COURT FILE NO.: CR-9/20 DATE: 20220426
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – J.D.
Ms. V. Reid, for the Crown, Applicant Mr. V. Cojocaru, for the Accused, Respondent, J.D.
HEARD: April 25, 2022
ENDORSEMENT – CROWN APPLICATION FOR TESTIMONIAL AIDS
PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
conlan j.
I. The Charge and the Upcoming Trial
[1] Mr. J.D. is accused of one count of sexual assault (section 271 of the Criminal Code). The alleged victim is an adult, and she was an adult at the time of the alleged offence. She is the niece, but not a blood relative, of the accused. The trial in the Superior Court of Justice at Milton, without a jury, is scheduled to commence very soon.
II. The Application
[2] First, the Crown applies for an order to have the complainant be able to testify at trial remotely, via closed-circuit television with an audio and video feed, likely utilizing the Zoom platform, from a room inside the courthouse that is separate from the courtroom. That request is made under subsection 486.2(1) of the Criminal Code, on the basis not of age but of an alleged mental disability. Set out below are the relevant statutory provisions for the said request, clauses (1), (2.1), (3), (5), and (6) of section 486.2.
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
a) the age of the witness;
b) the witness’ mental or physical disabilities, if any;
c) the nature of the offence;
d) the nature of any relationship between the witness and the accused;
e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
h) any other factor that the judge or justice considers relevant.
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
[3] In the alternative, the Crown advances the same request under subsection 486.2(2). Thus, reproduced below are clauses (2) and (4) of section 486.2.
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
[4] Second, the Crown applies for an order to have a support person present and close to the complainant when she gives her evidence at trial. That request is made under subsection 486.1(1) of the Criminal Code, on the same basis of an alleged mental disability. Alternatively, the Crown advances the same request under subsection 486.1(2). Set out below are the relevant statutory provisions for the said requests, clauses (1) through (6) of section 486.1.
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
(4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.
(5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
[5] The Application was heard at Court on April 25, 2022. The Crown called one witness to testify, a person who previously swore/affirmed three affidavits, Ms. K. Watt of the Victim Witness Assistance Program in Halton. Ms. Watt was cross-examined by defence counsel. The defence called one witness to testify, police officer J. Dennis. Officer Dennis was also questioned by the Crown. The evidentiary portion of the hearing of the application was completed in less than one-half day.
III. The Submissions of Counsel (both written and delivered orally)
[6] The Crown submits that a privacy screen is relatively antiquated equipment that should generally give way to remote testimony via closed-circuit television or Zoom. Respectfully, I disagree. Parliament made amendments to the relevant sections of the Criminal Code as recently as the year 2015, and the word “screen” remains an equal alternative to testimony “outside the court room”, as per subsection 486.2(1). One of the Crown’s own fairly recent cases, R. v. K.P., [2017] N.J. No. 69 (N.L.P.C.), regardless of its result, contains a discussion of the use of a privacy screen.
[7] The Crown argues that, in some instances, being able to observe a witness on a television, monitor, or computer screen may even be better than in-person observations. Again, I respectfully disagree. Facial expressions observed electronically are every bit as good as those seen in the courtroom, however, overall demeanour and body language are more readily observed in-person, in my experience.
[8] The Crown submits that the alleged bias of Ms. Watt is no reason to dismiss the within application. I agree. I do not accept the argument by defence counsel that Ms. Watt is partial because she refers to the complainant as a “victim” and/or because she failed to refer in her March 2022 affidavit to her affidavit that was affirmed in February 2022. I accept Ms. Watt’s evidence that she treated the March 2022 affidavit as, essentially, a more complete replacement (my word) for what she had affirmed a month earlier, and thus, in her third affidavit she referred only to the first (and not the second) affidavit.
[9] The Crown argues that the complainant suffers from post-traumatic stress disorder and anxiety, and that she has been under the care of a psychiatrist and has been prescribed medication. I agree that the evidence filed establishes those facts.
[10] The Crown submits that subsection 486.2(1), once the criteria are met, creates a presumption that the witness be allowed to testify with one of the aids listed therein. I agree. Once the criteria are met, the judge “shall” make the order “unless” it would interfere with the proper administration of justice.
[11] The Crown submits that it is “obvious” that a panic attack would interfere with the complainant’s ability to testify. I agree. That is not the end of the inquiry, however, given the position advanced by the defence. That position involves two important concessions – no submissions were made against the request for a support person being present and close to the complainant while she testifies, and further the defence has invited this Court to order the privacy screen.
[12] The Crown submits that expert evidence is not required on this type of application. I agree. R. v. Lanthier, 1997 O.J. 4238 (O.C.J.), at paragraphs 71-72; R. v. Dykes, [2018] O.J. No. 2979 (S.C.J.), at paragraph 58.
[13] The Crown argues that hearsay evidence is admissible on this type of application. I agree. Evidence from the witness who wishes to testify with the aid in question is not required. It would, of course, in terms of viva voce evidence, defeat the whole purpose of the legislation.
[14] The Crown submits that this type of application, to succeed, need not be held in abeyance until the witness in question actually takes the witness box and begins to experience some difficulty. I agree. I also agree that the test is not an onerous one and is a test that must be met on the civil standard of proof – on a balance of probabilities. R. v. Gure, [2018] O.J. No. 7251 (O.C.J.), at paragraphs 38-40, 45, and 51; R. v. Blake, 2019 ONSC 6026 (S.C.J.), at paragraph 21.
[15] The Crown submits that there is no evidence before the Court to suggest that defence counsel’s cross-examination of the complainant would be hindered if she was permitted to testify remotely. I agree. That misses the point, however, with respect. Prejudice to cross-examination is one way in which a judge may find that to allow this type of application would interfere with the proper administration of justice, but the consideration of whether the order sought would interfere in that way becomes necessary under subsection 486.2(1) only once it has been determined that the criteria have been met by the applicant, here the Crown. What “criteria” am I referring to? Most importantly, that the witness’ potential difficulty in communicating his/her evidence is “by reason of” a disability. In my view, “by reason of”, in plain language, means because, or as a result of, whether in whole or in part.
[16] I have focused here on the submissions of the Crown, as it is the Crown which is the unsuccessful party on the contentious portion of the within application.
IV. Decision
[17] As it is not contested by the defence, the Crown’s request for an order that a support person be present and be close to the complainant while she testifies at trial is granted, pursuant to subsection 486.1(1) of the Criminal Code. That support person may be Ms. Watt.
[18] The Crown’s request for an order that the complainant be permitted to testify at trial from outside the courtroom is denied. The complainant shall testify inside the courtroom. If she wishes, as it was expressly invited by the defence, the complainant may testify in the courtroom behind a privacy screen. If that occurs, then this Court will ensure that all necessary steps are taken so that the complainant does not see the accused in the courtroom, before entering, while inside, and after exiting the witness box.
[19] It is quite simple as to why the Crown’s principal position under section 486.2 is not accepted by this Court. Although I am prepared to find that the complainant has a mental disability, and although it is clear that she is able to communicate evidence, I am not satisfied that she may have difficulty communicating her evidence by reason of her mental disability. There is nothing in any of the three affidavits signed by Ms. Watt, or in her oral testimony at the hearing, that draws any nexus or link between (i) the complainant’s anxiety, depression, and/or post-traumatic stress disorder (which are the three ailments that constitute her mental disability) and (ii) her potential difficulty in communicating her evidence, but for the possibility of the complainant experiencing a panic attack. There is nothing in the evidence of the police officer that draws any link between the complainant’s mental health and her ability to communicate her evidence; in fact the police officer was honest in saying that she could only “imagine” or “assume” such a nexus. There is nothing in the transcript evidence from the preliminary inquiry that draws any such link. There is no other evidence before the Court on the application, whether from the complainant, or a family member or a friend, or from anyone who has treated the complainant, or from anyone who has interviewed the complainant.
[20] The state chose not to enquire whether the complainant’s risk of experiencing a panic attack while testifying would be ameliorated through the other protective measures conceded by the defence – a privacy screen and the presence of the support person. I respect that choice, however, it is not for this Court to speculate that something more than that is warranted or even desirable. I accept the evidence of Ms. Watt that she did not speak with the complainant about the privacy screen because it, to her knowledge, has not been used for several years in Halton. The fact is that the screen is a measure expressly contemplated by Parliament, and this Court has no reason to believe that it is not available for the upcoming trial in Milton.
[21] There is no need for this Court to assess the suitability of subsection 486.2(2) to the within application. That provision was only advanced by the Crown in the event that this Court rejected the argument that the complainant has a mental disability (paragraph 11 of the Crown’s factum). This Court has not rejected that argument. This Court accepts that argument. What this Court does not accept is that the complainant’s potential difficulty in communicating her evidence is because, or as a result of, or “by reason of”, her depression, anxiety, and/or post-traumatic stress disorder. If I am wrong in that conclusion, it matters not because an equal alternative to remote testimony, the privacy screen, is being authorized.
[22] The result is that the Crown’s application is allowed in part. What is disallowed is the request that the complainant be permitted to testify at trial from outside the courtroom.
Conlan J.