ONTARIO COURT OF JUSTICE

DATE: 2021 02 02 COURT FILE No.: Ottawa 19-4308

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

HASSAN BDEIR

Before: Justice Julie I. Bourgeois

Reasons for Ruling on a Motion for Witnesses to Testify Without a Face Covering/Mask

Counsel: Ms. L. Bramwell, counsel for the Respondent Ms. D. Condo, counsel for the Applicant

BOURGEOIS J.:

[1] At the start of his trial, Mr. Bdeir, through his counsel, brought a motion to have witnesses testify without a face covering or a mask on the basis that the central issue in this case is one of credibility. Mr. Bdeir is charged that on January 1st, 2019, he sexually assaulted Mrs. R.R. when she was occupying the front passenger seat of his car, as an Uber client. It was argued that since the central issue is the assessment of credibility of the witnesses, then their entire face needs to be observed. It was argued that facial expression is an important component to be assessed by the parties and the court. Ultimately, the Applicant argues that to make full answer and defence, he needs to be able to see the complainant’s facial expression, without a mask, during her testimony.

[2] Not to delay the start of the trial, I informed the parties I would provide my reasons later but concluded the witnesses testifying in person from the courtroom needed to be wearing a face covering/mask. These are my reasons.

[3] This motion comes amid a worldwide pandemic forcing a state of emergency to be declared for the Province of Ontario. On January 12, 2021, the provincial government issued a “stay at home” lockdown directive. While the Message re COVID-19 (Updated January 13, 2021) from the Ontario Court of Justice “stresses the importance of limiting in-person attendance at courthouses”, the Superior Court of Justice in Ontario is proceeding virtually (for all non-jury matters, as jury trials are suspended), “unless it is absolutely necessary to hold the proceeding in-person” (see Notice to the Profession and Public Regarding Court Proceedings – January 13, 2021). As the scientific knowledge around the Covid-19 coronavirus evolves, the wearing of a mask, covering the nose and mouth, is now part of a fundamental principle to help reduce the risk of transmission of the virus.

[4] Judges share a responsibility for the safety and security of the people attending the courtroom where we preside.

[5] The Honourable Justice Archie Campbell, Commissioner of the SARS Commission, in his December 2006 report Spring of Fear, regarding the SARS outbreak in Ontario, stated the most important lesson of SARS was implementing the “precautionary principle”. Applying the “precautionary principle” means that actions to reduce risk, need not await scientific certainty and ought to guide us across the board, at each level and every step of the way. (see vol 1 p. 29-30)

[6] It is with this precautionary principle in mind that I concluded that everyone in the courtroom where I preside, including myself of course, needed to be wearing the mask, at all times. Being in a courtroom, all day, with up to nine other people, requires this simple measure, especially in the face of the evolution of the scientific knowledge about propagation of the virus by aerosol.

[7] There is no set legal framework, yet, when considering testimony behind a mask. But I think R. v. N.S., 2012 SCC 72, offers an important starting point for our consideration. However, what we are trying to balance here are not an accused and a witness’ constitutional rights but rather, we are applying the precautionary principle and our responsibility to ensure a safe courtroom in the context of a public health crisis and balancing an accused’s constitutional rights against that larger public health context.

[8] When considering the four questions proposed in N.S., supra, as identified in paragraphs 8 and 9, and applying them to this context of the public health pandemic, N.S. clearly can provide guidance and, I would even say, a basis for ordering the mask while a witness testifies. The majority in this case did not expand on observation of a witness’ full face while testifying because, even though submissions were made on this and referenced articles, no expert evidence was presented. As a result, the majority worked from the general rule that witnesses are required to testify in open court, with their faces visible as being the norm. However, the Supreme Court did stipulate that this did not mean that it could not be displaced. In fact, when considering the relatively new ways of testifying through an interpreter or behind a screen or through the close-circuit television (CCTV), or even the section 276 regime, long-standing assumptions of the common law can be and are modified.

[9] The evolution of the rules of evidence to account for or reflect societal values, policies or priorities is once again brought to the forefront when considering the manner in which witnesses are to testify during a pandemic. As a reminder, let’s consider L’Heureux-Dubé, J.’s words, at para. 22 in R. v. Levogiannis, [1993] 4 S.R.C. 475: “One must recall that rules of evidence are not cast in stone, nor are they enacted in a vacuum. They evolve with time.”

[10] These difficult times call for just that. The Applicant’s right to make full answer and defence needs to be balanced against the competing and broader societal interest of public health and safety during this worldwide pandemic.

[11] When considering the dissent from Abella, J. in N.S., in the context of the Covid-19 pandemic, in relation to demeanor evidence and credibility assessment, it is, in my view, particularly convincing. In fact, when considering the examples, the majority provided at paragraph 26, not much, if any, have to do with observations of the mouth and nose of the witness in assessing credibility. But when considering J. Abella’s words at paragraph 106, this partial obstacle, of a mask covering the nose and mouth of a witness, to the assessment of demeanour still provides counsel the opportunity to rigorously cross-examine the witness:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour. A witness wearing a niqab may still express herself through her eyes, body language, and gestures. Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives. Unlike out-of- court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand.

[12] Speaking of demeanour evidence, another case I want to bring to your attention is R. v. Rhayel, 2015 ONCA 377. Again, this case was discussed in a different context of course but the teachings are just as valuable to assist us in this context. Our Court of Appeal warned us about demeanour evidence of witnesses, at paragraph 89: “(…) it is important for trial judges to bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence.”

[13] Oddly enough, our court of appeal makes no reference to the Supreme Court of Canada decision in NS, supra. However, similar passages to J. Abella’s dissent on demeanour evidence are quoted by the unanimous panel for the Court of Appeal for Ontario (see para. 85 to 88).

[14] We are now at a stage where the evolution of the science competes with the mutation of the virus and the ability to inoculate vast volume of the population to keep everyone safe. Even a basic measure such as wearing a face covering runs the risk of proving to be insufficient for in-person matters to protect the people inside a courtroom, despite other measures already in place, such as self-reporting screening tools, and in the absence of yet more robust other measures, such as verifying body temperature or air purifying. It just seems very ironic that we are asked to rely on the honesty of individuals self-reporting of screening tools to ensure our health and safety from this sometimes deadly virus but to assess the credibility of those same individuals as witnesses to determine the guilt or innocence of a person faced with a criminal offence. Where a face shield worn by a witness and the lawyer asking the questions appeared to be a safe and appropriate measure earlier during this pandemic, it is clearly not, as the scientific knowledge about the spreading of the virus evolves. A trial with witnesses having their nose and mouth covered can hardly be viewed as unfair in the midst of a public health pandemic, where governments have now joined the scientific community in recognizing that the potentially deadly virus can propagate through aerosol (see for example Review of “Airborne Transmission of SARS-CoV-2: Proceedings of a Workshop in Brief” – Public Health Ontario, Synopsis, October 27, 2020).

[15] Other avenues are available for the Applicant, such as remote testimony, through CCTV or other virtual means, allowing the witness to testify safely without a mask. To quote from LaForest, J. in R. v. Lyons, [1987] 2 S.C.R. 309, at para. 88 “[i]t seems to me that s. 7 of the Charter entitles the [appellant] to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined.”

[16] With judicial independence comes great responsibilities. Those responsibilities extend beyond procedural or constitutional guarantees. They also include shared responsibilities of keeping the people in our courtrooms safe. No one expects a judge to order a proceeding in the face of imminent danger to a justice participant. In the face of the current and continuing evolving situation, and in the spirit of the Message re Covid-19 (Updated January 13, 2021), it is difficult to conceive why witnesses and everyone else in the courtroom would in fact, not be ordered to keep their mask on at all times, especially when speaking or testifying. It is difficult enough to see how the in-person appearance of any party in this case “is required to ensure meaningful access to justice", the mandatory wearing of a mask covering the nose and mouth of the witnesses seems to be the only viable solution to the in-person trial.

Released: February 2, 2021 Signed: Justice Julie I. Bourgeois