Ontario Court of Justice
Date: 2022 04 25 Court File No.: Halton Info # 1211200 1852
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
M.Z.
Before: Justice Scott Latimer Heard on: March 22, 2022 Reasons for Decision released on: April 25, 2022
Counsel:
Mary Ward, counsel for the Crown Marcela Ahumada, counsel for M.Z.
LATIMER J.:
[1] This ruling concerns an application to have the complainant provide her evidence via closed circuit TV. I am satisfied there is a basis to make the order. To respect the existing non-identification order, I have initialized all relevant parties in this short ruling.
I. Evidentiary Record
[2] First, the evidentiary record. This trial involves an allegation that MZ sexually assaulted SS, the 18-year-old daughter of a family friend. At the time of the allegation, SS was living in MZ’s family home on a short-term basis.
[3] As a foundation for the requested order, the Crown relies on the affidavit and oral testimony of Kimberly Watt, a caseworker with the Victim Witness Assistance Program (“VWAP”). Her evidence consists of the following:
(1) She has met SS through her professional work with VWAP. They have spoken approximately six times. They have never met in person. During a recent conversation, Ms. Watt raised the issue of SS’s trial testimony. She was told that SS is fearful of being in the courtroom with MZ and believes that physical proximity would inhibit her ability to provide a full and candid account of her evidence.
(2) Ms. Watt was further advised by SS that she suffers from anxiety and has had, in the past, full-blown anxiety attacks that cause her heart to race and her body to shake. She is concerned that in-court testimony will trigger such an attack.
(3) In cross-examination, Ms. Watt advised that she does not have independent corroboration of what SS told her. She simply received this information during their professional discussion and relayed it to the Crown and now the court.
(4) The only testimonial aid discussed with SS was CCTV. There was no conversation about a support person. SS’s particular concern was physical proximity to MZ while she was testifying.
(5) Ms. Watt agreed in cross-examination that testimony, in and of itself, can reasonably be expected to cause anxiety, and that since the CCTV option became available more and more witnesses have expressed an interest in testifying in such a manner.
[4] Next, the admissibility standard. While initially reticent, a review of the authorities in this area has convinced me that credible and trustworthy hearsay is admissible on this procedural motion. On this point, I rely on the recent Superior Court judgment in R. v JRM, 2020 ONSC 8130. In that case, Justice Leach heard an identical motion in a sexual assault case and received a very similar affidavit. In JRM, the affidavit was from a police officer who relayed the views of the 35-year-old complainant, who suffered from severe anxiety for which she had previously taken medication. The complainant advised, and the officer believed, that testifying inside the courtroom would likely trigger her anxiety and potentially induce vomiting. The complainant did not believe she could provide a full and candid account of her evidence because of her anxiety concerns.
[5] Leach J, in comprehensive reasons which I adopt as legally correct for the purposes of this motion, addressed the issue of whether unsworn hearsay utterances from a complainant may form part of the evidentiary record. At para 17(c), he stated:
In considering applications made pursuant to section 486.2 of the Code, a trial judge has substantial latitude in deciding whether or not a requested order should be made, and the evidence offered in relation to the application need not take any particular form. Without limiting the generality of the foregoing, direct evidence from the relevant witness is not necessary, and an affidavit provided by a police officer may be sufficient to demonstrate that the requested order should be granted. Even unsworn statements of counsel, where accepted by the presiding judge, may provide a sufficient foundation for the judge to make a disputed order pursuant to s. 486.2 of the Code.
[6] This statement is consistent with the broader trial management approach to rulings that are more procedural than evidentiary: for example, see R. v. McKenzie, 2018 ONSC 2817, at para. 23:
Trial courts are often encouraged by courts of appeal to try to fairly, but efficiently, determine such pre-trial matters on the basis of just such records, without the needless calling of numerous witnesses to give detailed, first-hand, viva voce evidence and be subject to extensive cross-examinations.
[7] Applying these authorities, I am satisfied the hearsay statements contained in Ms. Watt’s affidavit are substantively admissible for the purposes of this procedural motion. I will now move to consider whether this evidence meets the Crown’s burden under s. 486.2(2) of the Code.
II. The s. 486.2(2) legal standard
[8] Returning to Leach J.’s decision in JRM, His Honour discussed the implications of Parliament’s decision, in 2015, to reduce the discretionary standard for issuance of these orders from “necessary” to “facilitate”. At para 17(d), he wrote:
Courts have emphasized that s. 486.2(2) previously required that such an order be “necessary to obtain a full and candid account from the witness of the acts complained of”, whereas the amended provisions, brought about by the Canadian Victims Bill of Rights in 2015, which enacted a package of amendments to the Code and other laws, have lowered that threshold somewhat to a less stringent test. In particular:
i. The amended provisions of s486.2(2) now permit such orders to be made if a judge is of the opinion that the order “would facilitate the giving of a full and candid account by the witness of the acts complained”, with “facilitate” plainly meaning “to make easy or easier”, “less difficult”, or “more easily achieved”.
III. Analysis
[9] I now move to my analysis. In considering this discretionary order, I view the evidence through the lens of the statutory considerations in 486.2(2) of the Code:
(1) The age of the witness. In this case, SS is 19 years old, just above the cut-off for a mandatory order of this kind.
(2) The witness’ mental or physical disabilities, if any. I am not satisfied that SS’s difficulties rise to the level required under s. 486.2(1). However, I am satisfied that they are nevertheless worthy of consideration under 486.2(2). I accept the existence of her anxiety-related condition, and the linkage between this condition and her ability to provide a comprehensive account inside the physical courtroom in the presence of MZ.
(3) The nature of the offence. This is a sexual assault matter. I am aware, as Leach J referred, of the repeated reminders the Supreme Court of Canada has provided trial judges that:
(a) testifying in a sexual assault matter can be traumatizing and harmful to complainants.
(b) The recent trend in courts has been to remove barriers to the truth-seeking process, and
(c) to promote the truth-seeking goal of the court process, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth (see JRM, at para. 18, and the authorities cited within)
A sexual assault proceeding, by necessity, involves the complainant providing private, intimate testimony. I am satisfied this reality could increase the likelihood that in-court testimony would impair SS’s ability to give a full and candid account of her allegations.
While I remain focused on the particular circumstances of this case, I do note that the comments of Justice Gorman, a provincial court judge in Newfoundland - to the extent that it would be a rare case where a 486.2(2) order would not be made in a sexual assault matter [1] - have been relied upon by judges across the country, including in this province: see, for example, R. v. Ahmad, 2021 OJ 7445 (SCJ), at para 12. While Parliament has not carved out a CCTV presumption for sexual assault complainants, I accept Gorman J.’s logic that the trauma-related concerns testimonial aids are meant to address are most acutely engaged in sexual assault prosecutions.
(4) The nature of the relationship between the witness and the accused. MZ was a head of the household SS was staying in on a short-term basis. I am satisfied, on the basis of the record before me, that he would have been in a position of some trust or authority towards SS. This factor favours issuance of the order.
(5) Subsections E, F and F.1, which relate to witness safety, undercover police scenarios and national security, do not apply in this case.
(6) Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system. I accept that making these orders, where the evidentiary record justifies it, has the capacity to further these valid justice system interests. I agree, again, with Leach J’s comments in JRM, particularly paragraph 45.
[10] The last statutory consideration is more of a catch-all, “any other factor that the judge or justice considers relevant”. I consider relevant the extensive experience I have had, and other courts have had, with forms of remote testimony during the pandemic. It has been noted by many judges, myself included, that video-enabled testimony does not impair the fact-finding process, and that credibility can be as easily assessed when the witness is on video as when they are seated in court, to the side of the jurist and often facing away, towards the examining lawyer: see the comments in, for example, R v O’Dea, 2021 OJ 4122 (SCJ), at paras. 18-25, R v Mischuk, 2021 OJ 1764 (CJ), at para. 4 (4) and – in the civil context but still applicable to the issue of assessing credibility remotely – Fraser v. Persaud, 2021 OJ 7147 (SCJ), at paras 25-26, where Regional Senior Justice Ricchetti states, at paras 25-26:
As for the factors against a virtual trial, there really are none.
The Defendant makes bald statements of credibility. But many trials have proceeded over the past 20 months virtually, including very serious criminal trials, very serious family trials and other civil trials. Besides, as I stated above, a further lengthy delay will mean that the events at issue will be at least 8-9 years old. Any loss to assessing credibility virtually (and I am not persuaded there are any) is easily overcome by having the "fresher" memory of the witnesses.
[11] In short, I am satisfied that the fact that credibility is likely a key consideration in this case is of limited value in determining whether a s. 486.2(2) order should be made.
[12] This application requests that SS attend the courthouse but testify from the closed-circuit room next door to the courtroom. Providing exhibits to the witness has historically been accomplished, when counsel remain in the courtroom – which in my view is the presumptive approach in these circumstances – by having the court clerk bring the exhibit into the CCTV room. Any witness control concerns that might arise are easily addressed when the presiding judge is in the next room.
[13] More fundamentally, I do not accept that there is a certain level of witness anxiety that is simply inherent in the judicial process over which we have no control. Parliament has provided testimonial aids for a reason and, more recently, intentionally lowered the applicable threshold to make these aids easier to obtain. The respondent is correct to point out the absence of evidence in this record capable of corroborating the complainant’s history of anxiety and her expected reaction to seeing MZ in court. Corroboration, however, is not required to meet the relatively low threshold that remains in s. 486.2(2) of the Code.
[14] Having considered all these factors and the surrounding caselaw, I am satisfied that the Crown has sufficiently linked the complainant’s anxiety concerns to her ability to provide a full and candid account of her allegations. I am satisfied that permitting her to testify in the CCTV room would facilitate the giving of a full and candid account of her evidence. While there was a bit of a discussion of the use of a screen during submissions, I am ultimately not convinced that this middle ground approach is appropriate in this case. I am satisfied facilitation will best be met by the use of CCTV.
[15] Finally, to be clear I make no order at this time regarding where counsel will be when they examine SS. I understand there may be disagreement between the parties on whether counsel would also be in the CCTV room or whether they would conduct their examination from the courtroom. In the event this disagreement continues, I would propose to hear submissions on this issue on the first day of trial.
IV. Disposition
[16] The Crown’s application under s. 486.2(2) is granted.
Released: April 25, 2022 Justice Scott Latimer
