Court File and Parties
Ontario Court of Justice
Date: 2014-12-03
Court File No.: Kitchener 13-6095
Between:
Her Majesty the Queen
— and —
Yiyan Xie
Before: Justice G. F. Hearn
Heard on: May 14, 2014
Ruling on s. 486.2(2) Application
Counsel:
- M. Sopinka, counsel for the Crown
- H. Mattson, counsel for the defendant Yiyan Xie
HEARN J.:
BACKGROUND
[1] Yiyan Xie is before the court facing charges of attempted murder and criminal harassment. At the commencement of the trial on May 14, 2014 the Crown made an application pursuant to s. 486.2(2) of the Criminal Code for an order allowing Yiyang Hao, who was the alleged victim in this matter and who at the time of the application was 21 years of age, to testify from outside the courtroom by way of closed-circuit remote testimony. Upon hearing evidence on the application and submissions of counsel the court granted the application and the trial proceeded thereafter on a number of days. At the time the application was heard the court provided oral reasons for the order ultimately made and indicated that additional reasons in writing would be provided. These are those reasons.
THE STATUTORY FRAMEWORK
[2] Section 486.2(2) provides as follows:
"Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or 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 is necessary to obtain a full and candid account from the witness of the acts complained of."
[3] Section 486.2(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."
[4] Section 486.2(3):
"In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3)."
[5] Section 486.1(3) states as follows:
"In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant."
EVIDENCE ON THE APPLICATION
Evidence of Detective Constable Matthew Demarte
[6] Detective Constable Demarte is a police officer with the Waterloo Regional Police Service and has been so for some ten years. He is the investigating officer with respect to the matters before the court and gave evidence viva voce as well as by way of affidavit filed in support of the application.
[7] Detective Constable Demarte provided initially some of the background with respect to the charges that are before the court. He had had a number of dealings with Ms. Hao, the alleged victim in this matter, who was 20 years old at the time of the offence. She was a university student who had arrived from China and had become involved in a relationship of some duration with the accused before the court. That relationship broke down and Mr. Xie had embarked on a campaign of sending e-mails to Ms. Hao which caused her to fear for her own safety.
[8] The officer spoke of the events leading up to the September 23, 2013 "attack". He described the circumstances surrounding the incident on September 23, 2013 where Ms. Hao had been attacked with a knife by Mr. Xie as a result of which she suffered injuries to her neck and was taken to the hospital. The officer also indicated that following the attack on Ms. Hao, Mr. Xie had attempted to take his own life. The attack had occurred near the residence of Ms. Hao where she was confronted by Mr. Xie who then took her into a bush area where the knife attack initiated.
[9] During the course of the investigation, and in particular in the weeks leading up to the trial, the officer had received information from a counsellor that Ms. Hao was expressing concern about her ability to provide a full and candid account of the incident. The officer reached out to Ms. Hao who e-mailed the officer setting out her concerns. That e-mail has been marked as Exhibit #1 to this application and it is dated April 13, 2014. In that e-mail Ms. Hao expresses a number of reasons for "not being in the same courtroom" with the accused. Among other things she speaks of the nightmares and the suffering that she has occasioned "every day" since the incident happened. She indicates that "blood and knife drive my nerves to the edge". She speaks of the time it will take her to recover and "any sight of him will bring me back to the worst. I trust that the court understand it too".
[10] Ms. Hao indicated in the e-mail that if she saw Mr. Xie the chances are that she "might cry due to scary and pain". She talks about her privacy, that she does not want her future life to be "affected by this" and expresses concern about being exposed in the court or to the public with the accused "and his family".
[11] Ms. Hao provided further reasons which included concerns about her family and Mr. Xie's family as well as her future safety. It is clear from the e-mail that Ms. Hao was fearful of being in the same room as Mr. Xie and the officer indicated Ms. Hao's concerns were such that she would be unable to provide a full accounting of the events. The officer also spoke of the fear and upset that Ms. Hao expressed.
[12] As a result of receiving the e-mail the officer then met with Ms. Hao on May 8, 2014 and at that time Ms. Hao indicated she would be afraid to be in the same room as the accused, she would have difficulties, she would cry and crying may affect her memory of the events. She indicated she has nightmares, was scared and depressed and as the case approaches trial those events were happening "more frequently". During the trial preparation the officer was present when Ms. Hao was asked if she would be able to provide a full account of the incident in a courtroom and Ms. Hao had indicated "No, not really".
[13] The officer also indicated he had concerns about Ms. Hao. He had been there the day the incident occurred, was familiar with the entire case and his observation was that Ms. Hao's fear "is evident". The officer felt that she would not be able to provide a full account of the events.
[14] In cross-examination the officer was questioned among other things about the contents of his affidavit that he had sworn on May 1, 2014. In that affidavit the officer indicated "Ms. Hao was concerned that if she had to see Mr. Xie she is likely to be overcome by fear and emotion and unable to provide her testimony in a full and candid manner". The officer indicated the fear and emotion and the concerns about those issues and the anxiety arising from the events had been present in his various dealings with Ms. Hao but the wording in his affidavit with respect to being unable to provide her testimony "in a full and candid manner" was his view based on his contact with her and the concerns she expressed. She had never specifically used those exact words to the officer.
Evidence of Casey Cruikshank
[15] Ms. Cruikshank is Director of the Waterloo Regional Sexual Assault/Domestic Violence Treatment Centre administered by St. Mary's General Hospital. Her curriculum vitae was marked as Exhibit #2 on the application.
[16] Ms. Cruikshank has held that position since 1992 and supervises a team comprised of 12 nurses and social workers. Her clinic received a call from Grand River Hospital in September of 2013 and as a result Ms. Cruikshank was familiar with the circumstances surrounding the events before the court.
[17] On March 21, 2014 Ms. Hao had contacted the clinic and as her social worker was away and Ms. Cruikshank could sense anxiety in the demeanour of Ms. Hao, she agreed to meet with her on that date. The anxiety had manifested itself, according to Ms. Cruikshank, by Ms. Hao appearing to be very nervous about going to court and Ms. Cruikshank's concern was verified when she met with Ms. Hao on March 21, 2014.
[18] Ms. Cruikshank asked one of the social workers to meet with her. That counsellor had the same concerns and spoke to Ms. Hao about options that might be available.
[19] Ms. Cruikshank testified when she met with Ms. Hao she could tell that she was "highly anxious" and it was difficult for her to express herself. She described Ms. Hao as being in a "frozen state" cognitively and she struck Ms. Cruikshank as being traumatized, overwhelmed and having difficulty putting her thoughts together.
[20] Arrangements were made for Ms. Hao to meet with a counsellor the following week but apparently Ms. Hao could not make it and Ms. Cruikshank left it up to Ms. Hao to make contact.
[21] Ms. Cruikshank spoke of her experience and the contact her centre has with some 400 people a year. She testified as a result of intake sessions she has a sense of the impact of violent offences on an individual and in this particular case expressed "hope" that the court would consider the age of the victim and noted that anyone threatened the way Ms. Hao had been would have concerns triggered, may feel overwhelmed and unable to "organize her thoughts".
[22] In cross-examination she was asked specifically whether or not Ms. Hao had indicated she would be unable or unwilling to tell "her story in open court". Ms. Cruikshank indicated Ms. Hao had indicated she was "very, very anxious and didn't know if she could go to court", although she had not used the specific words put to her by counsel.
[23] That concluded the evidence on the Crown's application. No further evidence was called.
ANALYSIS AND RULING
[24] Counsel have provided case law and I have reviewed the various cases provided. The cases are helpful in understanding the principles to be applied, the factors to be considered and the necessity for an evidential foundation that is required before making such an order as sought by the Crown.
[25] Still, each case is unique to the facts and circumstances before the court deciding the issue.
[26] This court starts with the premise that an accused is entitled to be present in the courtroom throughout the proceedings with certain exceptions as set out in s. 650 of the Criminal Code. This gives the accused the right and the ability to observe the witnesses as they are called by the Crown and to hear those witnesses give their evidence. Section 486.2 sets out an exception to that general rule and also sets out the principles to be applied and the requirements that are necessary to be met before an order allowing a witness to give evidence behind a screen or from outside the courtroom.
[27] The case law provided clearly indicates before such an order is made there must be an evidentiary basis. The decision based on the evidence presented on such an application has been described as not one "of discretion but rather one of judgment". See Regina v. M.(P.), [1990] O.J. No. 2313 (ON CA).
[28] Also, the court keeps in mind the test as set out in s. 486.2 is that the order must be "necessary to obtain a full and candid account from the witness of the acts complained of". The issue then is one of necessity and that is the threshold to be met. As noted in Regina v. C.D., [2010] O.J. No. 4351, at para. 20:
"The threshold that must be met is one of necessity. The section does not provide that the order can be given because it would 'facilitate' obtaining that full and candid account nor does it authorize an order being made because it might be the preferable or more comfortable or easier way of obtaining that account. The order must be 'necessary', which is defined in the Oxford Dictionary of English (2nd ed.; revised) as 'needed to be done, achieved, or present; essential'."
[29] I have considered the evidence presented by Det. Cst. Demarte and Ms. Cruikshank. I appreciate that the witness Ms. Hao herself has not provided evidence but I am of the opinion that it is not necessary for her to testify and there was no issue made of that by counsel during the course of the hearing of the application. I should note as well, although Det. Cst. Demarte expressed his opinion with regard to the necessity of the order, he was not qualified as an expert and I place no weight on that "opinion", notwithstanding there may or may not have been an objection to that evidence. I am, however, otherwise persuaded by the evidence of both Det. Cst. Demarte and Ms. Cruikshank that the order is appropriate.
[30] I am more than fully satisfied in order that the court receive a full and candid account of the acts complained of Ms. Hao should be permitted to give her evidence outside of the courtroom. I say that for a number of reasons:
1. Age and Background of the Witness
Ms. Hao is 21 years of age and at the time of the events was 20 years old. She was an exchange student from China and had been involved in a relationship with Mr. Xie. The facts provided indicate that relationship broke down and from the charges before the court, which include charges of attempted murder and criminal harassment, it is clear there is an allegation that Ms. Hao reasonably feared for her safety as a result of the alleged conduct of Mr. Xie for several months prior to the events of September 23, 2013 which involve the count of attempted murder.
2. Nature of the Offences and Circumstances
The facts alleged with respect to the events of September 23, 2013 indicate Ms. Hao was "attacked" by Mr. Xie with a knife, suffered injuries to her neck area and was taken to the hospital. Following the attempt Mr. Xie then took a knife and attempted to commit suicide in the presence of Ms. Hao. From the questioning of Det. Cst. Demarte by defence counsel it appears that the wounds incurred by Mr. Xie were significant and there appears to have been a rather traumatic scene, to say the least, at the scene of the crime. The nature of the offences and the circumstances surrounding the alleged offences as submitted on the application clearly would cause the complainant to be concerned.
3. Continuing Impact on the Witness
The events of September 23, 2013 and the months preceding have had and continue to have a significant impact on Ms. Hao. The officer who has dealt with her on a number of occasions has had an opportunity to observe her at the time of the offence, thereafter and most recently in preparation for this trial. He has had an opportunity to observe her "continuing fear and anxiety arising from the events surrounding the charges" as noted in his affidavit as well as his viva voce evidence. The officer has also expressed Ms. Hao's concern that she is likely to be overcome by fear and emotion and unable to provide her testimony in a full and candid manner. Ms. Hao continues, according to the officer, to have nightmares and experience fear.
4. Witness's Own Expressions of Concern
Ms. Hao, although not giving evidence on the application, clearly indicates in her e-mail to Det. Cst. Demarte [see Exhibit #1] that she suffers nightmares each and every day, the "blood and knife drive my nerves to the edge", and notes that her "mind can't get out of it. It is still fighting between life and death." She states it will take a long time for her to recover and any sight of him "will bring me back to the worst". She is clearly fearful of the accused and the events of September 23, 2013 and previous have obviously impacted her significantly. She is fearful of crying "due to scary and pain". In addition to the emotional impact of having to face Mr. Xie she is also concerned about members of the public and family being in the courtroom as well.
5. Expert Observations Regarding Emotional State
The evidence of Ms. Cruikshank who is a very experienced worker in the area of victim services clearly expresses her concern for Ms. Hao's emotional state. In her evidence she referred to Ms. Hao as being in a "frozen state" cognitively and when she met with Ms. Hao she described her as being traumatized, overwhelmed and having difficulty putting her thoughts together. In cross-examination she noted Ms. Hao to be very, very anxious and indicating she did not know if she would go to court. The fact she had not told either the counsellor or the officer apparently in so many words that she would not be able to give a "full and candid account" or unable or unwilling to "tell her story in open court" were words that need not be spoken given her emotional state and her clear indication of concern as noted in both her e-mail and in the evidence of Det. Cst. Demarte.
6. Relationship Between Witness and Accused
In addition to the age of Ms. Hao, I also consider her alleged relationship with the accused and the concerns expressed in her e-mail with respect to that former relationship. It is evident from the allegations with respect to the criminal harassment charge that there had been an alleged ongoing course of conduct by Mr. Xie even prior to September which is alleged to have reasonably caused her to fear for her safety.
7. Safeguards for the Accused's Rights
Also, when I look at any other circumstance that the court might consider relevant besides the matters already set forth, I am satisfied the equipment that is available at this courthouse is state of the art and Mr. Xie will have every opportunity to view very carefully and completely Ms. Hao while she is in the remote testimony room. Not only is the visual presentation without issue, but the audio transmission will be as well. I am prepared to afford counsel for Mr. Xie every opportunity to cross-examine Ms. Hao from any location that he may wish and if he chooses to cross-examine while in the remote testimony room himself I am prepared to allow him opportunities to consult with his client if and when the need or request might arise. The order will in no way, in my view, compromise Mr. Xie's right to make full answer and defence and afford his counsel every right to cross-examine. Further, this is not a trial with a jury as was the situation in a number of the cases provided and it goes without saying that the court draws no prejudicial inference from the order that is made.
[31] For the reasons noted the application is allowed and Yiyang Hao will be allowed to provide her evidence by way of closed circuit from the remote testimony room.
Released: December 3, 2014
Signed: "Justice G. F. Hearn"