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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

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

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 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: October 6, 2017

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.G.

Before: Justice Sandra Bacchus

Rulings: Sections 540(7); 486.2(1) of the Criminal Code

Counsel:

• A. Weafer for the Crown
• L. Luciana for the Defendant

DECISION

Bacchus J.:

INTRODUCTION

[1] The defendant is charged with a count of assault and mischief, in addition to other offences not specified on this application, arising from incidents that occurred on August 20, 2016.

[2] J.T. is both a complainant and a witness. The defendant was J.T.'s mother's boyfriend who was living with them at the time the allegations arose. J.T. provided a video-taped statement to the police on August 27, 2016, in which he reported seeing the defendant assault his mother and in which he recounts the defendant assaulting him and smashing his phone when he attempted to call 911 to render aid to his mother. J.T. was 11 years old at the time of the allegations and at the time he gave his video statement.

[3] The Crown brings application pursuant to section 540(7) of the Criminal Code for an order admitting into evidence the transcript and audio video recording of the statement of J.T. (Item A on this application). The Crown does not oppose an order pursuant to section 540(9) of the Criminal Code permitting cross examination of J.T. If the s. 540(7) application is not successful the Crown advises that in the alternative it will then seek an order admitting J.T.'s statement pursuant to section 715.1 of the Criminal Code.

[4] The Crown also seeks an order pursuant to section 486.2(1) of the Criminal Code permitting J.T. to testify via closed circuit television. The defense submits that the use of closed circuit television in this case is inconsistent with the proper administration of justice and that a screen is the appropriate testimonial accommodation which should be used.

SECTION 540(7)

[5] The admission of evidence pursuant to section 540(7) is a discretion the court may exercise provided that the information sought to be tendered is credible or trustworthy. The evidence sought to be adduced must meet a prima facie threshold of reliability. R v Francis, [2005] O.J. No. 2864 (S.C.J) para 28.

[6] The test for admissibility has been defined as evidence that has: "a prima facie air of reliability to allow a court to consider it as evidence, not sufficient to base a conviction upon, but rather to warrant consideration as to whether there is some evidence for a jury to properly consider at trial." R v McCormick [2005] O.J. No. 290 para 34.

[7] This threshold for admissibility is not a high burden and the Crown need not establish the ultimate reliability of the statement for it to be admitted.

[8] In cases where statements have not been admitted pursuant to section 540(7) courts have found patent issues with aspects of the credibility and reliability of the statement and/or the witness. Some examples have included circumstances where a witness had a criminal record for offences of dishonesty, where the witness attempted to recant or repudiate the statement, or where the witness admitted to perjury. R v Kirkpatrick (2011) O.J. No. 6722 para 37.

[9] I would also add to this list instances where there were manifest problems with the video or written recording of the statement and/or the manner the statement was taken with regard to leading questions. McCormick, supra; R v I. (S.P.) (2005), 2005 NUCJ 3, 193 C.C.C. (3d) 240

ANALYSIS

[10] Officers Oscar Montoya and Stafford Simpson testified as to their involvement in taking the video-taped statement of J.T. on August 27, 2016. Both officers testified that they made no promises or threats or inducements to J.T. and that J.T. appeared physically and mentally well at the time he gave the statement. Officer Montoya described J.T. as soft spoken, quiet, intelligent, mature and a little nervous at first but appearing to be more comfortable as things went along. He also described J.T. as very upset.

[11] Officer Montoya testified that he had no contact or conversation with J.T. before taking the statement.

[12] Officer Simpson testified that he met J.T. for the first time in the lobby of the police division just before the statement began. He testified that although he does not recall the specific details of their conversation or have it noted, he recalled that he generally discussed the interview process with J.T. in order to put him at ease and did not discuss the allegations with him before taking his statement.

[13] Officer Simpson was the lead officer in taking this statement. Officer Simpson verified that the recording of the statement is complete and accurate, and that it is a continuous recording with no edits or deletions.

[14] The defense submits that in eliciting information from J.T., Officer Simpson used leading questions during the taking of the statement. I disagree.

[15] I note that the defense's first concern about a leading question does not arise until page 21 of the transcript at line 631, after J.T. had already recounted the substance of the events which form the basis of the charges. In reviewing this portion of the transcript I find that the question posed by Officer Simpson at this juncture was a question posed to clarify an earlier response provided by J.T. about which hand the defendant used to push his mother.

[16] The defense argues that Officer Simpson lead J.T. into discussing past allegations of assaultive behaviour by the defendant. Specifically, the defense submits that Officer Simpson's question about whether J.T. had seen the defendant hit his mother in the past is a leading question. (Item A – page 29, line 871)

[17] I disagree.

[18] Firstly, the question posed does not suggest an answer. Secondly the question posed by the officer arises logically from a prior response from J.T. during which he volunteered information to the officer that his mother had told him that assaultive behaviour by the defendant had happened: "before a lot of times". (Item A - page 28, line 829)

[19] It would have been negligent of the officer in these circumstances not to have followed up with J.T. in respect of past incidents of violence. In my view Officer Simpson conducted this follow up in a non-suggestive open ended manner.

[20] Neither Officer Montoya nor Officer Simpson had experience in interviewing children and taking statements at the time of their dealings with J.T. Officer Montoya testified that he had conducted or assisted with approximately 7 to 10 witness interviews but had not received training in respect of taking statements. Officer Simpson testified that this was his first interview of a child witness.

[21] Despite this inexperience I find that the interview of J.T. was conducted in a measured, non-leading fashion and that the statement meets the test of threshold reliability for admission pursuant to section 540(7).

[22] Although Officer Simpson did not formally caution J.T. or provide an explicit explanation to him of the consequences of telling lies there were circumstances in place during the statement which provide guarantees of its trustworthiness.

[23] Firstly Officer Simpson did ask J.T. at the outset of the statement if he knew the difference between a truth and a lie. Officer Simpson also advised J.T. that he was to tell the truth and J.T. acknowledged that he understood. (Item A – page 3, lines 64 to 68)

[24] I agree with the Crown's submissions that the nature and timing of this exchange would have sufficiently impressed upon J.T. that he was obliged to tell the truth. This is particularly so given: J.T.'s age and level of maturity, that J.T. was aware that he was speaking to police officers in a police station, and that the statement was being recorded.

[25] The recording of the statement is clear and of good quality and the statement was taken proximate to the events. J.T. provided the details of his observations in a spontaneous, forthright manner without prompting from the officers.

[26] I am satisfied that J.T.'s statement is admissible pursuant to section 540(7).

SECTION 486.2(1)

[27] The defense does not challenge the mandatory nature of the order permitting testimonial accommodation where a witness is under the age of 18. However the defense submits that J.T. should be required to give his evidence behind a screen in the courtroom as opposed to via closed circuit television outside of the courtroom. (hereinafter CCTV)

[28] The court has no discretion to dictate the form of testimonial accommodation unless the aid requested will interfere with the proper administration of justice or compromise trial fairness. R v T. (S.B.) (2008) 2008 BCSC 711, 232 C.C.C. (3d) 115 (B.C.S.C.); R v W.V. [2016] O.J. No. 684

[29] The proper administration of justice requires that the court obtain a full and candid account of the evidence while also ensuring that counsel have the opportunity to cross examine comprehensively and effectively in order to challenge the witness's account.

[30] The defense relies on the decision in R v Wight (2011) O.J. No. 3982, in support of its position that the use of a screen is more consistent with the proper administration of justice in that it necessitates the physical presence of the witness in court.

[31] In Wight, supra, the complainant was 15 years old. The defense submitted that the Crown had not justified the use of closed circuit television as there was no explanation as to why the complainant needed that level of accommodation. The defense also pointed to a difficulty posed in using CCTV as documents had to be put to the complainant in cross examination which would make the use of the CCTV impractical. The defendant argued that the physical presence of the witness in the courtroom was consistent with the administration of justice and the ability to make full answer and defense. The Crown's application to use CCTV was not successful on these bases.

[32] Since 2011, when Wight was decided, the use of technology in the courtroom has progressed exponentially. Defendants in many jurisdictions across the province appear regularly by video for adjournments and guilty pleas. The use of video link to obtain evidence from witnesses who are outside of the jurisdiction has also increased. Courts have recognized and accepted that virtual presence can be akin to physical presence in the courtroom if the technology is adequate.

[33] In contemplating how testimonial aids may potentially interfere with the proper administration of justice at least on a minor scale I note that the use of the screen can at times be cumbersome and awkward. The physical object placed in front of the witness has the potential of being a distraction. Its physical placement may inhibit counsel's positioning when questioning the witness as well as the witness' position in the witness box. At times the defendant may be required to enter or leave the courtroom after everyone is in place or it may be necessary to usher the witness past the defendant, flanked by victim witness support personnel, in order to avoid incidental contact with the defendant.

[34] The use of CCTV obviates the need for these cumbersome and sometimes time consuming interruptions. Further, in my experience, the witness's reaction to the questioning is more visible to all parties with the camera trained on the witness' face. Even if documents or photographs have to be shown to the witness, as was the case in Wight, supra, that can be accomplished effectively with the use of technology and without the need for the witness' physical presence in the courtroom.

[35] I find that the use of CCTV in the circumstances of this case is the preferable method to obtaining a full and candid account from J.T. given J.T.'s age, his relationship to the defendant and the nature and circumstances of the allegations.

[36] These factors lead to a common sense inference in the circumstances of this case that J.T. would be more comfortable and candid in his account if he provides his evidence outside the courtroom and not in close proximity to the defendant.

[37] The fact that no extrinsic evidence has been called by the Crown in support of its request to use CCTV is not crucial to my determination in light of the common sense inferences available from the balance of the evidence called on this application. Further, this form of accommodation will allow the defendant to communicate with counsel while watching the testimony in compliance with section 486.2(5) of the Criminal Code.

[38] In considering the issues raised by the defense I find that there is nothing in these circumstances which suggests that the use of CCTV would interfere with administration of justice.

[39] The use of CCTV to receive the evidence of J.T. is permitted in this case.

Date: October 6, 2017

Signed: Justice Sandra Bacchus