Court File and Parties

Date: September 21, 2016

Information No.: 15-10414

Ontario Court of Justice

Her Majesty the Queen

v.

A.A.

Ruling

Before the Honourable Justice P.F. Monahan

on September 21, 2016 at Brampton, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4 & 539 OF THE CRIMINAL CODE BY ORDER OF JUSTICE P.F. MONAHAN DATED SEPTEMBER 21, 2016

Appearances

C. Valarezo – Counsel for the Crown

S. Virk – Counsel for A.A.

Ruling

MONAHAN, J.: (Orally)

This is my ruling concerning whether defence counsel should be permitted to be in the room with the complainant at the time of cross-examination.

Background

By way of introduction, A.A. is charged with sexual assault on N.A., contrary to section 271 of the Criminal Code of Canada and sexual interference in relation to N.A., contrary to section 151 of the Criminal Code of Canada. A preliminary inquiry is being held before me on September 21 and 22, 2016. I will refer to the complainant in these reasons as N.A.

The complainant is the daughter of the accused, A.A. She was born in 2003 and is currently today 13 years of age. She was 12 years of age when she gave two videotaped statements in May and June of 2015, in which she makes allegations relating to the events underlying the charges against her father. The allegations are that the father sexually assaulted her in 2012 when she was nine or ten years of age.

Preliminary Orders Sought

At the outset of the hearing, the Crown asked for a number of preliminary orders as follows:

1. An order banning the publication of the name of the complainant in this case, pursuant to section 486.4;

2. An order permitting the complainant to testify outside the presence of the accused, pursuant to section 486.2(1);

3. An order permitting the complainant to testify with a support worker present, pursuant to section 486.1(1).

It was also indicated at the outset of trial that it was anticipated an application would be brought under section 715.1 to admit into evidence two videotape statements of the complainant. The orders sought under sections 486.4, 486.2, and 486.1 as described above were all consented to by the defence.

Testimony Arrangements

Accordingly, N.A. testified in-chief in an adjacent room with the support worker present. The accused, the Court, and counsel could see N.A. when she testified with use of a videotaped system or video and audio system that this court – we were in courtroom 405 at 7755 Hurontario Street – is specifically set up for.

N.A., sitting in the adjacent room, could see the judge, namely myself, and she could hear me and, as well, she could hear the voices of the Crown and the defence. She could not actually see them because there is only one camera in this courtroom that is pointed at the court, although it can be adjusted and pointed at the counsel if necessary.

The bulk of the testimony of N.A. involved her watching the videos of videotaped statements she made in May and June of 2015. The Court, the accused, and counsel, and the witness all watched the videos together. N.A. adopted the content of the videos in her testimony and, in my view, the requirements of section 715.1 were met, and, on consent, an order was admitting the videos into evidence pursuant to section 715.1.

Witness Demeanour

N.A. was very upset in the videos themselves in 2015 and she cried throughout those videos. N.A. was also upset in her testimony today before me, simply watching the videos in court. The court had to adjourn the proceedings at one point shortly after the first video was being observed because N.A. was upset and crying. After we resumed her testimony, N.A. continued to be upset as she watched the videos. She appeared to be crying and using tissue to hold to her eyes and face throughout much of her testimony in the adjacent room today, September the 21st. She was quiet for the most part, but clearly upset.

Physical Layout of Testimony Room

The room in question where N.A. testified from thus far is, as I say, adjacent to courtroom 405 in this courthouse. The Court examined the room and while the Court will not venture a guess as to the measurements of the room, it may fairly be described as a relatively small room with a small conference table that would seat comfortably four to six people, in the Court's view.

It is proposed that defence counsel would sit at one side of the table with the witness at the end of the table and the support worker between them. The Crown would presumably sit somewhere else in the room as well. In these circumstances, the defence counsel would be, in my view, approximately four to six feet away from the witness. Part of this is a function of the technology in the room and the microphones and where they would have to sit.

Law

The legal framework would appear to be as follows:

Section 486.2(1) reads as follows:

Despite section 650 in any proceedings against an accused, the judge or justice shall on applications of the prosecutor of a witness who is under the age of 18 years, or of a witness who is able to communicate evidence, but may have difficulty doing so by reason of a mental or physical disability 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, unless the judge or justice is of the opinion the order would interfere with the proper administration of justice.

Section 486.2(7) provides as follows:

A witness shall not testify outside the courtroom under subsection one, two, four, or six, 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 testimony.

Section 715.1 of the Code permits evidence of a witness to be introduced as evidence in a case where a videotaped statement has been made before the person reach the age of 18, but within a reasonable time of the events in question.

Case Law Analysis

As concerns section 486.2 and the question of whether or not defence ought to be permitted to be in the adjacent room at the time of the cross-examination, the Crown put before the court two authorities. The first is a decision of the BC Court of Appeal in R. v. J.Z.S., 2008 BCCA 401, 238 CCC (3d) 522. In that case, the BC Court of Appeal dealt with a constitutional challenge to provisions of section 486.2 and section 16.1 of the Canada Evidence Act. That case did not deal directly with the question of whether or not counsel ought to be permitted to be in an adjacent room at the time of cross-examination, but as I say, it did deal with more broadly with the question of constitutionality of section 486.2. It was submitted in that case by the defence that section 486.2 contravenes section 7 and section 11(d) of the Charter with 11(d) being the right to be presumed innocent.

The BC Court of Appeal found that section 7 and section 11(d) were not breached by section 486.2 of the Code. The BC Court of Appeal considered among other things, the Supreme Court's decision in R. v. Levogiannis, [1993] 4 SCR 475. I note at paragraph 34 of the BC Court of Appeal decision in J.Z.S., the BC Court of Appeal said the following:

Section 7 requires a balancing of competing interests. An accused's right to a fair trial, including the right to make full answer and defence, must be balanced against the broader societal interest in having defences prosecuted.

Further on, I note that the BC Court of Appeal referred to Justice L'Heureux-Dubé, J., in the Levogiannis case at paragraph 35 when she said, "The main objective of the judicial process was the attainment of the truth." And she acknowledged that in order for a child to provide a full and candid account of the alleged offences, there may be circumstances where testimonial accommodation is required.

At paragraph 38, the BC Court of Appeal said the unique position of child witnesses in the child criminal justice context is further explored by the Supreme Court of Canada in R. v. L.D.O., [1993] 4 SCR 419, the companion decision to Levogiannis. And specifically the provisions of section 715.1, which were considered, Paragraph 39 of the BC Court of Appeal stated that in upholding the constitutional validity of section 715.1, L'Heureux-Dubé, J., writing concurring reasons with Gonthier, J., noted the previous jurisprudence recognized that the criminal justice system had to treat children differently from adults. The receipt of their evidence must be facilitated through modified rules of evidence in order to achieve the truth seeking goal of the judicial process.

Justice Sproat's Decision

Further authority was put before the court: the unreported decision of Justice Sproat, Superior Court judge in this jurisdiction, made on October 23, 2008. That case did specifically deal with the question before this court, namely whether defence counsel should be permitted to attend in the adjacent room for purpose of doing the cross-examination of a witness. There was specific evidence in that case that to permit direct contact between defence counsel and the witnesses, that could be problematic. At page six, Justice Sproat said:

There is substantial evidence which I accept that leads to conclude that this complainant will be better able to give her evidence, and that the Court is most likely to obtain a full and candid account by counsel asking questions from the courtroom.

And then at page eight, in his conclusion, he states:

In my opinion, it was clearly in the interests of justice and most likely to allow the complainant to give a full and accurate account that counsel remain in the courtroom, and now with the benefit of hindsight, I think that the complainant, while she certainly was reticent to testify in court, seemed to be able to provide many more answers than she was at the Discovery.

Legal Test

In my view, the test that follows from these cases is whether it is in the interest of justice that the child witness, in this case, N.A., be permitted to be cross-examined without defence counsel being in the room. This, in turn, requires a consideration of how is the truth to be best obtained. The Court must always bear in mind the right of an accused to a fair trial and a fair preliminary inquiry. Each case must, of course, be decided on its own facts.

I am satisfied that justice and fairness will best be promoted and respected by having counsel cross-examine the witness from outside the adjacent room; namely, that counsel remain in the courtroom with the judge, the defendant; namely, his client, the court staff, the Crown, the court reporter, and the interpreter.

Reasons for Decision

My reasons for this conclusion are as follows:

1. Age of Witness and Seriousness of Allegations

The witness is only 13 years of age and she is being called upon to testify to matters that she alleges occurred when she was about nine or ten; the alleged sexual assault by her father. The allegations, to state the obvious, are very serious, both from the perspective of the witness and from the perspective of the accused.

2. Proximity of Defence Counsel

If defence counsel were permitted to be in the room with the witness, he would be permitted to be significantly closer to the witness than if this were to take place in open court. In my view, this is undesirable and contrary to how witnesses are generally treated in a traditional court case without the use of special orders, such as those made under section 486.2.

3. Witness Emotional State

The witness was upset when she gave her evidence in-chief. As I have indicated above, the Court had to break when she was watching the video of her statements from 2015, and when we resumed, she continued to cry and was upset, as best as the court could tell. And I do not think there is any dispute about that, as I have said above, she was quiet, but she was clearly upset.

4. Accused's Right to Fair Trial

The accused's right to a fair trial and a fair preliminary inquiry can be fully respected with defence counsel cross-examining her from outside of the room and simply doing so in court. The Crown had no difficulty asking questions from outside the courtroom. The camera that is currently directed towards the judge, namely myself, can be turned and pointed towards defence counsel, if defence counsel wishes. And in this way, it will minimize the involvement of technology as best can be achieved by permitting the cross-examination by defence counsel of the witness to be more direct, while at the same time having them in separate rooms.

5. Accused's Ability to Communicate with Counsel

The accused will be in the same room as his counsel and in a position to speak to his counsel during the course of the cross-examination, thereby promoting fairness to the accused during the cross-examination.

6. Spirit of Section 486.2

The spirit of section 486.2 is to protect the witness while at the same time protecting the interest of the accused.

Conclusion

I am satisfied that the cross-examination with defence counsel outside the room will best promote a full and fair account of the evidence of the complainant, while at the same time respecting the fairness of the preliminary inquiry and trial rights of the accused. Those are my reasons.