ONTARIO COURT OF JUSTICE
18-N2161
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RAJEEV KUMAR TEOTIA
Before Justice D.L Wolfe
Heard on March 20, 2019
Reasons for Judgment released on March 28th, 2019
Graeme Leach counsel for the Crown
Douglas R. Lent counsel for the defendant Rajeev Kumar Teotia
WOLFE J.:
1The Crown has brought an application seeking that the court receive testimony via video link pursuant to s. 714.2 of the Criminal Code.
2Parliament has provided a means by which a witness outside Canada can give testimony in the virtual presence of the parties and the court. The court shall receive such evidence unless the defendant satisfies the court that to do so would be contrary to the principles of fundamental justice.
3The Crown complied with the requirement for ten days notice.
Background:
4Mr. Teotia was charged with driving “over 80” contrary to s. 253 of the Criminal Code. Constable Campbell (the Constable) is the officer in charge and arresting officer who made the breath demand.
5The following sequence of events relate to the scheduling of the trial:
In April of 2018 the Constable scheduled an April 2019 trip to Myrtle Beach, South Carolina.
Mr. Teotia was charged on May 28th, 2018.
On October 15, 2018, a Judicial Pre-Trial was held and paperwork was completed to facilitate setting a trial at the next court appearance.
On October 25 or 26, 2018, a Niagara Regional Police Service directive was circulated requiring that all annual leave selections for 2019 be submitted by November 21, 2018.
On October 29, 2018, a trial date was set for April 29, 2019.
The Constable was notified electronically on October 31, 2018.
On November 14, 2018, the Constable requested to be excused from the trial but was deemed an essential witness by the Crown’s office.
On November 28, 2018, the Crown’s application to adjourn the Trial was denied by Justice Wilkie.
6The Constable’s trip involves:
three to five other people that would travel as passengers with the Constable as driver,
a $250 non refundable deposit.
These are factors that would be considered had the Crown been proceeding under section 714.1 but are not relevant to section 714.2 which does not take into account exceptional circumstances.
7Most of the Crown and defence materials filed relate to cases decided under s.714.1 and are therefore of limited value because:
s.714.1 directs the judge to take into account discretionary factors that do not apply to s.714.2.
s.714.1 places the onus on the applicant.
The materials are nevertheless instructive with regard to the functioning of the technology.
8The defence argued that to allow the application would diminish his right to full answer and defence for the following reasons:
Parliament did not create this section for this fact situation where the witness is not permanently located in a distant geographical location and not otherwise under the jurisdiction of the court. The Constable lives and works in the Niagara Region.
To allow the application would circumvent the concerns expressed by Justice Wilkie when denying the Crown’s adjournment application. The vacation planning procedure followed by the Niagara Regional Police caused difficulties for defendants and citizens who were entitled to set a trial date and rely on that date.
To allow the application would create an unwelcome precedent and would open the floodgates to further such applications.
This case would require the witness to be cross-examined on exhibits such as a video recording of events at the police station, or a Google map of the area of driving, and the technology would not permit the officer to view the exhibits and reference certain portions.
Counsel should be able to observe and interact with the witness from the same room when evidence is being received in order to access credibility.
9The Crown argued that:
The application was necessary in the circumstances and in keeping with the intent of Parliament.
The application had to be decided on the facts of this case and not overarching policy considerations. That the court had not been overwhelmed by these applications.
It is conceded that it would be more difficult to place evidence in front of the witness than when he is in the witness box. But the display screen could be divided into two sections to allow observation of the witness and for the witness to demonstrate something with an exhibit. In particular, the Crown relies on the approach of Justice Sheard in R. v. Belem (tab 7) where hard copies of documents could be provided to the witness ahead of time in sealed envelopes only to be opened at the direction of the trial judge.
The technology is available to allow for the virtual presence of the witness at the trial.
10The affidavits in support of the Crown’s application indicate:
“Skype for business” software is available for Point to Point audio and video conferencing.
The Constable will have with him both a computer and a smart phone with the necessary software to participate in the video conference.
The Constable will have access to high speed internet.
The video equipment will be managed by the Crown from a Crown computer/laptop that can display a picture for the judge, defence and the gallery. A picture of the witness will be viewed by all sides.
5 The in court camera would be focused on the lectern or who is talking and can be turned when the judge needs to address the court.
The requirement for “virtual presence”
11Defence counsel rightly raises concerns about the ability of the video link technology to meet the requirement for virtual presence.
There are many cases in which a court has found that video technology can be used. In R. v. Rice, {2016] N.J. “No. 204 (tab1 defence) at Para 14 (2). concludes that virtual presence “will be satisfied if the parties and the court are able to see, hear, and question the witnesses”. And at paragraph 34: “The Court must assess suitability of the location from which the evidence would be presented. This includes considering whether the witness would face the same level of solemnity offered by a courtroom and whether he or she will be as free from outside influences while testifying as if testifying in person at the trial.”
12In R. v. Allen, 2007 ONCJ 209, Justice B. Duncan observed at a preliminary hearing in relation to the successful implementation of video link technology:
Paragraph 35 – the sound quality was excellent.
Paragraph 35 – a couple of brief technical problems arose… quickly remedied.
Paragraph 37 – In summary, I would assess the technology as first rate. The process was smooth and, as advertised, was a “virtual experience”, only distinguishable from the real thing in the obvious superficial ways.
13In R. v. Cardinal, [2006] Y.J. No. 77, in answer to defence concerns at paragraph 14 Davies J. is quoted in the Gibson decision as having stated: “if he determined during examination that trial fairness was being compromised, he would correct the situation, even discontinuing the procedure if necessary.” In this case granting the Crown application does not mean that issues that arise cannot be readdressed during the trial.
14Some of the cases submitted by counsel are more than ten years old and it is very likely that advances in technology, equipment, software and high speed connectivity have improved dramatically during that time. I have no doubt that it is possible to achieve the virtual presence of the witness in the courtroom.
The requirement for direct observation of the witness
15R. v. Belem, 2017 ONSC 2213, Sheard J. summarized the law as follows:
At paragraph 31 quoting from the Supreme Court in Levogiannis “there is no right of an accused to have a face-to-face confrontation with the complainant” and at paragraph 33 “rules of evidence and procedure have evolved through the years in an effort to accommodate the truth-seeking functions of the courts, while at the same time ensuring the fairness of the trial”
At paragraph 40 quoting from the Ontario Court of Appeal in DeHaan “Courts have rejected the notion that demeanour is determinative of credibility.”
16In R. v. Turner, 2002 BCSC 1135, at para. 12 the British Columbia Supreme Court held:
At paragraph 12. As to the assessment of credibility, sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying. In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err.
17I accept that it is best that the witness be in the same room and that except where Parliament has provided otherwise that is the usual practice.
18Parliament clearly intended that the court should be enabled to receive evidence in the manner proposed. The defence has not met the onus of showing that to receive the evidence by video link would be contrary to the principles of fundamental justice.
19My conclusions with respect to the defence arguments, and why they fail to meet the onus are as follows:
It may well be that Parliament did not create s.714.2 for a local resident police officer while on vacation out of the country. However there is nothing about the section that prohibits its application to these circumstances. In fact by legislating that the judge shall grant the application unless it is shown to be contrary to principles of fundamental justice Parliament is facilitating such applications.
The current NRPS vacation planning may be cumbersome and create difficulties for other participants in the justice system, but the decision to refuse an adjournment of the trial does not govern the result of this application. If the application is allowed, the accused and other participants are not inconvenienced as they would have been if the adjournment application had been granted and a new trial date established. Convenience of the participants is not a consideration under s. 714.2 except as it may relate to the principles of fundamental justice.
I accept that this is an unusual circumstance and not likely to influence NRPS members to seek vacation time out of the country for the purpose of avoiding in-court testimony.
With appropriate implementation of the technology, the witness should be able to provide his testimony and interact with any exhibits.
While the usual and preferred experience is for witnesses to be present in the courtroom, Parliament has determined that in these and other circumstances, the use of video technology means actual presence in the courtroom is not always required. Observations as to demeanor are not to be the sole criteria for assessing credibility and with virtual presence the witness can be closely monitored without being physically present.
20The Crown’s application to permit Cst. Campbell to provide his evidence at the trial via video link, pursuant to s. 714.2 of the Criminal Code is granted.
21The following minimal requirements for the witness’s testimony should apply:
When first called the witness should see the judge in the courtroom and the clerk who will administer the oath. Thereafter examining counsel should appear in the witness’s view.
The witness can be provided ahead of time with a Bible or other Holy Book as may be necessary if the evidence is to be sworn rather than affirmed.
Exhibits that are anticipated being used during the trial will be provided to the witness in advance contained in sealed envelopes to be opened at the direction of the trial judge. The Crown will assist the defence by forwarding defence material to the witness. Counsel can arrange deadlines for the filing of material or if no agreement is reached apply to the court for directions.
The technology must allow the court to ensure the witness has the right exhibit and both counsel and the witness can interact by reference to the exhibit.
Examining counsel and the witness can see each other at all times with additional monitors displaying to the accused, other counsel, the presiding judge, the clerk and reporter, and the public gallery. There must be audio available that can be clearly heard throughout the courtroom and an ability for the witness to hear each counsel, the clerk and the judge.
During any breaks in the testimony the witness should be directed not to interact with anyone or any material, similar to an order excluding witnesses.
The witness must testify in a private room free from distractions and be able to adjust the camera to show that no one else is present.
The technology must include an in-court mute function so that the witness can be effectively excluded, if necessary, during any objections.
The Crown should test the operation of the technology prior to the calling of the witness to determine that these minimal requirements are met and the “virtual presence” of the witness is achieved without interruptions.
Any shortcomings in the procedure that present during the trial can be revisited and reconsidered.
Released: March 28, 2019
Signed: Justice D.L. Wolfe