Court Information

Ontario Court of Justice

Date: 2017-11-08

Court File No.: Brampton 3111 998 17 1307

Parties

Between:

Her Majesty the Queen

— and —

Karnail Singh

Judicial Officer and Counsel

Before: Justice G.P. Renwick

Heard on: 06 November 2017

Reasons for Judgment released on: 08 November 2017

Counsel:

• S. Scully, counsel for the Crown
• J.D. Lopez, counsel for the defendant Karnail Singh

Application for Video Link Evidence

Reasons for Decision

RENWICK J.:

Introduction

[1] The Respondent is charged with one count of sexual assault that is alleged to have occurred during an international flight from Delhi, India to Toronto, Ontario. The Respondent is alleged to have touched the complainant, who was unknown to him, over the clothing above her vagina, as she slept in an adjacent passenger seat.

[2] The prosecutor applies under ss. 714.2 and 714.3 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 ("Criminal Code") for an order permitting witnesses who reside outside of Ontario to testify via video link. The Respondent opposes the Application primarily on the basis that there is an unfairness in permitting the prosecution's witnesses to testify from their home jurisdictions while requiring the Defendant, who resides in Alberta, to attend his trial in person. The Respondent also opposes the Application on the basis of a lack of evidence that there would be any inconvenience to the prosecution's witnesses to travel to Brampton, Ontario for his trial.

[3] At the start of the hearing of this Application, the Respondent conceded that it would not be inappropriate for the in-flight service director who resides in the United States to testify via video link, pursuant to s. 714.2 of the Code.

[4] The Respondent takes no issue with the affidavit evidence presented with respect to the costs to bring the two out of province witnesses to Ontario. The approximate costs to bring the complainant from Newfoundland (including flight, hotel, and meals) was estimated at $2200, while the same costs to bring the secondary witness from Alberta was estimated at $3500.

[5] For the reasons that follow, I am dismissing the Application made in respect of the complainant and granting the Application for the third-party witnesses.

Analysis

[6] As a preliminary point, it appears that the Application in respect of the two Canadian witnesses was brought under the wrong section of the Code. The Respondent did not contest the applicability of s. 714.3 of the Code (which according to the heading preceding the section applies to "AUDIO EVIDENCE – WITNESS IN CANADA"), but in consideration of the written grounds for the Application and the oral submissions made by the prosecutor, it appears that the Applicant relies upon s. 714.1 of the Code, instead. Section 714.1 of the Code permits a court to use video link technology to receive the testimony of witnesses from any other Canadian jurisdiction. Given that it appears that this was simply a typographical error in the Application, and in light of the fact that the Respondent took no issue with the section under which the Application was made, I have considered the Application on its merits.

[7] The decimal subsections of 714 of the Criminal Code provide for alternative technological mechanisms for the reception of testimony given by witnesses who testify outside of the courtroom. Section 714.1 may be used to accommodate defence or prosecution witnesses where "it would be appropriate in all the circumstances, including

a) the location and personal circumstances of the witness;

b) the costs that would be incurred if the witness had to be physically present; and

c) the nature of the witness' anticipated evidence."

[8] The Defendant opposes the Application primarily on the basis that it would appear unfair to require the Respondent to attend his trial in person while permitting the prosecution's witnesses to testify by video link. Secondarily, the Respondent submits that there is an insufficiency of evidence with respect to the inconvenience to the out of town witnesses to properly assess the necessity for the Application. Lastly, it was suggested that if the witnesses require their statements to refresh their memories, or if counsel needs to point to specific passages during cross-examination, the reception of the evidence will be hindered because of the limitations of using video technology. I agree that practical logistics are very real concerns that ought to be addressed in this type of Application.

[9] While there are several cases that discuss similar applications, I have not been provided with any binding authority, nor have I found any cases that direct how I must exercise my discretion in the determination of this Application.

[10] In R. v. Burden, [2017] O.J. No. 940 (O.C.J.), Mr. Justice Wakefield of this Court dismissed a similar application. Justice Wakefield was referred to R. v. Turner, [2002] B.C.J. No. 2576 (B.C.S.C.), which concerned a similar motion under s. 714.2 of the Criminal Code to permit the virtual appearance of a witness in the United States. Justice Wakefield also considered R. v. D.P., [2013] O.J. No. 2232 (S.C.J.), a decision of Mr. Justice Ellies, who also dismissed a similar pre-trial application. Justice Ellies was primarily concerned with the truth-seeking function of the court and the limitations imposed by the use of this technology:

But the accused, the Crown and the witness are not the only participants in the trial process. The ability of the court to fulfil its truth-finding function is also important. Unlike the situation at the preliminary inquiry, credibility will be a major issue at the trial. While demeanour, by itself, is an unreliable way to determine credibility, it is nonetheless one facet of the way in which the court in a case like this must do so. In my view, when it comes to demeanour, there is no substitute for being near the witness as she testifies. It is no accident that witness boxes are placed next to or near the judge and jury in almost every courtroom across the country.

This consideration suggests that there may be a distinction between witnesses depending on their role, the issues at play, and the significance of the evidence to advance the case of the party seeking to rely upon the provision.

[11] In Burden, the complainant, who resided in Nova Scotia, was the sole prosecution witness. Justice Wakefield considered the value of virtual presence and the use of technology in addition to the value of hearing and observing the demeanor of witnesses who testify in court. In the end, in light of the lack of an evidentiary foundation to justify resort to s. 714.1 of the Code, Justice Wakefield dismissed the application to permit the witness to testify by video link.

[12] Like Justice Wakefield, I am being asked to infer witness inconvenience and I have been provided with little information respecting the technology to be used. I have been advised that there are new monitors in our courtrooms and the resolution is more than adequate. Also, the prosecutor has indicated that because the two proposed witnesses will testify from actual courtrooms, there are mechanisms to protect the integrity of the proceedings and the reception of this evidence (court staff will be present in the courtrooms with each witness). Several questions remain unanswered: what is the resolution of the video link; how large will be the screen used to provide the virtual presence of the witness; how does the Crown anticipate showing documents to the witness; and what actual inconvenience will there be to each witness to attend the trial in Ontario.

[13] Recently, Madame Justice Sheard considered a similar application made during a jury trial in Ottawa: see R. v. Belem, 2017 ONSC 2213, [2017] O.J. No. 1882 (S.C.J.). In that case, the prosecution called two witnesses (one of which was a psychiatrist) to testify about the cost, inconvenience, and medical condition of the witness upon whose behalf the application was brought. The evidence revealed that the witness had fears for his physical safety, there were concerns for his mental well-being and physical condition, and there was evidence adduced respecting the costs of travel and accommodations to bring the witness from British Columbia to Ontario. In that case the court also considered the defence concession to permit the witness to testify outside the courtroom using closed-circuit television, if counsel could be in the same room with the witness.

[14] Madame Justice Sheard considered similar applications in R. v. Leblanc, 2014 NSPC 116, 361 N.S.R. (2d) 1, and R. v. Young, 2000 SKQB 419, 201 Sask.R. 158 and referred to eight factors identified by the court in Young, in addition to the statutory factors found in s. 714.1. Although Belem is not binding, I find the analysis helpful.

[15] As did the court in Belem, I will consider the eight factors suggested by Mr. Justice Wright in Young. They are:

(1) Will a video appearance by the witness impede or impact negatively on the ability of counsel to cross-examine the witness?

(2) The nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel. For example, police and technical witnesses who testify to routine matters with respect to exhibits and other matters that would not attract any particular objection on the part of the accused's counsel;

(3) The integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom;

(4) The distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance;

(5) The convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, or personal life;

(6) The ability of the witness to attend from an area that makes it difficult for travel or travel in a reliable fashion;

(7) The cost of having the witness attend in person; and

(8) If the witness is effectively beyond the control of the court in the trial jurisdiction, and whatever extraterritorial powers a judge may have over the person.

[16] The first two factors relate to the cross-examination of the witness and the potential hurdles for cross-examination if the Application is granted. As anyone who has ever attended a meeting by video conferencing is aware, the better the technology, the better the experience. In this case, there is some distinction between the two prosecution witnesses: one is the complainant, while the other is a secondary witness who can report on the demeanor of the complainant and the Respondent within moments after the alleged assault.

[17] Counsel for the Respondent did not suggest any inherent anticipated difficulties in cross-examination of the witnesses by the use of video technology, but given the import of their respective testimony, the cross-examination of the complainant is likely more critical to the defence of the allegation than the cross-examination of the secondary witness. If there is any delay in the video technology that could affect the cross-examination, this may compromise a critical component of the Respondent's defence. Without precise information to satisfy the court that the technology will not negatively affect the cross-examination of the complainant, at least with respect to her testimony, these factors favour denying the Application.

[18] The third factor favours the use of the technology. In each case, given that the witness will testify from a fully staffed courtroom in another province, I am satisfied that the integrity of the process will be maintained.

[19] The fourth and fifth factors concern witness inconvenience. I have been given no evidence or information to determine what, if any, impact the refusal of the Application would have upon each witness. That said, it is obvious that there would be some disruption to the lives of the witnesses to travel to and from Ontario to testify here. This requires that the witness spends at least three days away from their home and their usual routine (one day for each leg of the trip and a separate day to testify). Again, I have no information what, if any, impact this may have upon the family of the witness (are there vulnerable dependants that could be affected) or their occupation. These are not insignificant considerations which militate toward granting the Application.

[20] The sixth factor plays no role in this case.

[21] The costs to the state are not insignificant, but given the serious nature of the allegation, the costs do not seem prohibitive or incommensurate. Without any information that the prosecution's budget for these types of expenses is (or, is about to be) exhausted, this factor is neutral. This is especially so, when I consider that the Respondent will personally bear similar costs to attend his trial as the state will expend to bring the witness who would also travel here from Alberta.

[22] Given the provisions of ss. 702 and 703 of the Code for the issuance of subpoenas and warrants for those evading service, and the lack of any evidence to suggest that either witness would not attend this jurisdiction if subpoenaed, the eighth factor would seem to be neutral.

[23] In this case, simply applying the eight factors suggested by other courts yields an indeterminate result. If the video technology is of high quality and there are no technical issues that might impede defence cross-examination, the use of this technology should have no effect upon either side's presentation or defence of their case. However, there are questions about the technology sought to be used that remain unanswered.

[24] The Application before the court is also unique in that the Respondent lives outside of Ontario. The Respondent has a genuine perception that the prosecution will receive a benefit to which he is not entitled, if the Application is granted. This Application not only implicates trial fairness (will cross-examination of the primary prosecution witness be affected by the use of technology), but also the appearance of fairness. I find that this submission tips the balance in the Respondent's opposition to the Application, slightly.

[25] Given that there are some questions that remain concerning the quality of the technology, and the lack of an evidentiary basis to conclude that it would be inappropriately inconvenient to require the complainant to testify in person, I am not prepared to grant the Application in relation to the complainant.

Conclusion

[26] Section 714.1 of the Criminal Code is a valuable mechanism to reduce the expenses associated with bringing out of town witnesses to testify in person, where technology exists to accommodate the virtual appearance of the witness during a trial. The section requires a balancing of factors to reduce cost and witness inconvenience in appropriate cases. The section is not mandatory, nor applicable merely because it exists. That said, it is not a high threshold to establish the utility and applicability of the section in appropriate cases.

[27] In consideration of the statutory factors and all of the other considerations referred to above, the Application is granted to permit the secondary witness to testify by the use of video technology from a courtroom outside of the province. On consent, the Application pursuant to s. 714.2 of the Code in respect of the American witness is also granted. The Application to lead the anticipated testimony of the complainant by video technology is dismissed.

Released: 08 November 2017

Justice G. Paul Renwick