L. Scaringi

The appellant appealed her conviction for operating a vessel with a blood alcohol concentration over 80 milligrams.

She argued the trial judge misapprehended evidence, made findings of fact not before the court, erred in assessing credibility based on motive, and shifted the burden of proof.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's credibility assessments were supported by the evidence and that no material misapprehension of evidence occurred.

The trial judge reasonably inferred that the defence witnesses' failure to tell police the appellant was not operating the vessel undermined their credibility.

The Crown brought an application under s. 486.2(1) of the Criminal Code seeking an order that a child complainant testify from a room outside the courtroom via closed‑circuit television with only a support person present.

The accused consented to testimony by closed‑circuit television but argued that counsel should be physically present in the room and that cross‑examination occur face‑to‑face with the child.

The court held that the positioning of participants during testimony is within the trial judge’s discretion and must promote the truth‑seeking function of the trial while ensuring fairness.

Relying on Supreme Court of Canada jurisprudence recognizing the need to protect child complainants from intimidation and trauma, the court concluded that placing multiple lawyers in close proximity to the child would risk undermining the reliability and completeness of the child’s evidence.

The Crown’s application was therefore granted and the child was permitted to testify from a separate room accompanied only by a support person.