Lawyers come to defence of judge asked to recuse himself
Calgary's defence bar has come out fighting for a city judge whose comments on a sexual assault case have raised the ire of the Crown prosecutors' office.
The Calgary Criminal Defence Lawyers Association (CDLA) and two senior counsel took issue Thursday with a leaked Crown email instructing prosecutors to ask Justice Harry Van Harten to recuse himself in cases involving the Luna Youth and Advocacy Centre. In the email from Chief Crown lawyer Peter Mackenzie, prosecutors were directed to ask Van Harten to remove himself from Luna Centre cases after he raised concerns about hearing testimony remotely from the centre by a sexual assault complainant.
“Questioning why a witness cannot testify from the courtroom in the conventional way, as the judge is reported to have done, is part of the judge's obligation when such an application is brought,” the CDLA said in a news release. “It is not bias against any particular support centre — it is part of the judge's legal duty when deciding if a departure from the standard procedure in a trial should be allowed.”
Veteran criminal lawyers Jim Lutz and Andrea Urquhart echoed those comments. “His role is to ensure the fairness of the process,” Urquhart said.
“Justice Van Harten in this jurisdiction is so well known as a tremendously experienced jurist in the area of criminal law,” she said.
Added Lutz: “Judges are supposed to make sure that there's trial fairness.”
Lutz noted there's no support systems for accused persons when they're in court such as allowing them to have a comfort dog when giving testimony, or to give evidence remotely.
“There's no support group, you'll notice, or support provisions for an accused,” he said. “You have to be concerned that a witness's perception of what happened can be effected by the individuals that they speak to,” Lutz said. “That's one of the concerns that Van Harten has to guard against.”
In his email to Calgary and area prosecutors, Mackenzie suggested comments attributed to Van Harten may create an apprehension of bias in cases where child sexual assault complainants are dealt with through the Luna Centre.