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 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2024 03 06 COURT FILE No.: 23-91109493 Central East - Newmarket
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEYRON MARK MOORE
Before: Justice M. Townsend
Heard on: March 5, 2024 Reasons for Judgment released on: March 6, 2024
Counsel: K. Batorska.......................................................................................... counsel for the Crown A. Sobcuff................................................... counsel for the accused Keyron Mark Moore
Ruling on Crown 486.2(2) and 486.1(2) Application
1On this Application, the Crown seeks 2 orders:
(1) An order pursuant to section 486.2(2) to allow the complainant to testify outside the courtroom via closed circuit television or via Zoom; and
(2) An order pursuant to section 486.1(1) to allow a court support dog to be present and seated close to the complainant during her testimony.
2At the conclusion of submissions on the Application, and so that counsel could prepare for the testimony of the complainant, I indicated to counsel that I would be granting each of these orders and that written reasons would follow. These are those written reasons.
Overview of the Evidence
3I heard evidence throughout this and related pre-trial motions, that the complainant in this matter, A.T. is currently 31 years of age.
4The allegations are that on November 1, 2022, at approximately 11:04 pm, York Regional Police received a 911 call from Hayoon Chung, reporting that she had just observed a woman who appeared to be kidnapped. This occurred at a commercial plaza located at 100 Steeles Avenue West in the City of Vaughan.
5Ms. Chung described the suspect vehicle as a grey or silver SUV with a licence plate like B2SK269 or BZSK289.
6Once they arrived at the scene, officers learned that several witnesses had observed a man dragging a woman into a grey SUV. Won Bae Chi witnessed the kidnapping and tried to intervene. The suspect brandished a firearm and shot one round at the direction of Won Bae Chi. The vehicle then drove away at a high rate of speed.
7A second man, presumably not the man that dragged Ms. T. into the vehicle, was seen driving the vehicle. Mr. Chi described the male who shot at him as black, approximately 6'1''"fat", wearing a grey or black hoodie with the hood up.
8Mr. Chi did not observe the driver of the vehicle. A 40-calibre cartridge case was found in the area where Mr. Chi was shot at.
9Investigators identified the female victim as A.T. and located a phone number associated to Ms. T. Police were eventually able to track Ms. T.’s phone number to a neighbourhood in Barrie using emergency “pings.”
10At 7:51 am on November 2, 2022, officers attended the area where Ms. T.’s phone was last pinging and located a silver Kia Soul with Ontario licence plate BZSK289 parked on the roadway, near 9 Daphne Crescent in Barrie. This plate matched the plate that was given to police at the time of the initial 911 call. Police conducted surveillance on the vehicle.
11At approximately 10:49 am, Barrie Police received a 911 call from a female who identified herself as A.T. Ms. T. reported that she had been kidnapped and taken to 64 Daphne Crescent. She managed to escape from the residence and was calling from a neighbouring home.
12ERU attended at 64 Daphne Crescent at approximately 10:55 am. Shortly thereafter, Mr. Michael ROCCO (a one time co-accused of Mr. Keyron MOORE) was arrested at 64 Daphne Crescent. A young person, SM, was found by ERU officers hiding in the attic. That young person was also placed under arrest.
13As a result of surveillance conducted by ERU officers, and other members of the York Regional police on the silver Kia Soul, the driver of that vehicle was followed from the area of 9 Daphne Crescent in Barrie to several other locations within York Region and into Toronto.
14After having driven the Kia Soul to a location behind a Red Lobster in York Region, Mr. Keyron Moore eventually became the passenger in a black Toyota Highlander that came to pick him up. Mr. Moore is observed changing vehicles a second time at the Vaughan Mills Mall wherein he becomes the passenger in a white Acura motor vehicle. Mr. Moore is eventually arrested in Toronto while still a passenger in that white Acura.
15Ms. T. provided a statement to YRPS wherein she indicated that while in the parking lot of 100 Steeles, she was approached by a Kia SUV. Two males exited the Kia and dragged her into the vehicle. Her hands were tied with tape and tape was placed over her mouth.
16Ms. T. described that both males were black, one wearing a white hoody and black jacket, and one wearing an orange-coloured hoody, with a black vest. Both had Jamaican accents.
17At one point, the vehicle she was in was low on gas and the male in the orange hoodie left for a few hours to retrieve gas. At that time, she described that the suspect in the white hoodie, got into the back with her. He was the one that had originally been driving. He told her to give him oral sex, she refused. The male then told her he did not have to ask her. Ms. T. performed fellatio on the male, and he ejaculated in her mouth and on her person. The male also touched her chest during the incident.
18Ms. T. advised she was in the Vaughan area from 11:00 am until about 6:00 am, when one of the males was speaking to someone on the phone, and that person on the phone told them to take her to Barrie.
19Once in Barrie Ms. T. was brought into a garage where there were other males. In total Ms. T. indicated she saw three males with firearms.
20Ms. T. heard the suspects demanding bitcoin, crypto currency and large amounts of money. She described repeatedly being assaulted, her hands, knees and feet were struck with a with a hammer, her hair and feet were burned, her legs were poked with a screwdriver.
21The individuals made Ms. T. strip naked. They also threatened to inject her with heroin if she did not provide them with bitcoin.
22Ms. T. was often left in the garage alone. At one point she was able to push open the back door of the garage and climbed the fence to a neighbor's house where she was able to call 911.
The Legal Framework and Analysis
23On this Application, the onus is on the Crown to show, on a balance of probabilities, that the presence of a support dog, and that the testimony of the complainant outside the courtroom via CCTV or Zoom would facilitate the giving of a full and candid account by the complainant of the acts complained of, or that the granting of these orders would otherwise be in the interest of the proper administration of justice.
24It bears noting, that the phrase “facilitate the giving of a full and candid account” was not always included in this section. As a result of amendments to the Criminal Code in 2015, the word “necessary” was replaced with “facilitate”.
25As Backhouse J. noted in R. v. Jimaleh, [2016] O.J. No. 5133 (SCJ) at paragraph 7:
Section 486.2(2) previously required that the order be "necessary to obtain a full and candid account from the witness of the acts complained of." The amended section has lowered the threshold somewhat to that of "would facilitate the giving of a full and candid account..." which indicates an intention to make testifying by closed circuit or behind a screen a more commonplace occurrence.
26Except for subsections (f) and (f.1) in section 486.2(3) of the Criminal Code, the factors to consider in making the orders are as follows (from s.486.1(3)):
(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.
27Courts throughout Canada have increasingly recognized the difficulty experienced by complainants in coming to testify at a criminal trial. This is particularly true for victims of intimate partner violence, sexual violence, and offences involving vulnerable victims.
28The truth-seeking function of the trial process must constantly be balanced with the protection of the rights of an accused person to a fair trial, and the ability to make full answer and defence to charges that they face.
29In R. v. R.V., 2019 SCC 41, [2019] S.C.J. No. 41 the Supreme Court of Canada recognized the reality of this balancing act. Justice Karakatsanis stated at paragraph 1:
Sexual assault trials raise unique challenges in protecting the integrity of the trial and balancing the societal interests of both the accused and the complainant. Parliament and the courts have responded to these challenges by setting out rules of evidence tailored to this context.
30Courts must be ever mindful that in Applications where an order is sought that will affect the manner in which a complainant - or other witness in a criminal trial - will give their evidence, the rights and protected interests of all parties must be balanced with the proper administration of justice in achieving it is important truth-seeking function.
31Justice L'Heureux-Dubé noted in R. v. Levogiannis, [1993] S.C.J. No. 70 at paragraphs 13:
The examination of whether an accused's rights are infringed encompasses multifaceted considerations, such as the rights of witnesses, in this case children, the rights of accused and courts' duties to ascertain the truth. The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.
32The Court further notes at paragraph 21:
The examination of whether an accused's rights are infringed encompasses multifaceted considerations, such as the rights of witnesses, in this case children, the rights of accused and courts' duties to ascertain the truth. The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.
33In submissions on this Application, counsel for Mr. Moore submitted that by allowing in particular the 486.2(2) application, the court would effectively be denying Mr. Moore the right to “face his accuser”. I disagree.
34In cases involving the application of s. 486.2(2), we must be mindful to recognize the difference between “facing an accuser” in the traditional face-to-face way, and “facing an accuser” via testimony outside the courtroom.
35In my opinion, the right of an accused person to “face his or her accuser” is still very much recognized and protected by allowing a complainant to testify via CCTV.
36Justice L'Heureux-Dubé commented on this in R. v. Levogiannis at paragraph 30:
I could not agree more with Morden A.C.J.O. when, referring to the "right" to face one's accuser claimed by the appellant, he says (at pp. 366-67):
My conclusion, based on the foregoing, is that, since it is an accepted tradition of our legal system that judge, jury, witnesses, accused and counsel are all present in sight of each other, it can be said that normally an accused has the right to be in the sight of witnesses who testify against him or her. That this is probably so is confirmed by the need for a judge's order providing otherwise if the accused is not to be in the sight of the witnesses....
Accepting that it is a right, of a kind, I do not think that it can be said to be an absolute right, in itself, which reflects a basic tenet of our legal system. It is a right which is subject to qualification in the interests of justice.
I do not think that, by reason of the absence of face-to-face confrontation, any principle of fundamental justice has been infringed in such a trial. It may be that, if the order under s. 486(2.1) is not properly made, a legal right has been infringed, but that is not the present issue.
37Viva voce testimony in open court by victims of sexual violence and related violent offences can be traumatizing and revictimizing at the best of times. The sections exist in the Criminal Code for a reason and are tools which the Crown can attempt to utilize in order to ensure that victims of crime are not traumatized or revictimized, and to ensure the full and candid account of the acts complained of is facilitated. Mr. Moore is very much able to face his accuser if Ms. T. testifies via CCTV.
38In R. v. Evans, [2017] O.J. No. 7268 R.C. Boswell J. stated at paragraphs 21 and 22:
It has been conclusively determined that the use of testimonial aids, such as a screen or video-linked testimony may well promote society's interest in getting at the truth. At the same time it does not undermine the principles of fundamental justice, nor impinge on the accused's Charter-protected right to a fair trial: R. v. J.Z.S., 2008 BCCA 401, [2008] B.C.J. No. 1915 (B.C.C.A.) aff'd 2010 SCC 1, [2010] 1 S.C.R. 3. Section 486.2(2) is constitutionally valid.
What is required of the court, in an application under s. 486.2(2), is to assess whether permitting the use of a testimonial aid will enhance, rather than impede, the truth-seeking function of the trial.
39See also R. v. Godfrey, [2023] O.J. No 5904 wherein Sigurdson J. agreed that the use of testimonial aids, such as a screen or CCTV promote society’s interest in the truth-seeking function of the trial process. As well, the utilization of this tool in that process does not undermine the principles of fundamental justice, nor impinge or impede an accused person’s right to a fair trial.
40Counsel for Mr. Moore argues on this Application that the Crown has not met its burden, in particular because there is no substantial evidentiary basis for the Application. Again, with respect, I disagree.
41Holly Palmer of the Victim Witness Assistance Program here in Newmarket provided a “will say.” That document was received into evidence on consent in this Application. In that “will say” Ms. Palmer indicates that she met on several occasions with Ms. T., and that on each of those occasions Ms. T. has expressed significant anxiety with respect to the thought if viva voce testimony in the courtroom in the presence of Mr. Moore.
42That anxiety, according to Ms. T., manifests itself physically (crying, throwing up, hyperventilating) and psychologically (shutting down, chocking on her words, her mind going blank). Ms. Palmer also indicated that Ms. T. felt physically ill on a courtroom tour in preparation for the trial.
43I accept that the “will say” of Ms. Palmer provides a sufficient evidentiary basis for the Application.
44Counsel indicated that there ought to be some medical records, counselling records, or proof that the complainant is taking medication in order for the Court to properly assess the claims of Ms. T. and/or VWAP.
45There is no requirement for this type of evidence on a 486.1(2) and 486.2(2) Application. The evidence provided by the VWAP worker is entirely sufficient for a determination of whether the Crown has met its burden on this Application. The evidence on this application need not take any particular form. See R. v. Levogiannis, supra at paragraph 34.
Conclusion
46The criminal trial process is a search for the truth. Participants in that search for the truth must be permitted to deliver their testimony in a manner that facilitates a full and candid accounting of the evidence relevant to that trial process.
47The threshold burden required of the Crown on this Application is simply that it is more likely that the witness will give a full and candid account with the use of the testimonial aids than without the use of those aids. See R. v. Aswal, [2022] O.J. No. 2771.
48In balancing the factors as outlined at ss. 486.1(3) and 486.2(3), I find that the testimony of the complainant outside the courtroom (through the use of CCTV or Zoom) and the presence of a support dog with the complainant during her testimony, will facilitate the giving of a full and candid account of the acts complained of, and that the use of these testimonial aids is in the interest of the proper administration if justice.
Released: March 6, 2024 Signed: Justice M. Townsend