ONTARIO COURT OF JUSTICE DATE: 2021·06·07 NEWMARKET
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
K Z
RULING ON s 714.1 APPLICATION
Application Heard and Ruling: 4 June, 2021 Reasons Delivered: 7 June, 2021
Ms. Nicole Murphy .................................................................................. counsel for the Crown Mr. David Rovan................................................................................ counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. KZ is charged with Sexual Assault s 271 and Uttering Threats s 264.1(1)(a). The trial is scheduled to commence June 14, 2021. The Crown applies under s 714.1 for an order permitting the complainant to testify remotely.
[2] The complainant testified via video conference on the application. Her evidence showed several reasons for the Crown’s request:
- She now resides in British Columbia and return travel to Ontario to testify would involve significant expense.
- She is 6 months pregnant and recently she’s had issues with her pregnancy. She does not think a doctor would permit her to travel.
- She is concerned about travelling while pregnant during the COVID pandemic.
- The impact on the trial would be minimal as she would otherwise likely testify by video at the courthouse pursuant to s 486.2 (2).
[3] The complainant has an appropriate place to participate in court proceedings. She has access to a laptop with good sound and video and there were no issues with her internet connection. She confirmed that she could arrange for privacy while testifying. Both counsel were able to examine the witness effectively on the application. She appeared to fully appreciate the gravity of the court proceeding despite the virtual context.
[4] The Province of Ontario extended the ban on interprovincial travel until June 16, 2021. It may well be extended after that date. That circumstance alone prevents the witness from attending the trial in-person and demonstrates the danger of interprovincial travel during the COVID pandemic. The defence concedes that the circumstances meet the s 714.1 criteria. The defence objects to the use of remote testimony for two reasons:
- The central issue in the case is the credibility of the witness. Where credibility is at issue the defence submits that testimony by videoconference should only be allowed in exceptional and compelling circumstances.
- There are documents and a video that may be shown to the witness in cross-examination and the defence submits that it may not be possible to effectively cross-examine the witness over the Zoom platform.
[5] On June 4, 2021 I granted the application with reasons to follow. These reasons explain why I find that videoconference testimony would be appropriate in this case and why I reject the submission that a special, restrictive test should be applied where the credibility of a witness or complainant is at issue.
The s 714.1 Criteria
[6] Despite the shift to virtual proceedings during the past 14 months of the pandemic, the Criminal Code still starts with the general rule that participation in a trial should be in-person – s 715.21. The purpose of the Criminal Code audio and videoconference provisions is to serve the proper administration of justice, including ensuring fair and efficient proceedings and enhancing access to justice – s 715.22.
[7] The Crown’s evidence on the application engages several s 714.1 criteria. The complainant is the central witness in the case. She now resides in another province and her personal condition does not permit travel. Travel during the global pandemic is otherwise discouraged and at the present time Ontario has banned such travel past the date set for this trial.
[8] The testimony of the complainant on the application showed that she has a suitable location from which to testify and the necessary access to technology. There is no evidence that reception of her testimony in this manner would have any negative impact on the accused’s ability to make full answer and defence. Subject to consideration of the two specific objections below, the Crown has shown that remote testimony via Zoom videoconference would be appropriate.
Assessing Credibility in Virtual Hearings
[9] The defence submits that the circumstances of this case are similar to R v SDL, 2017 NSCA 58, where a sexual assault complainant and his mother moved to Alberta prior to trial. The trial judge permitted remote testimony by videoconference pursuant to s 714.1. The Nova Scotia Court of Appeal found that it was inappropriate to permit remote testimony in that case for several reasons including the fact that the credibility of the young complainant was at issue.
[10] In light of the discretion set out in s 714.1, The Nova Scotia Court of Appeal found that it was appropriate for appellate courts to establish parameters for the use of videoconference technology in addition to the statutory criteria. [1] They held that section 714.1 videoconference orders should only be made in “exceptional circumstances”. Where the credibility of a complainant is at stake, the exceptional circumstances must be even more compelling. The SDL “exceptional and compelling circumstances” test for the testimony of complainants has been applied in Ontario – R v KS, 2020 ONCJ 328. [2] However, courts in this province have generally declined to follow that approach – R v McDougal, 2021 ONSC 1000 at para 3, R v Metcalfe, 2018 ONSC 4925 at para 12.
[11] While I am not bound to follow SDL, I’ve carefully considered that decision. With all due respect, I find I must decline to apply the SDL test for the following reasons:
- The SDL decision considered a prior version of s 714.1 that set out minimal criteria for the order.
- In the subsequent amendments, Parliament expanded the relevant considerations but did not adopt a special, discrete test for witness credibility cases.
- Criminal trial courts have decades of experience in assessing the credibility of complainants and other witnesses who testify by way of video technology. Courts have gained further experience during the COVID pandemic. No special test is required beyond the statutory criteria.
- During the pandemic in a province where lockdown stay-at-home orders are in place and courtrooms have added restrictions for public health and safety, the use of videoconference technology can provide a better opportunity to assess credibility than in-person testimony.
- Videoconference technology shows and records both the demeanour and the responses of a witness. When evaluating concerns about the ability to fully assess demeanor, it’s important to remember the limited role demeanour plays in assessing witness credibility.
- In my view, courts should decline to add a special, highly restrictive test that will be often be applied in matters of alleged sexual assault such as SDL and this case, that would limit access to videoconference technology where an application otherwise meets the statutory criteria.
[12] In SDL, the Nova Scotia Court of Appeal considered section 714.1 as that section was in force from January 1, 2013 to September 18, 2019. The discretion to permit testimony by “technology” was then based on only three criteria: witness location and circumstances, costs of travel and the nature of the witness’ evidence. Bill C-75 [3] brought significant changes to that section, adding four further criteria that address a number of the concerns cited in SDL. The amendments also added s 714.41 which permits and instructs a trial court to cease the use of videoconference testimony if there are technological or other issues that make it impracticable or inappropriate to continue in that manner. That was a significant concern in SDL – that the trial continued despite technological problems.
[13] The C-75 amendments significantly expand the ability of criminal courts to use virtual proceedings for all participants. The timing was fortuitous as six months after the amendments took effect a global pandemic required courts in this province to pivot to the use of videoconference and audioconference technology in order to continue operations. Parliament has provided additional criteria to guide the exercise of discretion in s 714.1, but it did not adopt a special test for complainants’ evidence.
[14] Even prior to the pandemic, criminal trial courts had experience in assessing the credibility of witnesses testifying remotely via video. In 1988, Bill C-15 [4] made several important changes to the laws regarding sexual offences including provision for remote closed-circuit testimony as an alternative to in-person appearance or testimony behind a screen. Since that time, judges have heard testimony by video pursuant to s 486.2. Almost all of those witnesses have testified in cases involving allegations of sexual assault or domestic violence where the credibility of the witness was the central issue.
[15] The Supreme Court has acknowledged that the ability to see a witness’s face is an important feature of a fair trial – R v NS, 2012 SCC 72 at para 21. The court has upheld the use of testimonial aids such as testifying behind a screen or via videoconference, relying on the fact that they do not prevent the accused from seeing the witness: NS at para 23, R v JZS 2010 SCC 1, R v Levogiannis, [1993] SCJ No 70. Even in cases where credibility is the central issue, the right to make full answer and defence does not require the accused to be in the same physical space or courtroom as a witness or complainant – R v Robinson, 2021 ONSC 2447 at para 15.
[16] Virtual trials in this province are being held on the Zoom platform. Zoom has proved to be an intimate medium, allowing not only a full view of the witness, but often a closer view than would be available in a courtroom. When testimony is heard by way of videoconference, all of the elements essential to the “right of confrontation” [5] are preserved: the presence of all participants in the hearing, testimony under oath or affirmation, cross-examination of the witness and a full opportunity to hear the answers of the witness and observe their demeanour. [6]
[17] During the pandemic, any in-court witness wears a face mask throughout their testimony, enclosed in a plexiglass booth, and separated from the judge and other participants by further plexiglass. We’ve learned that witnesses can often be seen and heard better on a videoconference than in-person under those conditions.
[18] The credibility of witnesses is almost always a factor in criminal trials. “It would be an error to approach the analysis from the perspective that the mere existence of credibility as an issue alters the nature of the analysis” – R v Mapp-Farouk, 2020 ONSC 5040 at paras 23-24. The argument that testimony via videoconference results in a somewhat reduced ability to assess demeanour and therefore assess the credibility of a witness doesn’t appear to be true in light of the extensive experience courts have had with virtual trials during the pandemic, and in my view doesn’t accord with the modern approach to the assessment of witness credibility.
[19] In R v Levert, [2001] OJ No 3907 (CA), Justice Rosenberg noted at paragraph 27 that, “Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions …”. The Court of Appeal later described evidence of out-of-court demeanour as “highly suspect and easily misinterpreted” in R v Bennett, [2003] OJ No 3810 (CA) at para 118. The same observations have been applied to the use of demeanour in assessing in-court testimony. In R v Rhayel, 2015 ONCA 377, the Court of Appeal held at para 85, “It is now acknowledged that demeanor is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.” In Rhayel, at paragraph 89 the court instructed trial judges to make findings of credibility without undue reliance on such fallible considerations as demeanour evidence.
[20] Even assuming that some things are lost in a virtual courtroom as compared to an in-person trial, the evidence that is important to credibility is typically found in the questions put to the witness and their answers, all of which is captured and recorded in either format. The demeanour of the witness is on close display on video, but even if there is an aspect of demeanour that can’t be seen on video, it’s not plain that it reasonably could have much relevance to the issue of credibility, much less require a specific, restrictive test to preserve.
[21] Finally, a review of the cases on this issue show that many of these applications involve complainants in cases involving allegations of sexual assault or domestic violence. SDL was a sexual assault case as is this one. Section 715.22 requires that all of the virtual court provisions be interpreted in a manner that ensures fair hearings and enhances, not restricts access to justice for all participants. I find that adding an “exceptional and compelling circumstances” test to cases involving complainant credibility is unnecessary and risks creating a barrier to justice for complainants in these cases.
Trial Fairness – The Nature of the Evidence
[22] It’s essential to a fair hearing that both parties be able to effectively present evidence. There will be cases that are not be suitable for virtual proceedings given the nature of the evidence and its presentation.
[23] In this case the defence is concerned about the effective use of documents and video during cross-examination. Discussion during submissions showed that the evidence was or could be in electronic format. The review of such evidence using the Zoom “Share” function has become routine in criminal trials, but it’s still early days. Ms. Murphy kindly offered to do a Zoom practice session with Mr. Rovan prior to the trial to ensure that both parties are comfortable with presenting evidence on that platform. I commend the Crown for her offer as it’s in the best tradition of the bar and assists the administration of justice by ensuring both parties are ready for trial. Both parties agreed to work together to resolve this issue.
Conclusion
[24] Trial fairness requires a just and effective process for the defendant, but it also includes the right of the complainant and the community to have sexual assault complaints determined on the merits and not dismissed or delayed simply because a witness is unable to travel. Parliament amended s 714.1 specifically for cases like this one. The current criteria in that section are sufficient to address trial fairness concerns even in cases where the credibility of a witness is at issue.
[25] I find the Crown has proved that it is necessary and appropriate to have the complainant testify at trial by Zoom videoconference. The trial court of course retains the power to cease or vary the use of the technology at any time if it is no longer appropriate – s 714.41.
Reasons Delivered: 7 June, 2021.
Justice Joseph F. Kenkel
[1] R v SDL, 2017 NSCA 58 at para 8.
[2] Other courts have adopted a similar, cautious approach to cases involving witness credibility – R v DP, 2013 ONSC 2901.
[3] Bill C-75, An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts … SC 2019, c 25 (Royal Assent 21 June, 2019)
[5] Confrontation – The right that an accused person should be present when witnesses are called against them. Not an absolute right – R v Levogiannis, [1993] SCJ No 70 at para 20.
[6] See: R v Levogiannis, [1993] SCJ No 70 at para 31.
