she would give testimony that could help prove the case against an alleged sexual predator. But in doing so they took away her liberty, and they did so in a way that violated the most basic norms of due process and the rule of law.
To Ms. Cardinal, the value of this liberty was not abstract, ephemeral, or of little practical concern. As detailed in the record, she repeatedly pleaded for her freedom and explained, in cogent, colourful, and concrete terms, why she did not want to go to jail. As she put it herself, she “was the fricking victim here.” Unfortunately, this rather obvious fact was elided by an overzealous determination to obtain a conviction.
One lesson to be learned from this case, I hope, is that the risk of this kind of injustice can be mitigated not only by better adherence to ethical rules and more discerning exercises of professional discretion, but also by more faithful conformity to the rule of law. Even ivory tower lawyers know that “the law in action” is messier than “the law on the books”; but the latter is still important. Bad things happen when it is not taken seriously.
 Note that preliminary inquiries are conducted by provincial court judges. If the accused is committed to stand trial, the trial is conducted by a superior court judge. It was the trial judge, Justice Eric Macklin, who first brought attention to Ms. Cardinal’s treatment, though it did not attract widespread notice until the CBC’s reporting of it.
 See R v Blanchard, 2016 ABQB 652 at para 27 (“Crown notes that when the Complainant first appeared on the witness stand after having been remanded, she presented in an alert state, apparently ready to listen to and answer questions.”).
 Further, even if it were possible to construe Ms. Cardinal's behavior on the Friday as a “refusal” to answer questions, no consideration was given to whether she had a “reasonable excuse” for doing so, such as fear, anxiety, or drug addiction. As mentioned, witnesses may only be remanded under s. 545 if they refuse to answer questions “without offering a reasonable excuse.”
 Ironically, the only reported decision that I could find on point was the trial judge’s ruling on the admissibility of Ms. Cardinal’s preliminary inquiry testimony at trial under s. 715(1) of the Code. There, the defence argued that the testimony should be excluded because it may have been tainted by an implicit threat from the Crown that Ms. Cardinal would remain incarcerated until she gave favourable evidence. In rejecting that argument, Justice Macklin stated that while “[t]his Court does question the jurisdiction of the Provincial Court to grant an Order under s. 545(1)(b) in the circumstances described”, the order did not prejudice the accused: R v Blanchard, 2016 ABQB 652 at paras 63-64 [emphasis added].
 (1984), 34 CCC (3d) 163 (Que CA), rev’d on other grounds,  1 SCR 244.
 See also Morris Manning and Peter Sankoff, Manning, Mewett & Sankoff Criminal Law, 5th ed (2015) at 804 (describing s. 545 as one of several “statutory examples of contempt”).