Court File and Parties

Court File No.: Sault Ste. Marie 18-1915 Date: 2020-07-15 Ontario Court of Justice

Between: Her Majesty the Queen — and — Thomas Molland

Before: Justice J.P. Condon

Heard: July 7, 2020

Reasons for Judgment Released: July 15, 2020

Counsel:

Marie-Ève Talbot, counsel for the Crown
Eric McCooeye, counsel for the accused Thomas Molland

CONDON J.:

Part One: Introduction

[1] Thomas Molland is charged as follows:

On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did, while being bound by a probation order made by Ontario Court of Justice on 07 January 2019, fail without reasonable excuse to comply with such order, to wit: Keep the peace and be of good behaviour contrary to Section 733.1(1) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did, while being bound by a probation order made by Ontario Court of Justice on 07 January 2019, fail without reasonable excuse to comply with such order, to wit: Remain away from the Neighbourhood Resource Centre at 138 Gore St., Sault Ste. Marie, Ont., contrary to Section 733.1(1) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did assault Chris Gibson, a peace officer in uniform patrol capacity engaged in the execution of his duty contrary to Section 270(1)(a) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did assault Mark Virtanen, a peace officer in uniform patrol capacity engaged in the execution of his duty contrary to Section 270(1)(a) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did assault Brian Greco, a peace officer in uniform patrol capacity engaged in the execution of his duty contrary to Section 270(1)(a) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, wilfully did attempt to obstruct the course of justice in a judicial proceeding by stepping in front of the officer screaming and swearing causing the investigation to seize contrary to Section 139(1) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did by word of mouth knowingly utter a threat to cause bodily harm to Brian Greco contrary to Section 264.1(1)(a) of the Criminal Code.
On or about the 1st day of August in the year 2019 at the City of Sault Ste. Marie in the said Region, did resist Brian Greco a Peace Officer to wit: a Police Constable for the City of Sault Ste. Marie engaged in the execution of his duty by pushing grabbing and pulling in the execution of his duty contrary to Section 129(a) of the Criminal Code.

[2] The Crown has brought an application seeking an order, pursuant to section 714.1 of the Criminal Code, to permit Constables Virtanen, Gibson and Greco, of the Sault Ste. Marie Police Service, to testify remotely, from the Sault Ste. Marie police station, by way of video-link technology.

[3] The application was heard on July 7, 2020 and the decision was reserved.

Part Two – Grounds for the Application

[4] The grounds advanced in support of the application are brief and are set out in full as follows:

On March 17, 2020, the Ontario Government announced a state of emergency. As a result of the COVID-19 pandemic, the Ontario Court of Justice established procedures to reduce the number of people who attend court in-person for criminal and family matters. All non-urgent matters were adjourned.
On June 17, 2020, the Ontario Court of Justice announced the resumption of criminal trials and preliminary hearings in a notice to the profession and public. In that notice, the Ontario Court of Justice indicated that select courthouses were designated for Phase One of re-opening, including Sault Ste. Marie, commencing July 6, 2020.
While court operations are expanding as part of Phase One, the number of courtrooms that are open, and the number of people who can attend inside the courtroom or courthouse, remain restricted in accordance with health and safety guidelines. In light of the restrictions on courthouse and courtroom attendances, and in light of the ongoing public health guidelines and other restrictions, it is essential that all parties take reasonable steps to ensure matters scheduled for a trial or preliminary inquiry are ready to proceed.
Varpio, J, in R. v. Cunningham, 2020 ONSC 2727 at para. 19, recently found that the Court could take judicial notice of the following factors with respect to COVID-19:
1. COVID-19 is spread by person-to-person contact either directly or via indirect transmission.
2. Individuals may be able to spread the virus while they are either pre-symptomatic or are asymptomatic.
3. The virus can be lethal.
4. The rates of mortality appear to be pronounced among the aged as well as among those who have certain underlying conditions such as respiratory ailments. The mortality rate among those who do not fall within these categories is not nearly as high; and
5. Social distancing has been utilized to lessen the rate of infection in the population and, as such, the failure to adhere to social distancing will generally increase the rate of infection.
Mr. Molland's trial is scheduled to commence on July 20, 2020 in the Ontario Court of Justice sitting in Sault Ste. Marie, Ontario.
The Crown intends to call 3 witnesses as part of the case for the Crown. Constables Virtanen, Gibson and Greco are all members of the Sault Ste. Marie Police Service. They are essential Crown witnesses with material evidence to give at trial. Each officer was involved in the investigation, arrest, and search of the accused incident to arrest.
The Sault Ste. Marie Police Services are prepared to have their officers testify from the Sault Ste. Marie Police Station using whichever media platform/program the court designates as appropriate for remote testimony. Video conferencing platforms offer a close-up view of the witness, with a clear sight line to the face.
Police officers are front line workers and arguably at a greater risk of acquiring and transmitting COVID-19. Having each of the above named officers testify remotely ensures that they are not physically present in the courthouse for the purposes of giving evidence thereby reducing the safety risk to the Court, Crown, defence and Mr. Molland.

Part Three – The Events in Issue

[5] The application was not accompanied by a synopsis of the allegations. However, during the hearing of the application, counsel for Mr. Molland provided a summary to assist the court and to provide information relevant to the position of Mr. Molland in relation to the application.

[6] Before going further, it should be noted that the hearing of the application was conducted with both counsel attending court by telephone. Mr. Molland was not present either in person or by telephone. The opportunity for him to do so was available and his counsel sought to proceed without Mr. Molland being present either in person or remotely.

[7] The court was told the following:

a) On the date of the events, Mr. Molland was in the area of Gore Street and Albert Street, in the city of Sault Ste. Marie.

b) Mr. Molland saw someone who appeared to have been sprayed with a mace-like substance and who was in distress.

c) Mr. Molland asked the police to assist the person in distress.

d) Mr. Molland contends that, during the events that followed, he was assaulted by the police. The police officers took the position that they were removing Mr. Molland from the area in order to preserve the scene of the events.

e) In addition to the police officers named in the application, there were civilians who were witnesses to the events in issue. The preliminary expectation is that the Defence will call more than one civilian witness and that Mr. Molland will testify during the trial.

f) The three police officers, who the Crown intends to call as witnesses, are the principle participants in the events. None of them is a witness who is being called to provide some after-the-fact evidence, such as an expert who would be providing post-event analysis.

g) Both the Crown and Defence informed the court that neither side is aware of any video-recording of the events, which would be presented as evidence. Crown counsel does intend to present four photographs as evidence.

Part Four – The COVID-19 Pandemic

[8] The guidance provided in R. v. Cunningham, supra, by Mr. Justice Varpio was of assistance to both counsel during the hearing of the application and is of assistance to this court. I will also supplement that decision with a few pieces of information from the website of the World Health Organization (WHO).

[9] Under the heading 'What is coronavirus?', the WHO sets out the following:

Coronaviruses are a large family of viruses which may cause illness in animals or humans. In humans, several coronaviruses are known to cause respiratory infections ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The most recently discovered coronavirus causes coronavirus disease COVID-19.

[10] Under the heading, "What is COVID-19?", the WHO provides the following information:

COVID-19 is the infectious disease caused by the most recently discovered coronavirus. This new virus and disease were unknown before the outbreak began in Wuhan, China, in December 2019. COVID-19 is now a pandemic affecting many countries globally.

[11] Equally pertinent to the issue at hand, the WHO provides the following answer to the question – "How does COVID-19 spread?":

People can catch COVID-19 from others who have the virus. The disease spreads primarily from person to person through small droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs, sneezes, or speaks. These droplets are relatively heavy, do not travel far and quickly sink to the ground. People can catch COVID-19 if they breathe in these droplets from a person infected with the virus. This is why it is important to stay at least 1 meter away from others. These droplets can land on objects and surfaces around the person such as tables, doorknobs and handrails. People can become infected by touching these objects or surfaces, then touching their eyes, nose or mouth. This is why it is important to wash your hands regularly with soap and water or clean with alcohol-based hand rub.

WHO is assessing ongoing research on the ways that COVID-19 is spread and will continue to share updated findings.

[12] In submissions during the hearing of the motion, counsel for Mr. Molland referred to the public information available at the time, which indicated that there was no active cases of COVID-19 in the District of Algoma. On July 9, 2020, the following public service announcement was posted on the website of the Algoma Public Health unit:

PSA: New confirmed case of COVID-19 reported by APH

Thu, Jul 09, 2020

Algoma Public Health is reporting a new COVID-19 case in a resident in the Algoma district.

[13] This announcement is indicative of how the situation involving COVID-19 can change from day to day.

[14] Algoma Public Health (APH) has not provided any specific information as to the location of the case in the District of Algoma. It is noted that, since the outset of the cases in Algoma, APH has not provided specifics about diagnosed persons in order to protect privacy interests. There is no indication that this new case is within the city of Sault Ste. Marie and this Court does not assume that the case is within the city of Sault Ste. Marie for the purpose of ruling on the application.

Part Five – The Law

[15] The section of the Criminal Code upon which the application is based is Section 714.1. That section reads as follows:

Audioconference and videoconference — witness in Canada

714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear personally;

(c) the nature of the witness' anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused's right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

[16] Both Crown and Defence provided numerous cases upon which they relied in their respective submissions. All of those cases have been reviewed. Some of those cases will be cited later in these Reasons. All of the cases will be set out in the Appendix to these Reasons.

Part Six – Positions of the Parties

[17] The positions taken on behalf of the Crown are summarized as follows:

a) Based on the decision of R. v. Cunningham, supra, this court can take judicial notice of the presence of COVID-19 in the world, Canada and the District of Algoma. Furthermore, judicial notice can be taken about the transmission of the coronavirus, it's status as a respiratory ailment, and its effects in relation to both infection and mortality rates. In addition, it is possible for a carrier of the coronavirus to be asymptomatic.

b) The three police officers in relation to whom the application has been brought are front-line workers in the community. As such, they are unable to self-isolate. In addition, the nature of their employment makes the recommended practice of social distancing difficult, if not impossible. There is a greater risk that they could be exposed to the coronavirus. Furthermore, there is a potential that any one of the officers could be a carrier of the coronavirus. If so, having any of the officers attend in person for the trial of this matter creates a risk of transmission to counsel, the accused and court staff present in the courtroom for the trial.

c) The Government of Ontario has adopted measures limiting the number of people entitled to enter both the Sault Ste. Marie courthouse and individual courtrooms therein. The objective of these measures is to allow for social distancing, which appears to be one of the effective measures by which to minimize the person-to-person transmission of the coronavirus. Having the police officers testify from the police station would be consistent with the measure of social distancing. The safety of all participants in the justice system is an objective of these measures and the risk to any of the participants in this proceeding would be mitigated, as least as it relates to these witnesses, by the use of video-link technology.

d) Given that the three police officers are in Sault Ste. Marie, costs associated with having any of those officers attending at the courthouse, as opposed to doing so remotely from the police station, is not a factor for the court to consider in assessing the merits of the application.

e) Each of the officers is a material witness to the Crown's case against Mr. Molland. While it might be argued that, because each of the officers is a material witness, they should be required to attend in person at the trial to provide evidence, the case law supports a broader use of section 714.1 of the Code. In the Belem decision, the accused was alleged to have committed a home invasion robbery and, despite the seriousness of the charge, the complainant was permitted to testify by video-link. In the Strang case, which involved an allegation of sexual assault, the complainant, who was the daughter-in-law of the accused, was permitted to testify by video-link. Thus, these are two examples of cases in which courts have permitted the use of video-link technology even when the nature of the charges are very serious. Section 714.1 does not limit the use of this technology to any specified offences within the Criminal Code.

f) The credibility of most if not all of the witnesses expected to be called in this trial will be in issue. Credibility can still be assessed using video-link technology. The current technology is of sufficient quality that each witness will be clearly heard and clearly visible. The technology will not impair full cross-examination. Plus, the technology will allow for the observation of the physical demeanour of each witness while that witness testifies.

g) The Crown intends to present photographs to one or more of the officers. It is expected that no more than four photographs will be presented. Arrangements can be made for copies of the photographs to be with each witness at the police station. Thus, the use of video-link technology would not be an obstacle to the presentation of the photographs to the witnesses.

h) While each officer would be testifying from the police station, each officer would be in a room removed from anything else occurring at the station and particularly, while testifying, removed from the other officers who will be witnesses. While the officers would not be in the courtroom and would not experience whatever psychological effect the physical courtroom has upon any witness, the officers are "professional witnesses" who have knowledge of the court process and do understand their duty to tell the truth.

i) Mr. Molland has the right to a fair and public hearing. The proposed arrangement would not compromise that right. The set-up would allow Mr. Molland to have a clear view of each witness. The use of large television screens might even provide a better view of the witness than would occur by having the witness in the courtroom in person. The set-up of the technology will not compromise the ability of counsel for Mr. Molland to cross-examine any of the witnesses. Furthermore, as the British Columbia Court Of Appeal found in the J.Z.S. decision, in Canada "an accused has no constitutional right to a face-to-face "confrontation" with the complainant" (para. 41). Thus, the court has the discretion to allow a witness to testify by video-link. In this case, the use of the video-link technology will not compromise or impair Mr. Molland's right to make full answer and defence in a fair and public hearing.

[18] The positions taken by Mr. Molland are summarized as follows:

a) The technology should not be accepted as the sole solution for mitigating risks in criminal court proceedings while dealing with the coronavirus pandemic in Ontario or Sault Ste. Marie. Counsel for Mr. Molland was in the Superior Court of Justice at Sault Ste. Marie the day before the hearing of this motion when the technology did not work well and caused the presiding judge to adopt an alternate strategy.

b) The provisions for the use of video-link technology have been in the Criminal Code for many years. This is not a situation where there has been a breakthrough with new and improved technology. Despite the existence of the legislation, the technology has not been used frequently because of deficiencies and challenges associated with it. It has not been as good as the face-to-face interaction of a witness and counsel, particularly in relation to the cross-examination of a witness. The face-to face interaction between a witness and counsel is an essential component to the assessment of the credibility of a witness. This is particularly relevant in this case since the credibility of most, if not all, of the witnesses will be central to the case.

c) When Parliament created this section, the use of video-link technology was not made the automatic or default position. Parliament created a number of specific factors that must be considered before video-link technology is used. The general principles regarding the value of face-to-face interaction with a witness were not changed by this amendment to the Criminal Code and those principles have not changed since this amendment was created.

d) The nature of this case is such that it involves the direct verbal and physical interaction between each of the officers who will be called by the Crown and Mr. Molland. The officers and Mr. Molland were face-to-face at the time of the events in issue. To allow the officers to testify by video-link as opposed to being face-to-face with Mr. Molland in a courtroom creates a perception of unfairness. That perception would be magnified further if the officers were permitted to testify from the police station. This is a location that lacks both the aura and neutrality of the courtroom.

e) The case law provided by the Crown in support of its position contains particular circumstances for the particular witnesses in those cases. None of the cases resembles the circumstances in the case before the court.

f) While an order can be made excluding witnesses from the courtroom, the officers testifying would be sharing the same room and the same general space at the Sault Ste. Marie Police Service station. This undermines the perception of justice being done. It also undermines the perception that the trial is being conducted by way of a "public hearing".

g) The guidelines created by the Government of Ontario contain screening procedures intended to mitigate the likelihood of transmission of the coronavirus in the courthouse or even in the courtroom setting. When the lack of active cases of the coronavirus in the District of Algoma is also considered, then the likelihood of transmission of the virus is minimal. The court can take judicial notice of both the precautions being taken in the courthouse and the number of COVID-19 cases in the Algoma district.

h) While Crown counsel has asserted that the charges against Mr. Molland are not "serious", it is unlikely that, in the event of a conviction, Crown counsel would also say that Mr. Molland's interactions with the police were not "serious".

i) While the value of the demeanour of the witness can be overplayed, it is still a factor to be considered in the assessment of the evidence of that witness. In order to assess demeanour, it is helpful or, at times, even necessary to see the whole body of the witness in order to see and access the body language.

j) In Regina v. Chapple, the British Columbia Supreme Court held that in-person evidence should be the process used unless there are valid reasons to justify the use of video-link technology. Technology is not perfect and has its challenges. Given the location of the three officers in Sault Ste. Marie, their in-person attendances and testimony should be required. The Crown has not met the criteria required to grant the order sought in the application.

[19] Crown counsel provided the following brief responses to the positions advanced on behalf of Mr. Molland:

a) The level of exposure of police officers to persons within the community is significantly higher than that for the general public because the officers cannot exercise social distancing in the way most members of the general public can.

b) The Crown consents to Mr. Molland testifying by way of video-link so that he is not required to be in the courtroom and potentially exposed to the coronavirus.

c) While safeguarding measures are being taken at the Sault Ste. Marie courthouse, the effectiveness of those measures has yet to be determined. Thus, there remains a risk to all in-person participants in the trial process of exposure to the coronavirus.

d) There are a substantial number of offences set out in the Criminal Code that are objectively more serious than the charges Mr. Molland is facing.

e) The court is capable of providing instructions to the officers who are witnesses regarding protocol and expectations in order to require conduct consistent with the fair trial proceedings in a courtroom.

Part Seven – Analysis

[20] Two observations are made about the history of Section 714.1 of the Criminal Code. The first version of this section, which allowed testimony by video-link, was created in 1999. The current version, which applies to the application at hand, was created in 2019. Having noted this, it must also be noted that the case law provided by counsel assists this court in the interpretation and application of the current version of the section in its current state.

[21] Section 714.1 provides a list of factors to consider in assessing an application such as the one for the court.

The location and personal circumstances of the witness

[22] In a number of the cases provided, particularly by Crown counsel, witnesses have been substantial distances away from the location of the trial. For example:

a) In R. v. Lucas-Johnson, the court proceeding was in Toronto while the youthful witness was in Halifax.

b) In R. v. Denham, the court proceeding was in Alberta and the witness, a forensic toxicologist, worked in a laboratory in Winnipeg.

c) In R. v. Morin, the expert witness, a doctor, lived in Toronto while the proceeding was in Edmonton. In addition, the doctor had personal circumstances that caused him to want to remain in Toronto.

[23] The location of the witnesses, who are the subject of the application, is not a factor in this case. Each of the officers is a member of the Sault Ste. Marie Police Service and it is proposed that each of the officers testify from the police station, a location which is approximately four kilometres away from the Sault Ste. Marie courthouse. There is no inconvenience to the officers to attend in person for the trial.

[24] The circumstances of the officers does not support the application of the Crown. There are cases in which the circumstances of the witness favour an order that the witness be permitted to testify by video-link, for example:

a) In R. v. Lucas-Johnson, the youthful witness was expected to provide evidence that she was a victim of human trafficking involving the accused. The idea of returning to Toronto and being in the same courtroom as the accused was expected to have an adverse effect upon the witness.

b) In R. v. Husbands, the witness had been in a relationship with the accused and had received communications from him since the end of the first trial of the matter. The witness was fearful of the accused and reluctant to attend in person for the re-trial. In addition, there were childcare issues for the witness.

[25] In the case at hand, no evidence was presented to indicate that any of the three officers is fearful of the accused or has any personal circumstances preventing any of the officers from attending the courtroom in person.

[26] The one exception to those personal circumstances is COVID-19 and more will be said about that later in these Reasons.

The cost that would be incurred if the witness were to appear personally

[27] Both parties have provided cases where the costs associated with having a witness attend in person have been considered. For example:

a) In R. v. Heynen, a case involving big game hunting operations in the Yukon Territory, the court allowed the use of video-link technology and took the position that "the judiciary has a pressing responsibility to reduce the costs of litigation to both the litigant and the taxpayer" (para. 324).

b) In R. v. Chapple, one of the investigating officers had been transferred from British Columbia to Ottawa. It was estimated that the cost of having the officer returned to British Columbia to provide evidence in person would be approximately $28,000. Regarding that issue, the court said – "Cost savings, in and of themselves, cannot justify such an order without the other factors being considered." (para. 51) The witness was required to attend in person.

[28] Costs are not a factor in the case at hand. If there is any difference between having officers testify from the police station and attending for the trial in person, that difference is so nominal that it does not provide a ground in favour of the application. On that point, it must also be noted that Crown counsel agreed that costs are not a factor to be considered in the case at hand.

The nature of the witnesses' anticipated evidence

[29] Based on the wording of the charges and the overview of the events provided by counsel for Mr. Molland, it is anticipated that the officers and any other witness called in the trial will provide evidence about both verbal and physical conflict between three officers and Mr. Molland.

[30] There is no issue that the officers are material witnesses to the Crown's case and that their evidence will be highly relevant, if not essential, to the Crown's case.

[31] In this regard, it is anticipated that each witness will describe orally certain actions by himself and other persons present during the events in issue.

[32] Will the audio and video technology between the Sault Ste. Marie police station and the courtroom allow those oral descriptions to be properly heard by all in the courtroom? Will that audio and video technology allow the cross-examination of each witness to proceed in a meaningful, effective and thorough manner or would this portion of the trial the impeded in any manner by the technology?

[33] Before answering that question, there is a second subset of questions that also needs to be considered.

[34] Will the audio and video technology between the Sault Ste. Marie police station and the courtroom allow for a full or at least adequate viewing of each officer as he testifies? I posed this question because it should be anticipated that one or more of the witnesses will seek to physically demonstrate what actions that the witness or any other person involved in the events in question took during those events. This court anticipates that both oral evidence and physical demonstrations of actions will be part of the evidence provided support.

[35] These two subsets of questions are difficult to answer because, during the hearing of the application or anticipation of it, no demonstration of the video-link technology between the Sault Ste. Marie police building and the courtroom in the Sault Ste. Marie courthouse to be used for the trial was provided to this court.

[36] At the same time, these questions asked can be answered into more generalized ways. First, a number of proceedings, during the restrictions on the Sault Ste. Marie courthouse due to COVID-19, have been conducted by audio-link with counsel and video-link with the Algoma Treatment and Remand Centre (ATRC). The courtrooms in which I have presided during the modified COVID-19 procedure, are equipped with large screen televisions. There has been no difficulty in seeing the person at the ATRC participating in the judicial proceeding. While there has been some frequency in the overlap of voices in the various participants by audio-link, some additional patience by all participants and direction to those participants has allowed the proceedings to progress in a fair and full manner in accordance with the principles of the administration of justice.

[37] One recent occasion comes to mind during which an accused person appeared before me in the courtroom by video-link from the Sault Ste. Marie police station. I noted that there was no issue with the quality of either the audio or the video connection. The detained person at the Sault Ste. Marie police station could be heard. Equally important, that person was able to clearly hear his counsel and Crown counsel who were participating by telephone/audio-link while also hearing and seeing what was being said and done in the courtroom.

[38] It is also noted that if that same location is used for the witnesses at the Sault Ste. Marie police station then that location and technology provide more than a limited facial view or "head shot" of the witness. This technology would allow a witness to demonstrate physical acts and to be seen and heard clearly while doing so.

[39] It is also noted that the large screen television in the courtroom will allow all those present in the courtroom, including Mr. Molland, to hear and see any witness testifying.

[40] If that audio-video set-up and technology at the Sault Ste. Marie police station is the technology that is being proffered as part of this application, then no difficulty is anticipated with seeing and hearing any of the Crown's proposed witnesses during this trial. Nor is any difficulty anticipated in having those witnesses see or hear what is occurring in the courtroom.

[41] Thus, if that same audio-video set-up and technology is used then no technological, audio or visual difficulty is anticipated in the examination or cross-examination of any of the proposed Crown witnesses.

[42] This court has also been informed that, as part of its case, the Crown proposes to present four photographs to the witnesses. No difficulty is anticipated in having copies of four photographs before witnesses at the remote location to be used in the examination or cross-examination of any of the witnesses. Copies of the photographs can be placed in closed and numbered envelopes in the witness room, so that they can be referred to and opened with directions from the court. As noted earlier, this court has been advised that both counsel are not aware of any other physical evidence, including video recordings, that is expected to be presented to any of the witnesses. Thus, this is not a potential obstacle to having these witnesses testify from the remote location.

[43] There was no indication from Crown counsel of any preliminary intention to have any of the three officers present in the courtroom to hear the evidence of any defence witness, including Mr. Molland. This is noted because, if there was a plan to have an officer come to the courtroom to listen to a defence witness then presence of that officer in the courtroom, under that circumstance, would effectively negate the primary premise for this application, at least as it relates to any officer later sitting in the court room. While this observation is made, it should not be interpreted as a statement that having an officer present in the courtroom under that circumstance is being prohibited by this court.

[44] Accordingly, any decision on this application is subject to the following:

a) Confirmation of the audio-video technology and set-up at the Sault Ste. Marie police station that would be used if the application is granted.

b) The ongoing adequacy of the audio-video technology and set-up at the Sault Ste. Marie police station during its use.

The suitability of the location from where the witnesses will give evidence

[45] Counsel for Mr. Molland has argued that a video room at the Sault Ste. Marie police station lacks the aura and psychological influence of a courtroom. It was also argued that it is harder to supervise the interaction between the officers in this location as opposed to when they would be in the courthouse.

[46] Crown counsel has argued that there is little difference between having the three officers use a common witness room at the courthouse and having the three officers at the police station once they are bound by an order excluding witnesses and appropriate instructions from the court.

[47] During the course of the hearing of the application, this court commented that there is a difference between having the three officers in the courthouse and having them at the police station. In the Sault Ste. Marie courthouse, there is a witness room in which officers sit, sometimes waiting together, pending their respective calls to testify. That room is on the lower level of the courthouse, which is also the level upon which the lawyers' robing rooms are located. Thus, there is the possibility of lawyers walking by the police witness room and that is a possibility which will not occur at the police station. It is also noted that, at the Sault Ste. Marie courthouse, it is common for police witnesses to sit on the public benches outside courtrooms awaiting their respective calls to testify. At that location, the officers are highly visible to other lawyers and any member of the public present.

[48] Having police officers testify from their own police station presents potential challenges both in relation to supervision and the perception of fairness. For years court proceedings in some more remote Northern Ontario locations were held in the same building that housed the local Ontario Provincial Police (OPP) detachment. In more recent years, court proceedings have been moved to more neutral sites such as Legion halls or municipal council chambers. The perception of fairness and neutrality is a fundamental principle in the administration of justice.

[49] Should the practice of allowing police officers to testify from their station or detachment become a common and regular approach? This is not a question that I need to answer in this particular case. The question to be answered is whether the application should be granted and testimony allowed in this case at this time, namely in the midst of the COVID-19 pandemic.

[50] Can any concerns about the location from which the witnesses will testify be adequately addressed? I find that they can be addressed adequately. In that regard at least three steps should be taken. First, the three Crown witnesses should be addressed collectively, pointing out to them that, if they are testifying from a location at the Sault Ste. Marie police station, they should consider that location to be an extension of the courtroom, including all the decorum and protocol associated with the courtroom. Next, there should be an order excluding witnesses and the officers should be collectively informed that, beyond the contents of the order excluding witnesses, any communication between the officers during the course of the trial should not occur in order to preserve the neutrality of the site and the perception of fairness in the trial process. This also means that, just as in a courthouse, the officers must remove themselves to a location that will not allow them to overhear what is being said by the officer who is testifying. Finally, an officer from the Sault Ste. Marie Police Service, who is a supervising officer of the officers giving evidence and who will be at the police station, should be present at the outset to hear the instructions given collectively to the witnesses so that the supervising officer can assist in in being an intermediary between the officers and the court, since there is no paging system like that in the courthouse, that would allow an officer to be called to attend the witness area after the previous officer has finished testifying. This would eliminate the need for any communication between an officer who has completed his evidence and any officer who has yet to testify.

[51] Given that these witnesses are police officers and, by the nature of their employment they have greater familiarity with the criminal justice process, there is an expectation that they would understand this order and these directions more fully than almost any member of the general public. There is also an expectation that these officers, due to the nature of their professional oath, would hold themselves to the highest standard in adhering to these directions and the order excluding witnesses.

[52] This court is satisfied that, under the circumstances, an audio-video room at the Sault Ste. Marie Police Service building can be provided with sufficient suitability to allow this trial to proceed both fairly and with the perception fairness.

The accused's right to a fair and public hearing

[53] There are number of components to a fair and public hearing. One of those components is an appropriate location. That has been addressed immediately above. Another component is the requirement that witnesses can be cross-examined fully and without impairment. As set out earlier above, it appears that if the audio-video technology and set-up at the Sault Ste. Marie police station previously seen by this court is used then a full and unimpaired cross-examination of witnesses can occur. On that point, it is noted that the technology would not only allow witnesses to demonstrate to the court and counsel physical actions involved in the events in question but it would also allow this court and counsel to see more than the face or "head shot" of the witness in order to see and access the body language and demeanour of the witness.

[54] This arrangement will also allow Mr. Molland to hear and see his accusers. In some respects, the largest television screens in the courtroom may even allow Mr. Molland to see the testifying officer more fully than if the officer was present in the courtroom.

[55] The technology also allows for a full audio recording to be made of the proceeding in order to ensure the public nature of the proceeding. It must be noted that if the technology became inadequate then the in-person attendance of the witnesses at the courtroom would be required.

[56] In addition, as set out earlier, steps will be taken to effectively cause the video room at the Sault Ste. Marie police station to be an extension of the courtroom with all the proper decorum and protocol required of it.

[57] In Regina v. J.Z.S., the British Columbia Court of Appeal cited the decision of the Supreme Court of Canada in Regina v. Levogiannis, [1994] 4 S.C.R. 475 on a number of issues, including the following:

33 L'Heureux-Dubé J. then framed the issue in Levogiannis as "simply put, whether a witness's obstructed view of an accused, infringes the rights of such accused under s. 7 or 11(d) of the Charter " (at 485).

34 Section 7 requires a balancing of competing interests. An accused's right to a fair trial, including the right to make full answer and defence, must be balanced against the broader societal interest in having offences prosecuted. L'Heureux-Dubé J. rejected the argument that in order to make full answer and defence an accused must be able to confront his accuser. As was stated by MacDonald J.A. (as he then as), for the court, in R. v. R.(M.E.) (1989), 49 C.C.C. (3d) 475, at 484:

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 person to be present in court, to hear the case against him and to make answer and defence to it.

[58] In the case at hand, none of the police officers would be testifying from behind a screen or any other device that would reduce their visibility to Mr. Molland or any other person in the courtroom.

[59] This court finds that such a clear audio and video link in the public setting of the courtroom would not undermine Mr. Molland's right to a fair and public hearing.

The nature and seriousness of the offence

[60] As noted above, Crown counsel has argued that, within the spectrum of charges set out in the Criminal Code, the charges against Mr. Molland are not as 'objectively' serious as many other charges in the Code. By contrast, counsel for Mr. Molland has expressed scepticism about the Crown's potentially situational definition of "serious".

[61] While counsel for Mr. Molland did not overtly submit that Mr. Molland considers these charges against him to be serious, that perspective is a reasonable inference from the synopsis of the alleged events provided by counsel. From that position, the charges before the court are both 'objectively' and 'subjectively' serious.

[62] Crown counsel has provided a number of cases with various charges in which testimony by video-link has been authorized, for example:

a) In R. v. Lucas-Johnson, the charges against the accused included allegations of human trafficking.

b) In R. v. Husbands, the accused was facing two counts of second-degree murder, five counts of aggravated assault and other charges.

c) In R. v. Belem, the charges against the accused arose out of an alleged home invasion robbery.

d) In R. v. D.R.D., the accused was alleged to have committed a sexual assault against a youthful complainant.

[63] Thus, there are number of examples of serious alleged offences in which testimony by video-link technology have been permitted. Furthermore, section 714.1 does not set out restrictions on the charges or category of charges for which such an order cannot be made.

[64] One measure of the seriousness of any charge is whether an accused person's liberty is at stake. In relation to the issue of accused persons' liberty, it is noted that, in Ontario and, more particularly Sault Ste. Marie, the COVID-19 pandemic has caused bail hearings to be conducted by technology. In some respects, it has been a continuation of the Weekend and Statutory Hearings (W.A.S.H.) court that have occurred for many years. Those hearing are conducted fairly, fully and effectively with the use of such technology. A bail hearing is a proceeding that has the liberty of the accused as its most essential issue.

[65] As for the nature of the charges, as noted earlier, it is anticipated that evidence from some if not all witnesses could involve a physical demonstration of the actions by one or more persons involved in the events in question. Accordingly, it may be necessary to have more than a facial view or "head shot" of the witness. It appears that the video-link set-up at the Sault Ste. Marie police station will allow this to occur. It is clear that the televisions in the courtrooms of the Sault Ste. Marie courthouse will allow such images to be received. If this is not the case, then it would be necessary to revisit any decision regarding the use of this technology.

Any potential prejudice to the parties caused by the fact that the witness would not be seen by them

[66] As noted earlier in these Reasons, in more than one location, it appears that the video-link set-up at the Sault Ste. Marie police station will accommodate the potential needs of the court and all parties to hear and see the anticipated evidence of the three police officers, who are the subject of the application, fully and clearly. The technological resources in the courtrooms of the Sault Ste. Marie courthouse will allow this to occur. Thus, I find that the technology will not create any potential prejudice to Mr. Molland.

[67] As for any potential perceived prejudice arising from the officers being permitted to testify from their own police station, this court is satisfied that preliminary instructions can be provided to the officers in order to cause the video room at the police station to take on the aura and decorum of being an extension of the courtroom in which this trial will be conducted. This will negate any potential perceived prejudice by Mr. Molland.

Other factors

[68] The additional factor involved in this application is the COVID-19 pandemic. The Government of Ontario and the Chief Justices of the Courts of Ontario have worked to provide guidelines for the reopening of the courts in a manner that is safe to all participants in the operation of courthouses and courtrooms. That includes safety for court staffs, counsel, accused persons, witnesses, courthouse security personnel, courthouse cleaning personnel and judicial officers.

[69] The Government of Ontario has recommended that the following actions be taken to help stop the spread of COVID-19:

Stay home.
Practise physical distancing – stay 2 metres away from others in public.
Wash your hands with soap and water thoroughly and often.
Use a face covering (non-medical mask such as a cloth mask) to reduce the risk of transmission of COVID-19 when physical distancing and keeping two-metres distance from others may be challenging or not possible.
Create a social circle – safely expand the number of people you can come in close contact with.

[70] Preventative steps have been taken in the courtrooms to be used with the reopening of the courts to the public. Those steps include the installation of plexiglass around the areas to be occupied by court staff, witnesses, counsel and judicial officers. In the Sault Ste. Marie courthouse, dozens of hand-sanitizing stations have been installed in the public areas. Additional cleaning staff are being employed. Personal protective equipment (PPE) has also been provided to court staff and judicial officers. All of these actions are intended to mitigate the risk of the transmission of the coronavirus to anyone attending at courthouses, including the Sault Ste. Marie courthouse.

[71] However, none of the steps allows anyone entering or working at a courthouse to maintain a preventive social circle. This is even more the case for police officers. They are front-line workers and the nature of their employment causes than to be in close proximity if not physical contact with multiple members of the community. The nature of the work of front-line police officers means that they are unable to maintain a preventive social circle. Without that preventive social circle, there is an increased risk that front-line officers might be in close proximity or physical contact persons who are infected with the coronavirus, including those who are asymptomatic.

[72] Earlier in these Reasons, information from the WHO about the means by which COVID-19 is spread has been set out. What is also to be noted, and about which this Court takes judicial notice, is that the scientific knowledge about COVID-19 remains incomplete and continues to evolve.

[73] The website for the WHO also contains the following information under the heading – What are the other ways in which the COVID-19 virus could be transmitted?

People with the virus in their noses and throats may leave infected droplets on objects and surfaces (called fomites) when they sneeze, cough on, or touch surfaces, such as tables, doorknobs and handrails. Other people may become infected by touching these objects or surfaces, then touching their eyes, noses or mouths before cleaning their hands.

This is why it is essential to thoroughly clean hands regularly with soap and water or an alcohol-based hand rub product, and to clean surfaces regularly.

[74] In addition, the WHO website provides the following information under the heading – What do we know about aerosol transmission?

Some medical procedures can produce very small droplets (called aerosolized droplet nuclei or aerosols) that are able to stay suspended in the air for longer periods of time. When such medical procedures are conducted on people infected with COVID-19 in health facilities, these aerosols can contain the COVID-19 virus. These aerosols may potentially be inhaled by others if they are not wearing appropriate personal protective equipment. Therefore, it is essential that all health workers performing these medical procedures take specific airborne protection measures, including using appropriate personal protective equipment. Visitors should not be permitted in areas where such medical procedures are being performed.

There have been reported outbreaks of COVID-19 in some closed settings, such as restaurants, nightclubs, places of worship or places of work where people may be shouting, talking, or singing. In these outbreaks, aerosol transmission, particularly in these indoor locations where there are crowded and inadequately ventilated spaces where infected persons spend long periods of time with others, cannot be ruled out. More studies are urgently needed to investigate such instances and assess their significance for transmission of COVID-19.

[75] Thus, there is much that is unknown and much still to be learned about COVID-19.

[76] What is known is that courtrooms, including those at the Sault Ste. Marie courthouse, were not designed with COVID-19 or other such pandemics in mind. Court clerks and court reporters are positioned commonly within a few feet of any witness. The dais for judicial officers is also generally in close proximity to the location of a witness in the courtroom in order to facilitate the in-person hearing and seeing of a witness.

[77] In the case of the officers who are the subjects of the application, there is a risk that any one of them has been exposed to the coronavirus in the Sault Ste. Marie community. That risk is low, given the ongoing limited number of coronavirus cases in the Algoma district. Low risk and no risk are not the same. It cannot be ignored by this court that COVID-19 is a potentially deadly virus. What is to be gained by potentially exposing Mr. Molland, defence witnesses, counsel, court staff, others working in the Sault Ste. Marie courthouse, including judicial officers, by having any of the three police officers, who are the subject of the application, attend at the courthouse to provide evidence when a suitable technological alternative, which does not impair or compromise Mr. Molland's right to a fair trial, including the opportunity to make full answer and defence, is readily available? I find that there is no meaningful benefit to be gained under these particular circumstances while, at the same time, there are potential adverse effects from having these officers testify in person.

[78] Should this format for the testimony of police officers be the normal and common format going forward? This is not a question that needs to be answered in this proceeding. Nor was it the subject of submissions by the counsel. It is a question that might never need to be answered.

Part Eight – Conclusion

[79] For the reasons set out above, and subject to the qualifications set out above, this court grants the application brought by the Crown and orders that, pursuant to section 714.1 of the Criminal Code, Constables Virtanen, Gibson and Greco are permitted to testify in this trial from a suitable location at the Sault Ste. Marie police station.

[80] Crown counsel is instructed to provide a copy of these Reasons to the Chief of the Sault Ste. Marie Police Service to ensure that all of the conditions and requirements, such as, but not only, the presence of a supervising officer for Constables Virtanen, Gibson and Greco is available at the outset of the trial to receive instructions from the Court, have been addressed prior to the commencement of the trial of these charges.

R. v. Molland, 2020 ONCJ 322

Case Summary