Court Information

Ontario Court of Justice

Date: 2017-07-11

Court File No.: 3111 998 17 2949

Parties

Between:

Her Majesty the Queen

— AND —

Freddy Mawick

Before the Court

Justice G.P. Renwick

Section 714.1 Criminal Code Application

Heard on: 10 July 2017

Reasons for Judgment released on: 11 July 2017

Counsel

M. Morris — counsel for the Crown

T. Kent — counsel for the defendant, Freddy Mawick

Application for Video Link Evidence

Reasons for Decision

RENWICK J.:

Introduction

[1] By way of a pre-trial application brought in advance of the trial, the prosecution applies to adduce evidence of a witness pursuant to the provisions of s. 714.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 ("Criminal Code"). The defendant opposes the application.

[2] The basis for the application is the location of the witness and the purported inconvenience and cost to require the witness to attend to testify in person. The witness resides in Saanich, British Columbia. The trial is set to begin before me on 21 August 2017, for 4 days, in Brampton, Ontario. If the application fails, the prosecution will be required to purchase airfare and lodgings for at least one night to have the witness attend this jurisdiction.

[3] There was no evidence lead on the Application. During submissions, I was not given any information about the personal circumstances of the prospective witness, the costs to bring the witness to Ontario, the technology and other safeguards that will be used to permit the witness to virtually appear in this court, or any other factors that might otherwise assist in the determination of this Application.

[4] On 16 February 2017 a judicial pre-trial appears to have been conducted by Madame Justice K. McLeod, of this Court. The Trial Time Estimate Form indicates the prosecution's intention to lead the evidence of four civilian witnesses in addition to police witnesses, and a "video." The form is silent with respect to the possibility of this Application.

[5] The Application is opposed on two grounds: the remedy sought is not clearly defined in terms of the practical result; and there is a constitutional dimension to granting the application which has an effect upon the defendant's right to make full answer and defence.

Analysis

[6] The decimal subsections of section 714 of the Criminal Code provide for alternative technological mechanisms for the reception of witness testimony provided by witnesses who testify outside of the courtroom. Section 714.1 may be used to accommodate defence or prosecution witnesses where "it would be appropriate in all the circumstances, including

a) the location and personal circumstances of the witness;

b) the costs that would be incurred if the witness had to be physically present; and

c) the nature of the witness' anticipated evidence."

[7] The defendant has opposed the application primarily on the grounds that there is an insufficiency of evidence to assess the manner in which the virtual attendance of the witness will be accommodated. The defendant questions the location of the witness while testifying (will the witness be in a courtroom, or a police station, or another location altogether), and who will be present in the room with the witness. I would add to these concerns that the allegations (fraud and other charges) may require a fair number of exhibits to be put to the witness and there has been no suggestion by the Applicant of the manner in which practicalities such as this will be addressed. The preservation of court decorum, the integrity of the witness' evidence, and practical logistics are very real concerns that ought to be addressed in this type of application.

[8] I have not been provided with any binding authority, nor, have I found any cases that direct how I must exercise my discretion in the determination of this Application.

[9] In R. v. Burden, [2017] O.J. No. 940 (O.C.J.), Mr. Justice Wakefield of this Court dismissed a similar application. Justice Wakefield was referred to R. v. Turner, [2002] B.C.J. No. 2576 (B.C.S.C.), which concerned a similar application under s. 714.2 of the Criminal Code to permit the virtual appearance of a witness in the United States. Justice Wakefield also considered R. v. D.P., [2013] O.J. No. 2232 (S.C.J.), a decision of Mr. Justice Ellies, who also dismissed a similar pre-trial application.

[10] In Burden, the complainant, who resided in Nova Scotia, was the sole prosecution witness. The prosecution Applicant in that case also failed to adduce any evidence respecting the personal circumstances of the witness and the costs associated with bringing the witness to Ontario. Justice Wakefield considered the value of virtual presence and the use of technology in addition to the value of hearing and observing the demeanor of witnesses who testify in court. In the end, in light of the lack of an evidentiary foundation to justify resort to s. 714.1 of the Criminal Code, Justice Wakefield dismissed the application to permit the witness to testify by video link.

[11] Like Justice Wakefield, I am being asked to infer witness inconvenience and I have not been provided with any information respecting the technology to be used. Several questions remain unanswered: what is the resolution of the video link; how large will be the screen used to provide the virtual presence of the witness; how does the Crown anticipate showing documents to the witness; who will be present in the room with the witness; what inconvenience will there be to the witness to attend the trial in Ontario.

[12] Recently, Madame Justice Sheard considered a similar application made during a jury trial in Ottawa: see R. v. Belem, 2017 ONSC 2213, [2017] O.J. No. 1882 (S.C.J.). In that case, the prosecution called two witnesses (one of which was a psychiatrist) to testify about the cost, inconvenience, and medical condition of the witness upon whose behalf the application was brought. The evidence revealed that the witness had fears for his physical safety, there were concerns for his mental well-being and physical condition, and there was evidence adduced respecting the costs of travel and accommodations to bring the witness from British Columbia to Ontario. That case also considered the defence concession to permit the witness to testify outside the courtroom using closed-circuit television, if counsel could be in the same room with the witness.

[13] Madame Justice Sheard considered similar applications in R. v. Leblanc, 2014 NSPC 116, 361 N.S.R. (2d) 1, and R. v. Young, 2000 SKQB 419, 201 Sask.R. 158 and referred to eight factors identified by the court in Young, in addition to the statutory factors found in s. 714.1. Although Belem is not binding, I find the analysis to be persuasive and complete. As did Her Honour Madame Justice Sheard, I will also consider the eight factors suggested by Mr. Justice Wright in Young. They are:

(1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross-examine that witness?

(2) the nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect to exhibits and the like and other matters that would not attract any particular objection on the part of the accused's counsel;

(3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom;

(4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance;

(5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, personal life and the like;

(6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion;

(7) the cost to the state of having the witness attend in person; and

(8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial.[1]

[14] In terms of the first factor, there will be some impact upon the defendant's ability to cross-examine the witness. As anyone who has ever held a meeting by video link knows, the better the technology, the better the experience. Here, it is difficult to assess what if any impact video link technology will have in terms of capturing and displaying the demeanor of the witness in real-time. As well, it is difficult to know whether this will have any impact on counsel's ability to cross-examine the witness.

[15] Based upon the submissions, I would not think that the credibility of the prospective virtual witness will be vigorously contested. The proposed witness will likely be asked by the prosecution whether or not he knows the defendant and whether or not he applied for credit cards using an Ontario address. In some cases, evidence of this sort is adduced by way of an affidavit.[2] However, I recognize that there may be things about this witness, or this proposed evidence, or defences that may arise during this trial that could be affected by permitting virtual attendance of this witness.

[16] I have no evidence about the integrity of the examination site or safeguards that might be available to reduce the risks of outside influences upon the witness while testifying. In Belem, the court was assured that the prospective witness would testify from a Nanaimo courtroom with the assistance of qualified local court staff and/or the local RCMP. I have no information with respect to this factor, which might allay the defendant's expressed concerns.

[17] The fourth, fifth, and sixth factors are similar to the statutory consideration found within s. 714.1 (a). Again, there is no evidence respecting what, if any, effect requiring the witness to attend the trial in Ontario might have upon the witness.

[18] I can infer that the costs of travel from British Columbia to Ontario are not insignificant, but again, there is a dearth of evidence to conclude that the costs are prohibitive or otherwise not commensurate with the value of the proposed evidence. It would seem that the proposed evidence is likely necessary to prove the fraud, unauthorized use, and personation counts. And while it may be convenient and likely economical to the prosecution to rely upon video link technology, I have not been given any information about the costs to bring the witness, whether or not the witness may suffer some additional personal costs that would not be covered by the prosecution (for example, child-care related expenses), any costs or savings associated with the use of video technology, or any other similar considerations.

[19] The eighth factor is not applicable in this case. The prosecution may resort to the provisions of s. 699 through 702 of the Criminal Code to require the attendance of the witness to appear in person in Ontario.

Conclusion

[20] Section 714.1 of the Criminal Code is a valuable mechanism to reduce the expenses associated with bringing out of town witnesses to testify in person, where technology exists to accommodate the virtual appearance of the witness during a trial. The section requires a balancing of factors to reduce cost and witness inconvenience in appropriate cases. The section is not mandatory, nor applicable merely because it exists. That said, it is not a high threshold to establish the utility and applicability of the section in appropriate cases.

[21] In consideration of the submissions of counsel and having reviewed the cases referred to above, I am not persuaded that it is appropriate in these circumstances to permit the prosecution to adduce the evidence of a witness who resides in Saanich, British Columbia to testify using video link technology pursuant to s. 714.1 of the Criminal Code. Consequently, the application fails. At this point, there is an insufficiency of evidence to justify resort to the virtual appearance provision in the matter at bar.

Released: 11 July 2017

Justice G.P. Renwick

Footnotes

[1] 2000 SKQB 419, [2000] S.J. No. 590 (Q.B.), at para. 8.

[2] I do not mention this fact as a criticism of the defendant's opposition to this Application. The defendant is entitled to oppose procedural shortcuts that may convenience the prosecution or its witnesses, and I do not draw any negative inferences by the defendant's desire to have the prosecution adduce its evidence in the usual manner.