A deputy judge has declared a mistrial and recused himself after a procedural error during a sexual assault trial that began this week in Whitehorse.

The matter before Deputy Judge Gerald Morin originated from an incident dating back to Feb. 10. The RCMP were alerted to the possible sexual assault of a minor at the Stratford Hotel on Fourth Avenue.

Police took a statement from the complainant and traced the assault back to the specific hotel room. The man renting the room was arrested that night.

He was charged with sexual assault on a person under the age 16, sexual interference and possession and production of child pornography. He has been in custody since his arrest.

The names of the complainant and the man cannot be published. He was in court with a Spanish-speaking interpreter.

The trial began Monday but the procedural issue was only discovered Tuesday morning. The issue stemmed from the complainant’s chief examination on Monday.

She testified over CCTV from a witness room, but she did not swear an oath or affirmation prior to giving evidence.

Both Crown prosecutor Leo Lane and Morin proceeded as if the complainant was 14 years old.

Under court rules, a witness 14 years old or younger does not have to swear an oath or affirmation.

The complainant in this case, however, is older than 14 – and had to be sworn in.

Lane finished his chief examination of the complainant on Monday. Cross-examination was set for Tuesday morning by the man’s lawyer, Fiona Pegg.

Lane said the complainant cannot give further testimony without swearing an oath.

Anything said during her testimony on Monday would be inadmissible. Lane felt the safest way to proceed was to re-conduct his chief examination and disregard what was said on Monday.

Pegg disagreed.

She argued that since the complainant was providing some of the key evidence in the case, a mistrial should be declared.

Pegg felt re-conducting the chief examination would violate the fairness of the trial, saying the judge would get to hear the same testimony twice.

She argued that the complainant could alter her testimony and the defence would not be able to say anything about the inconsistency.

Even if the testimony remained the same, the complainant’s demeanor and tone of voice could be different.

Pegg added this would also be unfair, since she did not get a chance to cross-examine Monday’s testimony.

Pegg called the circumstances unfortunate, but said she could not see a method to move forward without declaring a mistrial.

“I can’t see any way around it,” Pegg said.

Lane argued that halting the trial and ordering a new one to be scheduled down the road would not be fair to the complainant.

He felt that continuing the trial would not prejudice the accused.

He added there is no reason to believe the complainant would say anything different during the new chief examination. He felt she would just give the same information a second time.

Lane said judges are frequently asked to disregard information they have heard, and this could alleviate any concerns about hearing information multiple times.

Morin said fairness is a two-way street. The courts must be fair to both the accused as well as any witnesses.

He acknowledged that the man needs to have a fair trial and be presumed innocent until proven guilty.

At the same time, the judge said, the young complainant has been through a difficult situation and must be respected.

Morin said he would consider both options over Tuesday’s lunch break.

Once court reconvened in the afternoon, Morin said he had considered both options.

He felt that the fact that a young person was involved made the decision difficult. In his 18 years on the bench, he said, he has dealt with all sorts of issues. Many have been sexual assaults, and none of them were easy.

Morin said he had no choice but to declare the mistrial and to recuse himself from the case.

He said he can no longer preside because he has already heard some of the evidence.

The court had heard testimony on Monday from three RCMP officers involved in the investigation prior to the complainant’s chief examination.

Morin made it clear he was aware this decision would have an impact on the people involved.

“I know it is painful,” he said.

He said experience should tell anyone that mistakes happen.

“That I apologize for profusely,” he said.

Morin ordered the case sent back to the trial co-ordinator and a bail hearing scheduled for the man. Morin said the man would be remanded into custody until the bail hearing.

Pegg asked that the bail hearing be scheduled for today, as she is still in the territory.

Morin indicated he was in favour of the suggestion provided that he was not the judge presiding. According to the court schedule, he would not be.

The bail hearing was scheduled for 1 p.m. today.