Information and Court Details

Information No.: 15-7688

Ontario Court of Justice

Her Majesty the Queen v. C.W.

Ruling on Application

Before the Honourable Justice P.F. Band

Date: July 06, 2016 at Brampton, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

Appearances

E. Norman – Counsel for the Crown

V. Houvardas – Counsel for C.W.

Ruling on Application

BAND, J. (Orally):

All right. The Crown asks for permission to have Gordon, the support dog, attend in court beside the complainant for purposes of supporting her in her testimony in this preliminary inquiry. The Crown relies on Section 486.1 of the Criminal Code and points to a decision from the B.C. Provincial Court, called R. v. J.L.K. It is out of Surrey, dated 2015-05-04. She also relies on my ability to regulate the course of this preliminary inquiry.

I heard evidence from Ms. Kathy Perry of the Victim Witness Assistance Program concerning Gordon's training and certifications. There is no issue but that he is qualified for the role the Crown seeks him to perform. I am also satisfied, having heard about him and seen him during Ms. Perry's testimony, that he will not interfere with the course of this preliminary inquiry if he is permitted to sit in.

It may be that in another case, the handler and the dog are both being sought as sources of support. The evidence I heard today was focused entirely on the role that the dog will play in supporting the witness.

Ms. Perry's role is strictly as an appendage to the dog and she is required for obvious reasons. First, the dog must be handled by a human who is able to handle him, and second, there are insurance requirements at play. The rub is that Section 486.1 refers to support persons. It is a piece of legislation that, as far as I know, predates the advent of the proposed use of support dogs to assist witnesses in giving their testimony in this country. The dog is not a person and no party seeks that I interpret that word in Section 486 broadly enough to encompass a dog or other animal.

All are agreed that the dog, notwithstanding his many certificates and qualifications, is a type of testimonial aid concerning any in-court role he might play. So in my view, given how the application was brought and how the evidence was called, the Crown would fail, even under Section 486.1(2), the section that gives me broader discretion where I am of the view that allowances should be made for a support person where one is "necessary to obtain a full and candid account from the witness of the acts complained of." That is because that subsection is about support persons.

At my urging, the parties considered the relatively new Canadian Victims' Bill of Rights, which was proclaimed into force on July 23rd, 2015. That statute defines victims as any individual who has suffered physical or emotional harm, property damage, or economic loss as the result of the commission or alleged commission of an offence. In it, Parliament saw fit to legislate a right for victims as defined to request testimonial aids when appearing in proceedings relating to an offence. See Section 13.

In my view, the Victims' Bill of Rights gives me jurisdiction to exercise my discretion to allow the complainant to testify with the assistance of Gordon, the dog, as an aid. Naturally, Ms. Perry will have to be at the dog's side, and as she has told in her testimony, she will sit quietly and merely ensure that the dog is behaving as expected.

The complainant is vulnerable. She is complaining of a historical sexual assault at the hands of her step-father. She is alone in these proceedings, given the family context. She also suffers from anxiety, which is relieved to some extent, by contact with Gordon.

I am also satisfied that Gordon's presence will not interfere with the proceedings or with the accused's right to make full answer and defence. I pause here to note that he is not in any jeopardy right now. This is a preliminary inquiry. But I also point out that I have not heard that his ability to defend himself would be affected either by distraction or fear of the dog or some other reason.

Finally, I am satisfied that Section 537(1)(i) provides me with jurisdiction to regulate the course of this inquiry. I am of the view that allowing Gordon to be present as a testimonial aid is consistent with the general thrust of the witness support sections found in Part XV of the Criminal Code. Should there be any cause to revisit this order, the parties are welcome to bring it to my attention and I guess we will begin after lunch.

MS. NORMAN: Thank you.

THE COURT: Okay.

MR. HOUVARDAS: Thank you, Your Honour.