ONTARIO COURT OF JUSTICE DATE: 2024·02·07 NEWMARKET

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAN JIN

RULING ON APPLICATION FOR TESTIMONIAL AID – SCREEN

Heard and Delivered: February 7, 2024.

Ms. Esti Azizi........................................................................................... counsel for the Crown Ms. Donna Pledge............................................................................. counsel for the defendant

KENKEL J.:

Introduction

[1] The Crown applies under s 486.2(2) of the Criminal Code for an order permitting the complainant to testify from behind a one-way screen.

[2] Mr. Jin is charged with six offences of domestic violence against his wife that are alleged to have occurred over a 9-year period. The complainant has advised the Crown that she is fearful of having to testify while seeing her former husband nearby in the courtroom.

[3] The defence is opposed to the application, citing the general principle that face-to-face confrontation is the norm. The defence questions whether the stated fear is genuine as the complainant has appeared in family court proceedings in the same courtroom as Mr. Jin. Testifying behind a screen that prevents a view of the accused could make it easier for a witness to exaggerate or falsify their evidence.

Testimonial Aid – Screen

[4] A court may make an order permitting a witness to testify behind a one-way screen if the judge is of the opinion that it would facilitate the giving of a full and candid account by the witness or would otherwise be in the interest of the proper administration of justice. Subsection 486.2(3) of the Criminal Code lists 9 criteria a judge must consider when determining whether to make such an order. The burden is on the applicant to establish that the order is required on the balance of probabilities.

[5] I accept the defence submission that the complainant is a mature woman and that there has been some contact between the complainant and her husband during the course of family court proceedings as regulated by that process. However, the fact of contact tells us nothing about the complainant’s state of mind at the time. The contact described is much different than testifying about the charges before this court.

[6] It’s not plain as a matter of logic or common experience that a witness would find it easier not to tell the truth if they were behind a one-way screen. This witness would be aware that her former husband was present nearby in the courtroom. She would be aware that everyone including defence counsel and the accused could see her as she testifies. There’s nothing about a screen that shields a witness from scrutiny or encourages testimony that is not truthful.

[7] The best mechanism we have to assist the truth-seeking function is cross-examination. The use of a screen does not restrict or impair the accused’s ability to cross-examine a witness – R. v. Levogiannis, [1993] SCJ No 70 at para 32.

Conclusion

[8] The allegations involve offences of violence in the domestic context over a 9-year period. The fear of a direct confrontation with the accused in the courtroom during testimony is not unreasonable in the context of those accusations. Society has an interest in the reporting of such allegations and in the participation of domestic complainants in the criminal justice process. The use of the one-way screen in this case would not impair the ability of the accused to challenge evidence through cross-examination.

[9] In this case I find it necessary to order use of the screen to ensure a full and candid account by the witness. The application is allowed.

Delivered: February 7, 2024.

Justice Joseph F. Kenkel