Court File and Parties

Court File No.: CR-18-70000285-0000 Date: 2019-04-25 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant – and – Indrit Zaganjori, Respondent

Counsel: Scott Graham, for the Applicant Roots Gadhia, for the Respondent

Heard: April 17, 2019

Justice Peter Bawden

Endorsement

[1] The Crown applies pursuant to section 714.2 of the Criminal Code for an order permitting two civilian witnesses who currently reside outside of Canada to testify via video. The Code provides that the order shall be granted unless the defendant is able to demonstrate that to do so would offend the principles of fundamental justice.

[2] The principles of fundamental justice are not confined to the rights of the accused. Those principles include the right of the community to have criminal allegations tried expeditiously based on evidence which is obtained in a fair manner. (R. v. Levogiannis, [1993] 2 S.C.R. 295, at paragraph 19). The phrase imports a balancing between the right of the accused to a fair trial and the societal interest in allowing a trier of fact to arrive at a just determination of the case.

The Evidence

[3] In support of the application, I have received sworn affidavits from the two witnesses and transcripts of the preliminary inquiry evidence of all of the civilian witnesses. I have also heard from one of the witnesses via video link from her home in California.

[4] Candice Dwyer and David Heath were in a relationship on the day of the incident. They met with another couple at a Toronto bar at approximately 11:30 pm and were still there at 2:00 am when an argument broke out between Mr. Heath and a man alleged to be the accused, Mr. Zaganjori. The bartender asked the couple to leave the bar and they did so. While they were on the street outside of the bar, the accused allegedly approached them and pointed a gun at them.

[5] Credibility is anticipated to be the central issue at trial. Based on the cross-examination at the preliminary inquiry and submissions on this application, it appears that the defence takes the position that Mr. Heath challenged the Defendant to a fight outside the bar and that Mr. Heath has fabricated an allegation that the accused produced a firearm in the course of that encounter. It would presumably be further suggested that Ms. Dwyer has adopted that fabrication in order to support her boyfriend's account of events.

[6] Identity is not conceded. The police did not undertake any out of court identification procedures with either Ms. Dwyer or Mr. Heath and their only identification of the accused was in dock at the preliminary inquiry. The bartender was very familiar with Mr. Zaganjori and she does identify him as the man who entered into an argument with Mr. Heath in the bar. She is also very guardedly able to identify herself and the accused in a video taken near the time of the alleged incident. The Crown will rely on her identification as well as other circumstantial evidence to identify the accused.

[7] Ms. Gadhia, on behalf of Mr. Zaganjori, opposes the Crown's application. She argues the following:

• In order to conduct an effective cross-examination of these two crucial Crown witnesses, it is necessary that they be physically present in court in order that she can perceive and react to their non-verbal responses to questions.
• The accused has a time-honoured right to confront his accusers in open court.
• If the witnesses are permitted to testify by video, the necessary gravitas of testifying in an open court will be lost on them and the witnesses will be less inclined to abide by their affirmations to tell the truth.
• The defence will be deprived of an opportunity to challenge the identification evidence of the two Crown witnesses because they will not be able to see the accused and respond to suggestions put to them in cross-examination.
• If the witnesses testify by video, it will be impossible for the court to control their access to prior statements and evidence while they are responding to questions.

The Interests of the Witnesses

[8] Candice Dwyer is currently employed as a clinical research coordinator at the Stanford School of Medicine. She has resided in Mountain View, California since the fall of 2018. Her work requires her to remain close to Stanford University in order that she is available to recruit patients from the nearby military hospital and then conduct research using MRI equipment which is only available at the medical school.

[9] The Crown has not been able to guarantee to Ms. Dwyer that her airfare to fly back for the trial would be reimbursed. The cost of that travel may be as much as $3,000. Discounted tickets are generally not possible given the uncertainty of the day that she will testify.

[10] I find that testifying in person would be a very significant hardship for Ms. Dwyer.

[11] Mr. Heath's situation is not as clear. His affidavit states that he has been accepted into law school at Pepperdine University and the University of Colorado. He does not indicate that he has accepted either of those offers or when he will begin his courses. Although he was in the United States at the time that he swore the affidavit, he describes himself as a visitor throughout the affidavit and there is nothing to suggest that he has any status to remain in the country. Ms. Dwyer mentioned in her voir dire evidence that Mr. Heath is still a resident of Ontario.

[12] I am prepared to accept that testifying in person will likely present a significant burden for Mr. Heath.

The Interests of the Defendant

[13] Ms. Gadhia argues that in order to conduct her cross-examination, she must have the witnesses present in court in order to perceive and explore their non-verbal responses to her questions. Subsumed in this submission is the argument that the defendant has the right to confront his accusers in open court.

[14] Justice Sheard addressed the argument that counsel must see and hear a witness in person in R. v. Belem, 2017 ONSC 2213. I agree with Her Honour's comments and have nothing to add. It is now commonplace to hear testimony through high definition video technology and it can be safely said that nothing of consequence is lost in observing the intonation, facial expression or body language of the witness. In a courtroom which is properly equipped with monitors, the opportunity to observe and hear the witness is often significantly improved for the jurors, the judge and the defendant himself.

[15] The right of the defendant to confront his accuser in open court is an important one. The weight to be placed on this interest, however, will vary depending on the nature of the evidence given by the witness. In this case, the two witnesses who are seeking to testify by video are the only witnesses to the offences charged and their credibility is very much in issue. This factor certainly pulls in favour of requiring their physical presence at trial.

[16] The fact that identity is an issue at trial also favours in person testimony. When Ms. Dwyer testified on the voir dire, she did so using video conferencing software on her own laptop computer. Her only view of the courtroom was from the video camera installed on the Crown's laptop. She was not in a position to see the judge, the defendant or any participant in the trial apart from the counsel conducting the examination.

[17] There may be means of alleviating this difficulty with more cameras and better video conferencing software. It is clearly not ideal to rely on video evidence in circumstances where identity is in issue but, in my view, it is the Crown which is most likely suffer the consequences of that failing in this case. The Crown is relying on in dock identifications made by Ms. Dwyer and Mr. Heath at the preliminary inquiry. If this does remain a jury case, the Crown will have to anticipate a very strong instruction to the Jury concerning the hazards of such evidence. The instruction could well include some comment on the fact that the identifying witnesses were not present in court to have their identification tested in a meaningful way.

[18] Mr. Graham on behalf of the Crown has indicated that he is confident that the Crown will be able to prove identity based on the testimony of the bartender and circumstantial evidence linking the accused to a vehicle which appears on video near the scene of the incident.

[19] Based on the materials that have been put before me, I conclude that the defence will be able to challenge the identification evidence if Ms. Dwyer and Mr. Heath testify by video.

The Loss of Gravitas

[20] Ms. Dwyer testified on the voir dire from the living room of her apartment in California. Her dog began to bark midway through her evidence which obviously caused her some embarrassment and anxiety. At one point during her evidence, she picked up her laptop and panned the room to demonstrate that she was alone as she testified but there was nothing to preclude the possibility that someone might have been close by, listening to her evidence and prompting her to alter her testimony with hand signals. Ms. Gadhia relied on these facts to argue that if Ms. Dwyer is permitted to testify in the same fashion at trial, it would diminish any sense of gravitas to the occasion and would invite distracted and unsatisfactory evidence.

[21] I agree with that submission. Ms. Dwyer has accepted her responsibilities as a witness with grace and diligence. She retained counsel to prepare an affidavit in support of this application, made herself available to testify on the voir dire and attended in person at the preliminary inquiry for a full day of evidence. I have no lack of confidence in Ms. Dwyer.

[22] But the circumstances under which she gave her evidence on the voir dire were unsatisfactory and should not be replicated at trial. When video evidence is received from a witness within Canada, the evidence is frequently given at a courthouse with court staff present to administer the oath or affirmation and to facilitate the presentation of exhibits. In some circumstances, witnesses may also testify from police stations or other public facilities where video equipment is available. The site where the examination occurs should be free from outside influences or interruptions as would be the case in a courtroom. (R. v. Young, 2000 SKQB 419).

[23] Although it may be convenient and economical to have a witness testify from her living room using her own laptop computer, it is not appropriate for a criminal trial. I would only permit video testimony in such circumstances as a last resort.

[24] This Court cannot order that the witnesses testify from an American courtroom. Although the Crown would do well to investigate that possibility, the principles of fundamental justice do not demand that witnesses testify from an actual courtroom in order to be heard via video link. Most of the same testimonial benefits could be achieved if the witnesses were to testify from a video conferencing facility which is designed for legal proceedings. Such facilities are commonly used to discover witnesses in civil proceedings. The obligation is on the Crown, not the witnesses, to investigate the availability of an appropriate facility.

The Inability to Control the Environment of the Witness

[25] Ms. Gadhia submitted that if the witnesses are permitted to testify by video, they might surreptitiously review transcripts or notes in giving their responses or, worse still, receive assistance from another person who was not within sight of the camera.

[26] I dismiss this argument out of hand. When Ms. Dwyer testified on the voir dire, her attention was focused at all times on the laptop screen in front of her. If her gaze had even momentarily drifted to a transcript or an electronic screen which was not visible on camera, it would have been instantly obvious. If there was any realistic concern in this regard, it could be completely dispelled by positioning the video camera slightly farther away from the witness in order that the camera’s view would include his or her immediate surroundings.

Conclusion

[27] Taking into account all of the circumstances, I am satisfied that receiving the evidence of Ms. Dwyer and Mr. Heath by video will not offend the principles of fundamental justice.

[28] It will be for the trial judge to decide the final details of how the video cameras will be arranged in order to capture a complete view of the witnesses and ensure that the environment in which they are testifying is satisfactory. I also anticipate that the trial judge will want confirmation that Mr. Heath is outside of Canada and is unable to attend in person prior to receiving his evidence by video.

[29] If either party requires more specific terms in advance of the trial, that party is free to prepare a draft order which can be submitted to me in chambers. If there is any dispute concerning the terms, I will schedule a time to appear in court to hear submissions.

Justice Peter Bawden Released: April 25, 2019