WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) FAILURE TO COMPLY WITH ORDER
Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Devin Beals, Shayne Beals, Alexander Buckland, Clive Walters
Before: Justice S. Caponecchia
Heard on: August 7, 8, 9, 10, 13, 14, 15, 16, 17, 2018 and October 9, 10, 11, 2018 and November 1, 2018
Ruling – Section 486.2(2) Application released on: January 8, 2019
Counsel
Brian McGuire & Peter Maund — counsel for the Crown
Ms. Gadhia — counsel for the accused Devin Beals
Mr. Taraniuk — counsel for the accused Shayne Beals
Mr. Kirichenko — counsel for the accused Alexander Buckland
Mr. Abbey — counsel for the accused Clive Walters
CAPONECCHIA J.:
INTRODUCTION
1Heidrah Shraim was fatally stabbed in the chest on November 22, 2017. Devin Beals, Shayne Beals, Clive Walters and Alexander Buckland were committed to stand trial on first degree murder on November 1, 2018.
2The preliminary hearing took place over the course of 12 days on August 7, 8, 9, 10, 13, 14, 15, 16, 17, and October 9, 10, 11, 2018. The Crown made an application to have one witness testify remotely from an undisclosed location in Ontario pursuant to s. 486.2(2). On August 14, 2018 a voir dire was held. I granted the application subject to certain conditions. These are my reasons.
THE LAW
3Section 486.2(2) provides as follows:
Despite section 650, in any proceeding against an accused, the judge or justice may on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. (emphasis added)
4Subsection 486.2(3) sets out the factors that I must consider on this application:
(a) the age of the witness;
(b) the witness' mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
5The Applicant must establish the basis for the order on a balance of probabilities.
THE EVIDENCE
6The Crown applied to have Samantha Fishman testify remotely. She is the girlfriend of one of the defendants, Alexander Buckland. They share a child together. Ms. Fishman had important evidence to give regarding the homicide which I do not intend to review in great detail. In brief, Ms. Fishman accompanied her boyfriend and two other defendants (Devin Beals and Clive Walters) to the homicide scene. She remained in her boyfriend's parked car while the three defendants exited the vehicle to confront the deceased and his friends. She has firsthand knowledge regarding the conduct of three of the defendants leading up to the homicide and immediately afterwards. The three defendants made statements in her presence. She also places Mr. Shayne Beals at the scene of the homicide.
7In support of their application the Crown called Constable Sheri Lynn Brown and filed a copy of an anonymous Facebook message sent to Ms. Fishman in June 2018. The message read:
Just because there is a hit on your man there is on you and your son
We will be coming for you
8Constable Brown testified that she reached out to Ms. Fishman by text message on or about June 19, 2018 to make arrangements to deliver a subpoena and set up a date to meet with the Crown in advance of the preliminary hearing scheduled to begin in August.
9On June 22, 2018 Ms. Fishman texted Constable Brown. They spoke on the phone and Ms. Fishman told the officer about a message she received and advised she was scared. The officer described her as overwhelmed and "freaked out." Constable Brown advised Ms. Fishman to report the threat immediately to her local police agency. Constable Brown subsequently learned from the local investigators that the message had been sent from a fake account that had been deleted. Ms. Fishman had taken a screen shot of the message before it was deleted. A plan was put in place to conceal Ms. Fishman's whereabouts.
10Constable Brown received another message from Ms. Fishman on July 26, 2018. Ms. Fishman and her child had been followed coming out of her building. Someone in a car pulled up to her and asked her to come speak with them. Ms. Fishman was advised to report this incident to her local police force and she did so.
11On or about August 2, 2018 Constable Brown met with Ms. Fishman in person. Ms. Fishman was scared. She believed the defendants and their family members were gang related. She was fearful of retaliation against herself and her child. Ms. Fishman disclosed that her boyfriend, the defendant Alexander Buckland, had reported to her that he had been threatened and beaten up more than once and stabbed while in custody. She specifically reported that Shayne and Devin Beals threatened her boyfriend while being transported to court on one occasion. She also disclosed that her boyfriend had been accused of being a rat because she had given a statement to police.
12Ms. Fishman told the officer she believed that if she testified someone will try to kill her. Ms. Fishman was feeling scared and anxious about coming to court. Constable Brown observed Ms. Fishman to physically shake when they discussed coming to court. Ms. Fishman also mentioned requiring a ventilator and taking medication to calm her nerves. They also talked about the possibility of someone following her to or after court if she was required to come in person. The officer discussed the possibility of testifying remotely and Ms. Fishman indicated that it would help her testify more freely without stopping or clamming up.
13Constable Brown testified that she was next contacted by Ms. Fishman on the first day of the preliminary hearing. Ms. Fishman came to court to support her boyfriend and his mother. After she arrived inside the courthouse she got scared and asked the officer to come get her. She told the officer she was in the cafeteria with her father. She was too frightened to leave her location. Constable Brown sent officers to meet her.
14The investigation into the Facebook message was on going at the time Constable Brown testified. The Crown advised that police had completed their investigation into who followed Ms. Fishman and investigators were satisfied the incident was unrelated.
POSITION OF THE DEFENCE
15Counsel for Alexander Buckland took no position on the merits of this application. Counsel for the other three defendants opposed the application. Their arguments can be categorized as follows:
(i) Right to Confront
A defendant is entitled to face their accuser. Testifying is supposed to be difficult because it ensures truthful testimony. A witness who testifies outside of court may be more inclined to be less truthful because they cannot be confronted in person and can hide behind the technology barrier. Defence counsel lose the advantage of being able to watch a witness's reaction when being questioned.
(ii) No Link to Defendants
The Facebook threat cannot be linked to the defendants.
(iii) Threshold and Alternative Measures
Parliament did not lower the threshold for this application, it remains discretionary and should only be granted in the rarest of cases because it is all too easy for a witness to claim they are too scared to testify. There are other methods which can ensure that the witness is not followed or threatened if she came to court. This application should only be granted as a last resort where other methods are insufficient to protect the witness. In this case, Ms. Fishman could be escorted to court through a secret entrance, accompanied by police at all times while at the courthouse and escorted home.
(iv) Procedural Disadvantage
The defence argued that they are disadvantaged by the procedure proposed by the Crown for the taking of Ms. Fishman's testimony. It was expected that one Crown would remain in the close circuit room at the undisclosed location while the witness was questioned by a second Crown and all four defence counsel from court. This proposal was made in order to facilitate access by the witness to her statements, paper and electronic exhibits, if necessary. The defence also objected to the suggestion of having to provide a list of exhibits they anticipated putting to the witness to the Crown in advance of their cross-examination. The defence was unable to estimate how many electronic exhibits they may wish to show the witness. The Crown was prepared to receive them in numbered, sealed envelopes, or not at all, and retrieve them from the database as requested, in real time.
ANALYSIS
16Regarding the first defence argument, I adopt the reasons of Justice Duncan who faced the same argument on a murder preliminary inquiry:
The main objection is that the entire truth seeking process suffers by permitting the witness to "mail it in" - to give evidence at a distance without his being brought into the presence of those he is accusing and the solemn and majestic atmosphere of the courthouse. It is said that there is a right to confrontation that is infringed or at least diluted by the video-link process. However, such right of confrontation as exists in Canada is a qualified right and can be subject to exceptions designed to achieve some valid purpose in the administration of justice: R. v. Levogiannis, 62 C.C.C. (3d) 59 (Ont.C.A.). Witness protection would undoubtedly qualify as a valid purpose. The Court in Levogiannis cited with approval the case of R. v. R.(M.E.), 49 C.C.C. (3d) 475 where the Nova Scotia Court of Appeal held that an order permitting a child's evidence to be received by video-link did not offend the accused's right to face his accuser. The Court said:
The right to face one's accusers is not in this day and age to be taken in the literal sense. In my opinion, it is simply the right of an accused to be present in court, to hear the case against him and to make answer and defence to it.[1]
17Regarding the second argument of the defence, I agree that there is no evidence to prove that any of the defendants sent the message. The author took steps to conceal their identity. This however does not detract from the fact that the message conveyed a threat within the meaning of the Criminal Code. The defence agreed the message was, objectively speaking, a threat. The impact of the message on Ms. Fishman is understandable in the circumstances of this case. I am of the view that her fears were genuine and reasonable. The fact that the threat is not linked to any of the defendant's, does not detract from the impact it has had on her ability to testify.
18Regarding the third argument of the defence, I respectfully disagree with their characterization of s. 486.2 as providing for a procedure in only the rarest of cases, as a last resort. The legislative scheme which governs this application was amended by the Victims' Bill of Rights in July 2015. Previously, the legislation permitted the reception of evidence given from outside the courtroom if it was necessary to obtain a full and candid account by the witness. Now, the section permits the order to be made if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness. Further, as of July 2015 it appears that a completely separate ground was contemplated by the phrase "or otherwise be in the interest of the proper administration of justice."
19Justice Goldstein in R. v. Oppong, para. 12, held that Parliament lowered the applicable threshold for a 486.2(2) order in 2015. Previously, in R. v. Jimaleh, another Superior Court also took the view that the amendments had the effect of making testifying by closed circuit or behind a screen a more commonplace occurrence.
20In R. v. K.P., para. 24, Justice Gorman of the Newfoundland and Labrador Provincial Court considered the effect of the amendments. He said he considered the deletion of the word "necessary" as significant. He went on to consider the proper interpretation of the word which effectively replaces the old necessity test: facilitate. At paragraphs 25 to 28, Justice Gorman reviews recent interpretations of that term in other provinces. Justice Gorman notes that other jurists have commented that it is a "very low threshold" for the issuing of the order.
21I agree with those jurists who have previously concluded that "facilitate" means to make easy, or easier and the legal test has been changed by the removal of the previous "necessity" requirement.
22The cases relied upon by the defence, R. v. C.D., [2010] O.J. No. 4351 (S.C.), and R. v. Alam, [2006] O.J. No. 5802 (S.C.), are distinguishable from the facts in this case and apply the legislation in effect prior to 2015. In the case of R. v. Hamer, [2016] B.C.J. No. 1258, the court applied the pre-amendment "necessity" standard notwithstanding the amendments to the Criminal Code in July 2015 were in effect.
23The fourth defence argument is not without merit. I agree that there is something seemingly unfair in having the Crown sit in the same room as the witness while she testifies and defence counsel is excluded. I accept that the Crown's proposal to remain seated in the close circuit room was simply logistical, to facilitate access to documents and electronically display and transmit exhibits if needed. That said, I ordered the Crown to remain outside the closed circuit room subject to certain limited exceptions and/or with leave of the court. In future, it would be advisable to make arrangements to have a neutral third party, such as a clerk of the court, to perform the administrative tasks the Crown took responsibility for in this case.
24On the facts of this case, I am not otherwise persuaded that the defence would be disadvantaged in their cross-examination by the reception of the evidence from the witness at a remote location. The facilities and technology demonstrated at the beginning of this application were excellent. The video quality was clear and permitted a close up view of the witness, as if she was in the witness stand. The demonstration revealed a clear view of the witness's face and expressions, her body language from the waste up, as well as the background. The view on video effectively replicated what a counsel would see if the witness were sitting in the witness box in court. The audio quality was likewise excellent. Arrangements were made to have Ms. Fishman's transcribed statements within arm's reach if needed. This was not a document heavy case and electronic copies of any exhibits could be simultaneously displayed to the witness and court in real time without the defence having to provide the Crown with a list in advance. I was satisfied that the accused would be able to conduct a fulsome cross-examination of the witness using the technology available.
25Turning to s. 486.2(3) and the factors that I must consider on this application. The first is the age of the witness. When Ms. Fishman testified at the preliminary hearing, she indicated she was 21 years old, however there was no evidence led on the application as to her age. There was also no evidence led on the application with respect to any specific mental or physical disability affecting the witness. However there was evidence from Constable Brown that Ms. Fishman felt she may need to rely on a ventilator and take medication in order to stay calm enough to testify.
26A third consideration is the nature of the offence. The offence is the most serious of offences, murder. Testifying in such a case would be daunting for most civilian witnesses. In addition, someone took steps in this case to intimidate a crucial witness prior to the preliminary hearing. The message had the desired the effect. There must be zero tolerance by the courts for such conduct. This factor weighs heavily in favour of the order being made.
27The relationship between the witness and the defendants is the fourth statutory consideration. In this case, there was no dispute regarding Ms. Fishman's relationship to the defendants or that she had material evidence to give. When she gave her statement to police she was carrying Mr. Buckland's child. Police took her statement from a hospital room. Ms. Fishman and Mr. Buckland continue to be in a relationship. Ms. Fishman and Mr. Buckland were friends with the other three defendants. Ms. Fishman's relationship to all the defendants, makes it easy to understand that it would facilitate a full and candid account if she were to testify from outside the courtroom. Their particular knowledge of her history and vulnerabilities are factors which speak for themselves, in giving effect to the legislation as it appears to be intended. That said, I do not find this factor alone to be determinative of this application.
28I find the fifth and sixth factors are determinative. The fifth weighs heavily in favour of the order. The witness received an anonymous objectively credible threat that is still under investigation. I am satisfied the order is needed for her security and to protect her from intimidation and retaliation. Facilitating the taking of her evidence in such a way to prevent both is part and parcel of doing so. Society has an interest in encouraging witnesses in a homicide case to come forward and testify. Providing protection to them in these circumstances is essential.
29Upon weighing all the consideration I am statutorily obliged to consider pursuant to s. 486.2(3), I find the Crown established, on a balance of probabilities, that Ms. Fishman's evidence would be facilitated by the giving of her evidence remotely from outside the court and that it is in the interest of the proper administration of justice for her to do so.
CONCLUSION
30For the reasons indicated above, Ms. Fishman was permitted to testify by video link from a remote location pursuant to s. 486.2(2) of the Criminal Code.
Released: January 8, 2019
Signed: Justice S. Caponecchia
1R. v. Allen, [2007] O.J. No. 1353 (Ont. C.J.) para. 27