WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), reads as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ABDUL SAMIR

Before: Justice Chapin

Heard on: April 4, 2016

Reasons for Judgment released on: June 15, 2016

Counsel:

• Ms. J. Bruno — counsel for the Crown
• Mr. C. Barry and Ms. L. Izakeliam — counsel for the accused Abdul Samir

REASONS FOR JUDGMENT

Chapin J.:

Introduction

[1] This is a ruling on a Crown application to exclude the public from the courtroom pursuant to s. 486(1) of the Criminal Code while the complainant testifies at this preliminary inquiry. The Crown called the officer in charge of the investigation, Detective Constable John Sianos, on the application. The defence did not call evidence on the application.

[2] The accused is charged with a number of offences contrary to the Criminal Code namely; extortion, sexual assault, invitation to touch, permit person under the age of 16 to be in a premises for the purpose of engaging in sexual activity, sexual interference and defamatory libel. The first five offences occurred between March 2010 and June 2011 and relate to the same complainant, A.Z., who was under the age of 16 at the time. The last offence also relates to A.Z.; however, she was over the age of 16 during the time frame alleged in 2014.

[3] The Crown called Det. Constable John Sianos on the application. Officer Sianos testified that he commenced his investigation in December of 2014 when the complainant attended at the police division to report the offences. Officer Sianos did not lay charges right away as the complainant had concerns about her physical safety if others found out she was a complainant despite the fact that she was coerced into engaging in the sexual activity alleged.

[4] A.Z. advised the officer that in the Afghan community the repercussions against her could be quite serious. Initially she advised the officer that things would be "very bad" for her. When he pressed her to provide further information she advised him that she would be cut off from her family and she might be subject to physical violence. She elaborated further and said that her father and uncles would be concerned if they learned that she was with a male unescorted.

[5] The allegations are that A.Z. was volunteering at a social function. The only males at the function were the musical band members. The accused was a member of the band and is apparently well-known in the Afghan community. Mr. Samir approached A.Z. and said that he had misplaced his cell phone and asked if he could use her cell phone to find his by calling it. A.Z. obliged and he called his phone with her cell phone. This allowed Mr. Samir to obtain her cell phone number from the display on his phone and on a later date he called her on her phone and requested a meeting. She agreed to meet with him and he told her that he would approach her family and tell them that she had been meeting with him unescorted unless she went out on a date with him. As a result of this threat she agreed to see him over the next few months.

[6] A.Z. was in grade 9 when these meetings began. When A.Z. was in grade 10, she found out that Mr. Samir was married and he went to Afghanistan for several months which effectively ended the relationship.

[7] In 2014 her husband, who was her fiancé at the time, was at an event where the accused was performing. The accused was bragging about being in possession of photographs of a female in her underwear and was showing the photographs to the group. The photographs were displayed on the cell phone belonging to the accused and A.Z.'s husband realized that the woman in the photographs was A.Z.

[8] Officer Sianos consulted with another police officer who is a member of the Afghan community, and that officer was aware of who Mr. Samir was.

[9] In February of 2015 A.Z. came back to Officer Sianos and told him that she felt it was important for her to come forward. She provided a video-taped statement to the police; however, A.Z. continued to express concern that she would be subject to violence from her family or from her husband's family if any of them became aware that she had met with Mr. Samir unescorted. She explained to the officer that, because she is female, she would not be believed if she told her family that she had been coerced into meeting with Mr. Samir. A.Z. is fearful that if her identity became known she would be vilified and that her reputation would be ruined for the rest of her life. She further advised that none of her family members are aware of what occurred except for her husband and her mother.

[10] Officer Sianos testified that A.Z. has never wavered in her position that she was fearful of being subjected to physical violence if members of her community were to learn about the case before the court. Officer Sianos also spoke to A.Z.'s husband who confirmed A.Z.'s fears.

[11] Detective Constable Sianos also testified that he became aware of a video that was posted to YouTube wherein the accused, through his lawyer, made statements about the case before the court. These statements were apparently to the effect that the charges are just allegations that would be tested in a court of law. Apparently the complainant's name was not mentioned in the video.

[12] During cross-examination Officer Sianos was asked if he had any formal training with respect to the Afghan culture. Although he had not, he testified that, in addition to receiving information from the complainant and her husband about the Afghan culture, he did some research. Officer Sianos did some reading from news sources, particularly the Shafia case where a husband, wife and son were convicted of killing four female family members and also did some reading on the Wikipedia website regarding the Afghan culture. Further, he had discussions with a fellow Toronto Police Service Officer who is a member of the Afghan community who advised him that A.Z.'s concerns were well founded.

Position of the Crown Applicant

[13] The Applicant takes the position that the test set out in section 486(1) of the Criminal Code has been met as the proper administration of justice requires that participants be protected. The Applicant submits that the evidence on the application demonstrates that A.Z. is very fearful of physical violence and emotional isolation should her identity become known in the community. In addition to this, the evidence that the accused is a well-known personality in the Toronto Afghan community, combined with the YouTube video referencing this proceeding makes it more likely that members of that community would attend this proceeding. The Applicant further submits that a ban on publication would not protect the complainant as the Afghan community is close knit and if a member of that community was to enter the courtroom and recognize the complainant her identity could well become known to those she fears.

[14] The Applicant also relies on section 12 of the Canadian Victims Bill of Rights which states that "Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings relating to the offence."

Position of the Respondent

[15] The Respondent takes the position that the Applicant has not met its onus in demonstrating that the open court principle should be displaced. The Respondent noted that the evidence is that the name of the complainant was not disclosed in the videos posted on YouTube that commented on the criminal proceedings and submits that the fact that the Respondent is well known in his community is not relevant.

[16] The Respondent also takes issue with the evidence of Detective Constable Sianos as he is not an expert in the Afghan culture and submits that his evidence is not an appropriate basis for an exclusion order given his lack of expertise. The Respondent also takes the position that the evidence regarding the research the officer conducted and his conversations with his fellow officer on the subject is inadmissible hearsay.

[17] The Respondent also submits that given that there were no specifics as to what the nature of the violence feared by the complainant was and for that reason the application should fail.

[18] Counsel for Mr. Samir did not articulate any basis upon which he would suffer prejudice if an order for exclusion of the public was made.

Analysis

[19] Section 486(1) of the Criminal Code provides a Judge with the discretion to exclude the public from the courtroom for all or part of the proceedings in certain circumstances. For ease of reference I have reproduced the section here:

486 (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application 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.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

[20] I was not provided with any relevant authorities by the Applicant or the Respondent and I have not been able to find any authorities directly on point; however, there are some reported cases that are of some assistance.

[21] In making an application pursuant to section 486(1) of the Criminal Code the Crown must establish an evidentiary basis for the order to be made if the facts are in dispute, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 48 (S.C.C.), R. v. Lefebvre (1984), 17 C.C.C. (3d) 277 (Que.C.A.), and R. v. Vandevelde (1994), 89 C.C.C. (3d) 161 (Sask. C.A).

[22] Although counsel for Mr. Samir took the position that expert evidence would be required to establish the requisite basis for an order excluding the public I was not provided with any authority for that assertion. In Vandevelde the court discussed the type of evidence that could be considered such as an agreed statement put forward by the parties as well as viva voce evidence. Those particular examples do not contemplate expert evidence as a requirement.

[23] The evidence in this case comes from the Officer in Charge, Detective Constable Sianos, who gave evidence on the application that would be inadmissible at a trial. In my view the evidence was credible and trustworthy information that can be considered for the purposes of the application.

[24] I note that there are many situations where a judge and or justice can rely on credible and trustworthy evidence when the determination to be made by the court is not one of guilt or innocence. For instance, with respect to sentencing hearings the Supreme Court of Canada held that "It is commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime." R. v. Gardiner, [1982] 2 S.C.R. 368.

[25] Section 518(1)(e) of the Criminal Code authorizes the receipt of "credible and trustworthy" hearsay evidence during bail hearings and section 540(7) allows for credible and trustworthy information that would otherwise be inadmissible to be presented at a preliminary inquiry. Credible and trustworthy evidence is also admissible in a forfeiture application brought by the Crown pursuant to section 490(9), see R. v. West et al. 77 O.R. (3d) 185 (ONCA).

[26] In my view the evidence of Detective Constable Sianos is credible and trustworthy. He was not seriously challenged on cross-examination with respect to the complainant's fear and he made a number of efforts to confirm that her fear was one that was reasonable in the circumstances. He did some research from news sources, Wikipedia and also spoke with a fellow officer who is a member of the Afghan community who confirmed that the complainant's fear was well founded. I find that I have no reason to doubt his evidence.

[27] In my view the fact that there were no specifics provided by the complainant as to what she feared in terms of the physical violence is not relevant. The concern is whether or not there is a reasonable and genuine fear for her physical wellbeing.

[28] The authorities make it clear that embarrassment on the part of a complainant is not an appropriate basis for a judge to order that the public be excluded; see R. v. Quesnel (1979), 51 C.C.C. (2d) 270 par.7 & 8 (Ont. C.A.), R. v. McDonald [2006] S.J. No. 213 and CBC v. New Brunswick (A.G.) (1996), 110 C.C.C. (3d) 193 par. 41 and par. 84(S.C.C.). However, s. 486(1) of the Code is a means "by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the under reporting of sexual assault offences." CBC v. New Brunswick par. 43 supra.

[29] In this case I am prepared to make a finding of fact that A.Z. is genuinely fearful for her physical safety and that it is an objectively reasonable fear. In Vandevelde (supra) the court found, at para. 44 that "If the capacity of a witness to testify in the presence of the general public is rendered impossible or so difficult that the witness is either unwilling or unable to testify or that the evidence would be rendered practically useless, with the result that the proper administration of justice is threatened or endangered, the right to a public trial must yield to the paramount consideration, the interest of justice."

[30] With respect to the elements I must consider in determining whether the order is in the interest of the proper administration of justice I have considered the factors enumerated in s. 486(2) of the Criminal Code. There is no doubt that society has a strong interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. If a court was to disregard objectively reasonable fears for a witness's physical safety there would be a very chilling effect on potential witnesses in the future.

[31] I must also consider the ability of A.Z. to provide a full and candid account of the acts complained of and whether the witness needs the order for her security and to protect her from intimidation or retaliation. This is not a situation where a complainant is only concerned with being embarrassed; there is a reasonably held fear that she could be subjected to social isolation as well as physical violence if her family members were made aware of the charges before the court.

[32] In my view there are no effective alternatives to an order to exclude the public during A.Z.'s evidence. A screen would only shield her from the public gallery while she is in the witness box. Members of the public would likely be able to see her face while she moves into and out of the courtroom. Although one might argue that perhaps the witness' face could be shielded while she walks to and from the witness box and the courtroom, the possibility of someone in her community recognizing her, if for some reason the method employed to shield her face fails, is not a risk I am willing to take. There is also the possibility that someone from her community could recognize her from other physical attributes or clothing.

[33] I am very aware of the open court principle and the need for it; however, this is one of those rare cases where it is appropriate to exclude the public while A.Z. testifies at this preliminary inquiry. Although the Applicant also relied on section 12 of the Canadian Victim's Bill of Rights, in my view the appropriate section is section 9 which states that "every victim has the right to have their security considered by the appropriate authorities in the criminal justice system."

[34] This order is only in force while A.Z. testifies.

Signed: "Justice Chapin"