Crown under fire for asking students to leave courtroom
Common practice lets sensitive witnesses avoid testifying in front of strangers

Jake Rupert, Thursday, March 06, 2003
A Crown practice of asking members of the public to leave courtrooms to make it easier for complainants to testify in certain cases has come under fire from an advocate of open courts and defence lawyers.

The practice, which is endorsed by Ottawa's head Crown attorney Hilary McCormack, became apparent yesterday at the start of the trial of a teacher accused of sexually exploiting a 15-year-old female student.

Before Judge James Fontana arrived in the courtroom, assistant Crown attorney Ursula Hendel, who was sitting at counsel table, got up and approached about a dozen students in court for class assignments, and asked if they would leave the court.

To one group she said: "The case involves a sensitive witness that I would rather have not testify in front of a room full of strangers." Ms. Hendel also inquired about the nature of their assignment and suggested the students would be better off in another courtroom.

To a second group, she said there were going to be several legal issues addressed before witnesses were called and this wouldn't be interesting.

All of the students left the courtroom, except for one young woman who had been told by a reporter she didn't have to leave.

There were some legal issues to be sorted out before the trial started, but Ms. Hendel called her first witness less than 15 minutes after the students left.

Ms. Hendel did not tell any of the students they had to leave, but, in an interview later, she said she approached the students with the goal of getting them to leave and that she has done this before.

"I do it for the comfort of the complainant," she said. "I've found that most of the spectators appreciate this. They don't want to put a complainant in an uncomfortable situation. I think we (Crowns) recognize members of the public are allowed to be there, but it's in our prerogative to ask them to find another courtroom."

But others say what Ms. Hendel did was effectively empty a courtroom without a judge's order. One defence lawyer called the action "disturbing."

Defence lawyer Oliver Abergel said an officer of the court asking members of the public to leave a courtroom flies against the spirit of our open court system.

"I find the practice disturbing," he said. "The public and the defended have a right to an open, fair trial. The Crown doesn't get to decide who gets to observe a trial. I think it's usurping the role of the judge. It would be interesting to see what would happen to a defence lawyer who did the same thing."

Media lawyer Richard Dearden, who frequently acts for the Citizen, said: "The (judge) controls who is in the courtroom, and nobody should be asking anyone to leave or stay. If the Crown wants members of the public excluded, it should apply to the judge to get an exclusion order. An official of the government should not be asking people to leave courtrooms because Joe Public, who knows nothing of the court system, might think they have to leave," Mr. Dearden said.

"The open court principle is sacrosanct in our system. That's why the grounds for excluding people from courtrooms or banning publication on what goes on in courtrooms are so narrow."

Ms. Hendel's boss, Ms. McCormack, said she has done this before in cases and sees no problem with it. She said asking people to leave is an appropriate practice in some cases where complainants are particularly vulnerable.