Information No. 4611-998-152575, 4611-998-160715

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

WILLIAM CALDER

RULING ON APPLICATION (s. 486.2)

BEFORE THE HONOURABLE JUSTICE N. S. DOUGLAS

On March 31, 2016, at GUELPH, Ontario

APPEARANCES

• J. MacDonald – Counsel for the Crown
• W. Calder – Self-Represented

TABLE OF CONTENTS

• Ruling on Application – Page 1
• Transcript ordered: March 31, 2016
• Transcript Completed: April 6, 2016
• Ordering Party Notified: April 6, 2016

THURSDAY, MARCH 31, 2016

RULING ON APPLICATION

DOUGLAS, J. (Orally):

This goes back to the reasons that I gave for refusing the Crown's application on a s. 486.2 application to hear the evidence of two adult witnesses out of the courtroom by closed-circuit TV. The corollary to that was if I refused that then at least to allow them to testify behind a screen.

I have become concerned with the number of these applications that are being brought over the last little while and so I thought I would give expanded reasons. Now that I have heard these two women testify I am in a better position to assess this specific application.

Let me just say at the outset that Mr. Calder was charged originally on a 12-count information and the matter came before me for a preliminary inquiry. We are now on the third day of that preliminary inquiry, are nearly done, but another set of charges has surfaced during the preliminary inquiry and so I have determined to include those new charges in this present preliminary inquiry. They involve one witness I believe, one main witness, and that witness will be called next Wednesday which will then be the fourth day of a preliminary inquiry on what are now 16 charges, two of which the Crown has decided not to proceed on, counts nine and 11 of the original 12. In effect there will be 14 charges next Wednesday that I will be dealing with and giving my reasons on committal or non-committal. It is important to express what I am about to express because I need to convey the court's concern to both the Crown and to the police with this increasing number of applications for people to testify outside the courtroom.

Governing Legal Framework

The governing section is s. 486.2(1) and I am talking about witnesses who are over the age of 18 and who have no disability. They are described as "other witnesses" in the section. That section says that:

A judge, on application of the prosecutor, in respect of a witness, order that the witness testify outside the courtroom, 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.

When these applications are brought, the factors to be considered are outlined in the Criminal Code. They are:

1. The age of the witness.
2. The witness' mental or physical disabilities, if any.
3. The nature of the offence.
4. The nature of any relationship between a witness and the accused.
5. Whether the witness needs the order for their security or to protect them from intimidation or retaliation.
6. Whether the order is needed to protect the identity of a peace officer (which doesn't apply here).
7. Society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process.
8. Any other factor that the judge or justice considers relevant.

Background of the Application

When the preliminary was set three days were set for it, that is March 24th, 29th and 31st. The 31st is today, the day I'm speaking. The Crown brought an application on February the 3rd to ask the court to allow the defendant's two ex-wives, both adults, to testify outside the courtroom or to be able to testify behind a screen. The affidavit that was filed to support that application is an affidavit of the investigating officer who testified at this preliminary hearing, Constable Jordan Yantzi. In that affidavit he said this at paragraphs 32 and 33. He said he spoke with April Roy and Lori Calder. They are the two ex-wives. He said he updated them that Mr. Calder was representing himself and that there was a possibility that they would have to testify in front of Bill Calder at the preliminary hearing and that Mr. Calder may ask her questions during the cross-examination.

The first witness, April Roy, said that she would be able to provide better testimony away from him, that she is very upset and emotional over how Mr. Calder has treated her. She would feel very uncomfortable and would be "an emotional mess". She said that if she saw him in the courtroom it would be very difficult for her and asked to testify by way of the CCTV or at least behind a curtain.

The second witness, Lori Calder, again was told first by the Constable that she would have to be testifying in front of him and that there was a possibility she might even be cross-examined by him. She said if she was cross-examined by him she would become angry and would become very emotional. She said that it was very hard for her to have a conversation with him without losing control, that because he was emotionally and psychologically controlling this would affect her ability to testify in front of him. She said that the thought of seeing him makes her nauseous.

Actual Testimony of the Witnesses

So, on the basis of that both of these women testified. Now it should be said that along with that application the Crown was bringing an application to have counsel appointed for Mr. Calder so that he would not be able to cross-examine them directly. That application I had no difficulty with and granted it immediately. So, as it turned out, these two witnesses did testify and they were cross-examined by an experienced counsel, not Mr. Calder, and here is what happened.

On March 24th they were called. I watched them very carefully. April Roy, aged 36, was the first witness called. She was in the witness box for a very short period of time in the courtroom. At no time did she need my assistance. At no time did she look like she was distressed. At no time did she appear to me that she had any difficulty testifying and when she was done she left the courtroom, no problem.

The next witness was Lori Calder, aged 45. She was in the witness box a very few moments, actually at one point laughed in the witness box, appeared to me to have no difficulty whatsoever in testifying and her evidence went in, and she was out without any difficulty at all.

Judicial Reasoning on the Application

When the application was brought I didn't have the benefit of knowing how these people were going to act and I said to the Crown at the time that we have built into this system by way of judges, all of whom are experienced in the criminal law, or at least even the newer judges are people who have the skills to do exactly what we are supposed to do. When I denied the application I said this:

One of the bulwarks of Canadian law is that an accused person who is innocent until proven guilty so as he sits here today he is an innocent man, and let us never forget that.

One of the bulwarks is that if a person is facing a trial of a serious charge he or she is entitled to have an open hearing. That is where we start. Now it is true that there are exceptions, usually involving frail witnesses, usually involving children who I have often allowed to testify outside of the courtroom by closed-circuit TV for obvious reasons. That is a narrow window and I am seeing more and more of these applications by the Crown to widen the window to include adults who it may be, find it difficult, emotionally distressing to give evidence in an open courtroom and that is a matter of degree.

Every person who gets into the witness stand, maybe not police officers who do it regularly, but every civilian witness who gets into a witness stand with very few exceptions is nervous. This is a room that is our workshop, the judges and the lawyers and the staff. We are not nervous in here, this is where we work but we cannot forget that when people come walking in here and have never been in a courtroom before, the only experience they have in a courtroom is seeing it on TV, it is not a comfortable place to be.

I have great sympathy for victims of crime. No one could ever accuse me of not having sympathy for victims of crime. After the crime is proven they are victims. Before the crime is proven they are not. I and every other judge that I know will handle witnesses gently, courteously, helpfully. If there is a witness who is struggling in the witness box every judge that I know is trained to handle that situation. We must trust our judicial officers to have some empathy for every witness, whether it is the alleged victim or whether it is the accused who is giving evidence to understand that it is not a pleasant experience.

If witnesses break down and simply cannot go on the judge will deal with it and maybe then will allow the witness to, if it is a genuine situation, to testify from outside the courtroom. But to allow now these applications where "let's just make it easier for witnesses to testify outside the courtroom" is not going to happen. So, the Crown has a hurdle and that hurdle is to satisfy me that when we have this trial the judge will not be able to handle the witness who is upset, crying, needing a break. That is common fare.

I do not have any choice if they are under 18. I understand that and that is why I thought the Crown was saying something that she wasn't. I do have the discretion in these types of cases and my discretion is these adult witnesses, as difficult as it may be for them, will be testifying in open court and we will take it as it goes.

That part of the application therefore is dismissed. The other part, of course, makes common sense, a lay person is way out of his league in a criminal courtroom cross-examining witnesses and particularly if it is an emotional situation. In that type of situation I agree wholeheartedly with the Crown's application here. Whether he likes it or not there is going to be a lawyer cross-examining the witness so the case doesn't take 20 days when it should take one. That part of the application is successful. The other part is dismissed.

Additional Judicial Concerns

It is obvious I think that this particular case has caused me some concern on several levels. While I understand the argument that if someone threatens to shoot their children or kill an entire church congregation, it is a serious matter.

I am of the view that it is regrettable that this self-represented person has been in custody for such a long time awaiting a preliminary inquiry. He has been in jail now for nearly six months I'm told. Since this is a preliminary inquiry my concern is that it is going to take another substantial period of time if he is committed on these charges to have a trial before Superior Court.

I am not satisfied that there was the proper groundwork done by the police, or checked by the Crown, with this particular application because the Crown needs to scrutinize these requests from the police and not simply rely on the police statement. I am sure the Crown interviewed these witnesses before testifying and that is something that should happen before these applications are brought in my view.

In my judgment it is of fundamental importance that witnesses testify in an open courtroom and that has exceptions but I am concerned that those exceptions may be becoming the rule. I wanted to make very clear what my thinking was on this application. I will now adjourn the rest of this preliminary inquiry to next Wednesday.

Transcript ordered: March 31, 2016 Transcript Completed: April 6, 2016 Ordering Party Notified: April 6, 2016