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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
DATE: 2024 01 22 COURT FILE No.: HALTON INFO # 22-12102592
BETWEEN:
HIS MAJESTY THE KING
— AND —
R. G.
Before Justice S.N. Latimer Heard on November 10, 2023, January 10, 2024 Reasons for Decision released on January 22, 2024
Counsel: Meghan Chant..................................................................................... counsel for the Crown Robert Brooks.............................................................................................. counsel for R. G.
1This ruling relates to an application to have a complainant testify via closed circuit television. I heard evidence and submissions on November 10, 2023, and advised the motion was granted with reasons to follow. The trial was conducted in January 2024 and is now complete. What follows are my reasons for allowing the application, with a brief epilogue from the vantage point of a completed trial.
I. Section 486.2(2) of the Criminal Code
2The complainant is twenty-eight years of age. The applicable test for CCTV testimony of a witness over the age of eighteen years is found in s. 486.2(2) of the Criminal Code. CCTV applications of this kind are regularly brought in Halton Region. I have addressed this provision in prior rulings in 2021 (R v Mischuk, 2021 ONCJ 202) and 2022 (R v MZ, 2022 ONCJ 189). My understanding of the legal considerations has not changed. I apply that understanding to this application.
3This provision was amended by Parliament in 2015. In 2020, Justice Leach of the Superior Court of Justice discussed the impact of that amendment in R. v. JRM, 2020 ONSC 8130. At Para. 17(d), he wrote:
Courts have emphasized that s. 486.2(2) previously required that such an order be “necessary to obtain a full and candid account from the witness of the acts complained of”, whereas the amended provisions, brought about by the Canadian Victims Bill of Rights in 2015, which enacted a package of amendments to the Code and other laws, have lowered that threshold somewhat to a less stringent test. In particular:
i. The amended provisions of s486.2(2) now permit such orders to be made if a judge is of the opinion that the order “would facilitate the giving of a full and candid account by the witness of the acts complained”, with “facilitate” plainly meaning “to make easy or easier”, “less difficult”, or “more easily achieved”.
4A low test, however, is still a test that must be met by the applicant. The provision sets out a series of relevant considerations. I will now move to my analysis. In considering this discretionary order, I view the evidence through the lens of the statutory considerations in s. 486.2(2).
II. Analysis
5The age of the witness. The complainant is a twenty-eight-year-old woman. R.G. is her great grandfather. The allegations are of a sensitive nature.
6The witness’ mental or physical disabilities, if any. The complainant advised VWAP personnel that she suffers from “severe anxiety that causes her at times to pull out her hair”, and that she believes not being present in the courtroom, in the vicinity of her great grandfather, would ease her anxiety during the stressful experience of testifying.
7The nature of the offence. This is an allegation of indecent act in a familial context. In this way, it is similar to testifying in a sexual assault case. I am aware of the repeated reminders the Supreme Court of Canada has provided trial judges:
(1) testifying in a sexual assault matter can be traumatizing and harmful to complainants.
(2) The recent trend in courts has been to remove barriers to the truth-seeking process, and
(3) to promote the truth-seeking goal of the court process, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth: JRM, supra, at para. 18.
8It is foreseeable the complainant in this case will have to address sensitive matters related to a family member. I am satisfied this reality could increase the likelihood that in-court testimony would impair her ability to give a full and candid account of her allegations.
9The nature of the relationship between the witness and the accused. As previously noted, R.G. is the complainant’s great-grandfather.
10Subsections E, F and F.1, which relate to witness safety, undercover police scenarios and national security, do not apply in this case.
11Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system. I accept that making these orders, where the evidentiary record justifies it, has the capacity to further these valid justice system interests. I adopt Leach J.’s language in JRM, 2020 ONSC 8130, at para. 45 in this regard.
12“The last statutory consideration is more of a catch-all, “any other factor that the judge or justice considers relevant”. I considered relevant the extensive experience I have had, and other courts have had, with forms of remote testimony during the pandemic. It has been noted by many judges, myself included, that video-enabled testimony does not impair the fact-finding process, and that credibility can be as easily assessed when the witness is on video as when they are seated in court, to the side of the jurist and often facing away, towards the examining lawyer: see the comments in, for example, R v O’Dea, 2021 ONSC 4122 (SCJ), at paras. 18-25, Mischuk, supra at para. 4 (4) and – in the civil context but still applicable to the issue of assessing credibility remotely – Fraser v. Persaud, 2021 ONSC 7147 (SCJ).
13For all of these reasons, I was satisfied, upon the close of submissions on this application, that use of the closed-circuit technology would facilitate the giving of a full and candid account by the complainant of the allegations, and that it would not interfere with the proper administration of justice.
14As I said at the outset, this application is one of a growing body of CCTV applications being brought by the local Crown Attorney’s Office. These applications share many similar features and, regrettably, certain judicial concerns. Given how common these applications have become, it feels prudent to address two of these concerns now.
III. The Crown’s repeated refusal to address the suitability of a screen
15CCTV is not the only testimonial aid to reside in s. 486.2(2). The provision also refers to “a screen or other device that would allow the witness not to see the accused”. Screens are available at both courthouses in our Region and used, albeit infrequently, elsewhere in the province. On the evidence before me, a screen is placed on the witness stand in a manner that blocks the witness’s view of the accused. Because of the nature of the screen’s material, however, counsel can still see the witness while they are testifying.
16A screen’s value to the administration of justice is that the witness remains in the courtroom, visible and in close proximity to both counsel and the court. It does, however, create complications in ensuring that the witness does not see the accused when they enter and exit the courtroom, or while standing when the judge enters.
17The appropriateness of a screen in a given criminal proceeding is an issue to be addressed on a case-by-case basis. What is troubling on these applications, however, is the Crown’s repeated failure to advert to even the existence of a screen when filing these applications. The boilerplate Crown factum filed on this application, like the Crown factum in all recent applications, while lengthy, makes no mention of the recent decisions from our local Superior Court judiciary on the potential compromise position of a screen: see R. v. M.T. 2022 ONSC 3345, per Conlan J.; R. v. QTD, 2023 ONSC 4628, per Chozik J.
18As I expressed to counsel during oral submissions, I am troubled by the continued manner in which the prosecution brings these motions, and the motion material’s neglect of a live issue in the mind of the local judiciary, specifically the potential for a screen to accomplish the s. 486.2 Code goals in a given case. This issue cannot come as a surprise to the local Crown Attorney’s Office, as it has been raised in prior CCTV applications in this court by both me and Justice Crawford. [1] The concern raised by Justice Conlan in M.T., specifically that he is “bothered by what appears to be a routine practice in Halton of the Crown relying solely on one testimonial aid, that is CCTV”, is a concern shared by the Halton OCJ bench.
19It is plain the Crown Attorney’s Office views a screen as an inadequate solution to the concerns raised by complainants in sensitive proceedings. A senior member of the office (not Ms. Chant) said as much to me in a prior proceeding. But disagreement with relevant caselaw is not an excuse for ignoring it. The advocate’s approach should be to raise the issue and then explain why it is insufficient in the present circumstances. It is in this way that the balancing test contained in s. 486.2 can best be conducted: see R. v. QTD, supra, at para. 41.
20In summary on this point, a testimonial aid may or may not be appropriate in a given case. Even if appropriate, CCTV is not the only available testimonial aid. It is in the interests of justice for a court hearing such an application to be informed of all available options in order to ensure that access to justice is provided fairly to both complainants and accused.
IV. The equipment continues to fail
21As I said at the outset, these reasons are being delivered following the completion of the trial. While the questioning of the complainant proceeded without issue, the trial itself was delayed for over an hour due to technical failures relating to the equipment. In R. v. Mungal, 2023 ONCJ 310, I referred to the “endemic” CCTV problems at the Burlington courthouse. Over the past six months, new computer equipment has been installed in both the Burlington and Milton courthouses. This equipment is intended to facilitate in-court video conferencing and remote testimony. Notwithstanding the newness of this equipment, however, problems persist. While not as frequent as they previously were, these problems occur far too often and continue to create meaningful delay in the court system. For example, the courtroom M16 audio problem that delayed this case also presented itself on January 15 during CCTV testimony in a sexual assault proceeding. Given our stacked trial dockets, a lost hour can have a meaningfully negative impact on the administration of justice, resulting in cases not being reached and being put at risk of being stayed for delay.
22In summary on this point, the testimonial aid provisions in the Criminal Code are intended to promote access to justice for witnesses testifying in sensitive criminal matters. But they only work if the equipment actually accomplishes what the provisions set out to achieve. Should these technical problems continue, and the issuance of a CCTV order becomes synonymous with trial delay, judges may reasonably begin to inquire, pursuant to s. 486.2(3)(g) of the Code, whether the making of such an order unduly impairs the proper functioning of the administration of justice.
Released: January 22, 2024 Justice S.N. Latimer
1R v. Metri (18 October 2023), unreported, Crawford J.
