WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

Section 110 — IDENTITY OF OFFENDER NOT TO BE PUBLISHED

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 111 — IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 129 — NO SUBSEQUENT DISCLOSURE

No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

Section 138 — OFFENCES

Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: August 24, 2017

Court File No.: Collingwood Y160303

Between:

Her Majesty the Queen

— AND —

N.S., a young person

Before: Justice Carlton

Heard on: August 8, 2017

Reasons for Judgment released on: August 24, 2017

Counsel

Shannon Curry — counsel for the Crown

Scott Thomson — counsel for the defendant N.S.

Ruling on Motion

Carlton J.:

Background

[1] The defendant (and respondent on the motion) N.S. is charged with the sexual assault of L.P. between January 1, 2008 and December 31, 2009.

[2] N.S. was born in 1992 and is now 24 years of age. At the time of the allegations N.S. was 15 to 17 years of age. The complainant L.P. was born in 1998 and is now 19 years of age. At the time of the allegations L.P. was 9 to 11 years of age. The application materials suggest that the time period starts some years earlier but no application to amend the information has been made.

[3] I am advised that the allegations include acts of oral sex and other acts that would constitute sexual assault. The defendant and the complainant were together during the relevant time as a result of the defendant's mother being the babysitter for L.P.

[4] L.P. gave a statement to Det. Cst. Buttigieg of the Huronia West O.P.P. in June 2016. This gave rise to the charges against N.S. and his trial is now set to commence in the youth court on August 29 and September 1, 2017.

[5] Prior to the trial the Crown has brought an application under s.486.2(2) for an order that L.P. be able to give his evidence by closed circuit television (CCTV). Alternatively, the Crown seeks an order, again under s.486.2(2), that L.P. be allowed to give evidence using a screen.

Evidence on Motion

[6] The evidence on the motion consists of an affidavit of the investigating officer D.C. Buttigieg as well as evidence agreed to by counsel and conveyed to the Court at the motion.

[7] Det. Buttigieg spoke to L.P. by phone on July 19, 2017. During that call L.P. conveyed to D.C. Buttigieg that he is terrified of N.S. L.P. stated that N.S. "controlled him for half his life and that he would not be able to testify if he was in the same room as N.S."

[8] At the motion it was agreed that the evidence is that during the years between the end date of the time period of the allegations until the charge was laid, that N.S. and L.P. lived in the same neighbourhood and would see each other on occasion without incident. N.S. and L.P. had contact with each other earlier on June 17, 2016 prior to L.P. giving a statement to D.C. Buttigieg on the same day.

Section 486.2 of the Criminal Code

[9] Sections 486.1 through s.486.7 of the Criminal Code set out a comprehensive scheme of procedural and evidentiary measures intended generally to encourage the reporting of offences and to mitigate some of the effects on complainants of participating in a criminal trial.

[10] Section 486.2 now reads as follows:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room 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 that the order would interfere with the proper administration of justice.

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

(2.1) An application referred to in subsection (1) or (2) 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.

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;

(b) the witness' mental or physical disabilities, if any;

(c) the nature of the offence;

(d) the nature of any relationship between the witness and the accused;

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

(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(f.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence;

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

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

(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) 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 the testimony.

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).

[11] Section 486.2(1) sets out the test for witness who is under the age of 18 (at the time he or she testifies) or a witness "who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability". Such applications shall be granted "unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice".

[12] L.P. is now 19 years of age so s.486.2(1) does not apply in this case.

[13] Section 486.2(2) applies to all other witnesses. On application by the prosecutor or of the witness the judge "may" order CCTV or a screen if "of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice".

[14] Section 486.2(3) then sets out nine matters that can be considered in deciding whether to grant the s.486.2(2) order.

[15] These provisions were amended in July 2015 as part of the legislative provisions bringing into force the Canadian Victims Bill of Rights. The previous version of s.486.2(2) set out a stricter test. It required that the judge be "of the opinion that the order is necessary to obtain a full or candid account from the witness of the acts complained of".

[16] The caselaw provided by the applicant Crown addresses only the predecessor section. In reviewing those cases it should be borne in mind that Parliament has intended to lower the threshold for making a s.486.2(2) order from one of being "necessary to obtain a full and candid account" to merely "facilitating the giving of a full and candid account".

[17] At the same time, the current s.486.2(2) adds a second part to the test of "or would otherwise be in the interest of the proper administration of justice". While this also expands the test to provide an alternate basis for the granting of the order it does underline the fact that any order must be consistent with the proper administration of justice.

Purpose of s.486.2

[18] The provisions in s.486.2(2) to allow for the use of a screen or CCTV for adult witnesses (except those who do have a mental or physical disability that may cause difficulty in communicating evidence to the court) was first set out in 2005 amendments to the Code.

[19] The leading cases on the use of testimonial aids are in relation to earlier versions of what is now s.486.1(1) dealing only with the use of a screen or CCTV for child witnesses. With that important distinction, however, the earlier cases do shed light on the nature of s.486.2(2).

[20] In R. v. Levogiannis, [1990] O.J. No. 2312 (C.A.), the Ontario Court of Appeal upheld the decision of the trial judge to allow a 12 year old complainant to testify with the use of a screen at a trial on a charge of sexual interference. The appellant argued that "he had a right to the complainant's unobstructed view of him while the complainant testified" (at para. 23). This is sometimes referred to as the defendant's right to be confronted by the evidence.

[21] The Court of Appeal decision discusses cases from a number of common law jurisdictions and courts in this country in which either a screen or CCTV were allowed by the trial judge in cases involving child witnesses. In general terms, these decisions find that the use of a screen or CCTV is permissible so long as the witness is present, that cross-examination can occur and that trier of fact can observe the demeanour of the witness.

[22] The Court of Appeal found no s.7 Charter violation. Morden A.C.J.O., in speaking of whether there is a right of the defendant to be in the sight of the witness, stated as follows (at para 42):

Accepting that it is a right, of a kind, I do not think that it can be said to be an absolute right, in itself, which reflects a basic tenet of our legal system. It is a right which is subject to qualification in the interests of justice.

[23] This decision was upheld by the Supreme Court of Canada (, [1993] 4 S.C.R. 475). L'Heureux-Dube J, writing for the Court stated (at para. 21):

In my view, the main objective pursued by the legislative enactment presently challenged is to better "get at the truth" by recognizing that a young child abuse victim's evidence may, in certain circumstances, be facilitated if the child is able to focus his or her attention on giving testimony, rather than experiencing difficulty in facing the accused.

[24] I note that Levogiannis was a consideration of the provisions of the Code directed at child witnesses and that both the Court of Appeal (at para. 71) and Supreme Court (at paras. 14-15, 39-40) decisions put great emphasis on the need to amend traditional court procedures to accommodate the specific needs of children. Section 486.2.(2), allowing for adults to use testimonial aids, was only proclaimed in 2005 and has always had a stricter test for the use of a screen or CCTV by adults.

CCTV vs. Screen

[25] A secondary issue arose in the application as to whether it is open to the court to order the use of testimonial aid and not the other. The Crown, in its application, seeks an order that L.P. testify by CCTV and, in the alternative, that he testify using a screen. This raises the issue as to whether it is possible that the evidence would satisfy the test for use of a screen but not the use of CCTV.

[26] Both sections 486.2(1) and 486.2(2) provide for an "order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused". The requirements of the option of testifying outside the court room are set out in s.486.2(5) and require that an order can only be made if "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 the testimony".

[27] The two options, the screen or CCTV, are presented as equal options with no criteria as to when one option would be chosen over another assuming both are available.

[28] There are relevant distinctions between the two different testimonial aids. Arguably, for adult witnesses the use of a screen has less impact on the trial process than the use of CCTV.

[29] When a screen is used, the judge and the counsel have a direct view of the witness. With CCTV, the trier of fact is dependent on the quality of the audio and video to assess demeanour. CCTV might approach but never equal the information conveyed from observing live testimony.

[30] In the section 1 analysis in Levogiannis, Morden A.C.J.O stated (at para. 73):

It could be argued that the option of the closed circuit television, also provided for in s.486.2(2.1) and (2.2) is less intrusive on the right to a fair hearing. This may be so, in some respects, but it may be more intrusive on the right to have the trier of fact have a proper view of the demeanour of witnesses.

[31] Demeanour evidence has to be approached with some caution. That said, the Supreme Court in R. v. S.(N.) 2012 SCC 72, [2012] 3 S.C.R. 726, has more recently underlined the importance of being able to observe a witness to make credibility assessments. That case sets out the test for when it is necessary for a witness to remove a niqab so that the trier of fact can observe the face of the witness when testifying. McLachlin C.J. stated (at paras. 22 and 27):

As a general rule, witnesses in common law criminal courts are required to testify in open court, with their faces visible to counsel, the judge and the jury. Face-to-face confrontation is the norm, although not an independent constitutional right: R. v. Levogiannis (1990), 1 O.R. (3d) 351 (Ont. C.A.), at pp. 366-67, aff'd , [1993] 4 S.C.R. 475 (S.C.C.). To be sure, long-standing assumptions of the common law can be displaced, if shown to be erroneous or based on groundless prejudice — thus the reforms to eliminate the many myths that once skewed the law of sexual assault. But the record before us has not shown the long-standing assumptions of the common law regarding the importance of a witness's facial expressions to cross-examination and credibility assessment to be unfounded or erroneous.

On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence.

[32] To the extent that CCTV diminishes the ability to see the face of the witness and to assess expressions and demeanour as compared to evidence given directly from the witness box it is to be less preferred than the use of a screen.

[33] Using CCTV means that the witness does not need to attend inside the court room. For a child witness using a screen, simply being in a large formal room in the presence of the judge, counsel and the public can itself be intimidating and may prevent the reception of a full and candid account from the witness. This consideration may favour the use of CCTV as opposed to a screen for child witnesses.

[34] Adult witnesses, however, are presumed to be able to give evidence in a public court room. Further, for an adult witness, the formality of the court room should underline the importance of the court process and the need to tell the truth. The use of a screen is designed to prevent the witness from seeing the defendant while still having the witness testify in open court.

[35] For section 486.2(2), then, it is arguable that the use of a screen rather than CCTV for adult witnesses allows for an increased ability to assess demeanour and does not engage the concern, specific to child witnesses. The Crown, in its application, seeks an order that L.P. testify by CCTV and, in the alternative, that he testify using a screen. This raises the issue as to whether it is possible that the evidence would satisfy the test for use of a screen but not the use of CCTV.

[36] To that extent, in my view, the Court may exercise its discretion to find that the test in s.486.2(2) has been met as it relates to a screen but not to CCTV.

Test for Admission in s.486.2(2)

[37] As discussed above the test since 2015 in s.486.2(2) for the use of a screen or CCTV is whether the order "would facilitate the giving of a full and candid account of the acts complained of". Counsel have not provided any cases in which this new version of the test is discussed. The cases filed address the former test that the use of the testimonial aid be "necessary" to obtain a full and candid account.

[38] The recent amendments to s.486.2(2), and, in particular, the removal of the necessity requirement, are remedial and intended to lead to a more liberal use of testimonial aids for adult witnesses.

[39] "Facilitate" is defined in the Canadian Oxford Dictionary as "make (an action, result etc.) easier, less difficult or more easily achieved".

[40] On its face, then, the test is a low one. Does the use of a screen or CCTV make it easier to give a full and candid account?

[41] That said, the test requires a connection between the use of the aid and the actual evidence of the witness. The test is directed to whether a full and candid account is facilitated by the use of the testimonial aid. Merely showing that the witness will be less nervous or more comfortable in giving evidence using the testimonial aid does not meet the test. Many witnesses, even experienced professional witnesses, may be uncomfortable at giving evidence in court. Most witnesses are nonetheless able to provide a full and candid account without the need for a testimonial aid.

[42] There must be a real and tenable connection to the proposed use of the testimonial aid and the expected quality of the evidence to be given by the witness. There must be a real prospect that the use of the aid will allow for the giving of a full and candid account when otherwise the evidence will be of lesser quality.

Analysis

[43] The onus is on the applicant Crown to show that the use of a screen or CCTV would facilitate the giving of a full and candid account by L.P.

[44] The evidence on the motion is quite limited. It consists of comments made by L.P. to Det. Cst. Buttigieg during a single phone conversation on July 19, 2017 in which L.P. relayed that he was "terrified" of N.S. and that N.S. had "controlled him for half his life and the would not be able to testify if he is in the same room" as N.S.

[45] The motion materials sets out some details of the allegations which include allegations of oral sex and other acts constituting sexual assault occurring when N.S. was 15 to 17 of age and L.P. was 9 to 11 years of age. The summary of the allegations does not include any suggestion that the alleged incidents occurred in the context of a trust relationship.

[46] The other evidence at the motion was that N.S. and L.P. have long resided in the same neighbourhood, have continued to have some incidental contact since the end of the charge period and last saw each other earlier on the same day that L.P. first spoke with Det. Cst. Buttigieg. In noting this evidence, I acknowledge that the previous contact is on a much different footing than appearing in court as a complainant against the defendant.

[47] The cases make clear that L.P. does not need to testify on the motion. The evidence need not take any particular form but must have some reasonable relevance to the test for the use of the testimonial aid (see R. v. M.(P.), [1990] O.J. No. 2313 (C.A.)).

[48] The application sets out the statements of L.P. to Det. Cst. Buttigieg that L.P. "would not be able to testify if he is in the same room" as N.S. On its face, this suggests that the use of a screen or CCTV would facilitate the giving of a full and candid account by L.P.

[49] That said, there is little supporting evidence that might allow the court to assess this claim. There is no evidence touching on:

• Whether any concerns were relayed by L.P. when he first spoke to Det. Buttigieg in 2016.
• Whether there is any evidence that would demonstrate a basis for being "terrified" of N.S. beyond the allegations themselves.
• What steps, if any, have been taken to understand the concerns expressed by L.P. and whether they are based on any incorrect assumptions about the trial process.
• What steps otherwise have been taken by the prosecution to prepare the witness to give evidence.

[50] I also note that the only evidence on the motion comes from the investigating officer. I accept the evidence as it is given but note that there is no evidence from anyone not directly connected to the investigation. I appreciate that s.486.2 orders can be made on the basis of evidence from the investigating officer alone (see R. v. Clark, [2007] O.J. No. 1553 (S.C.)). In other cases cited by the applicant Crown there is evidence from an expert (psychologist in Levogiannis) or someone connected to witness preparation (Director of local Sexual Assault Treatment Centre in Xie, [2014] O.J. No. 6394 (C.J.)). Such evidence provides a perspective on the witness independent of the investigating agency.

[51] In assessing the matters in s.486.2(3) I note the following:

• L.P. is an adult of 19 years of age. He is just over the age at which there would be a presumption in favour of the use of a testimonial aid.
• L.P. is a complainant alleging a significant sexual assault by N.S. upon him as a child.
• N.S. is approximately six years older than L.P. and is alleged to have committed the offence as a teenager.
• There is no suggestion that N.S. was in a position of trust.
• There is no evidence that L.P. needs the order for his security or to protect himself from intimidation or retaliation.

[52] On the basis of the evidence given on the motion I cannot determine whether the statements made by L.P. are a result of nervousness or trepidation about giving evidence in a public court or whether they show a real fear of the defendant such that the use of a testimonial aid would facilitate the giving of a full and candid account. I cannot determine whether the comments made to Det. Cst. Buttigieg are an immediate reaction to being reminded of the need to testify or whether they are part of a more enduring emotional condition that affects L.P.'s ability to give a full and candid account of the evidence.

[53] The onus is on the applicant and in this motion the Crown has not shown that there is a real prospect that the use of the testimonial aid will allow for the giving of a full and candid account when otherwise the evidence will be of lesser quality. The application is denied.

[54] The Crown is not prevented from renewing the application based on new evidence or other developments in the case. I acknowledge that it is "self-defeating" (see Levogiannis para. 90) to require the witness to testify without the testimonial aid to see if the test in s.486.2(2) has been met but the applicant has not met the applicable test at this stage.

Released: August 24, 2017

Signed: Justice T. Carlton