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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2018-05-29

Court File No.: Barrie 3811-998-17-3283

Parties

Between:

Her Majesty the Queen

— AND —

Xavier Wilson

Before: Justice Carlton

Heard on: May 9, 2018 in Barrie

Reasons for Judgment released on: May 29, 2018

Counsel

L. Senko — Student-at-Law for the Crown

K. Miles — Counsel for the Accused

Decision

CARLTON J.:

Application

[1] The Crown has brought an application under section 714.1 to have its central witness on a charge of sexual assault testify by videolink. The trial is set to commence on June 12, 2018 in Barrie.

[2] The alleged offence date is May 20, 2017 when the complainant, S.D., resided in this jurisdiction.

[3] The application materials state that the charge involves an allegation that Mr. Wilson sexually assaulted S.D. at a party. The materials state that the complainant was asleep at the time of the assault and that the complainant's boyfriend witnessed the assault.

[4] S.D. now resides in Saskatchewan. The application seeks to have S.D. testify at the trial in the Ontario Court of Justice by videolink from Regina, Saskatchewan.

Section 714.1

[5] Section 714.1 reads as follows:

714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that 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.

Evidence in Support of the Application

[6] The Crown relies on two affidavits in support of the application.

[7] The first is from a staff member of the Barrie Crown Attorney's Office. It sets out that the cost for travel and accommodation is estimated at $815.00.

[8] The second is from an officer of the Barrie Police Service. It states that S.D. now resides permanently in Saskatchewan. It states that S.D. is of modest means and that taking the time away from work to testify would be financially difficult. Lastly, it states that S.D. has a "health issue" and that travel would be difficult.

[9] In submissions the Crown stated that it had materials in its possession supporting the existence of a health issue but could not disclose them absent a hearing under s.278 of the Criminal Code.

Position of the Applicant

[10] The applicant Crown submits that the test in section 714.1 has been met. The witness S.D. now lives out of province. Travelling to Barrie to testify would be a significant inconvenience in time and in cost to her. S.D. reports a medical issue, not specified, that makes travel particularly onerous for her. This addresses the first two criteria in s.714.1.

[11] As to the last criterion in s.714.1, the applicant further submits that a videolink is an acceptable substitute for in court testimony. This procedure is employed in other contexts and does not impair the right of the defendant to cross-examine the witness or make full answer and defence. Such an approach is supported by the medical condition of the witness.

Position of the Respondent

[12] The respondent Mr. Wilson submits that his ability to make full answer and defence would be undermined by the use of a videolink in this case. The charge is one where the credibility and reliability of S.D. is central to the case. The respondent submits that the videolink impairs his ability to confront the witness and for the court to make a full assessment of the credibility of S.D. The charge is a serious one and issues of costs and/or inconvenience cannot dictate a result that might impact his ability to make full answer and defence.

[13] The defendant submits the evidence regarding any medical issue of S.D. is conclusory and devoid of any information that would allow the court to assess it on the grounds of the "personal circumstances of the witness".

[14] Lastly, the defendant submits that the application does not address the means by which the videolink would occur. There is no evidence about the location for the videolink or of the picture and audio quality to be expected. There is no evidence on the manner in which S.D. would be monitored to ensure the integrity of her evidence. This would include, for example, the means by which it could be ensured that she followed any direction of the court or did not have access to any materials not known to the court during her evidence.

Analysis

[15] I will address this last objection of the defence at the outset. I do accept that the application is silent on most of these procedural or technical issues. That said, I will assume for purposes of the application that these issues can be satisfactorily resolved. The Crown would be required to have S.D. testify "in the virtual presence of the parties and the court" and to put in place adequate safeguards to ensure the integrity of her evidence. Measures would need to be in place such that documents, transcripts or video could be put to the witness in a seamless manner by videolink.

[16] More broadly, the parties agree that the credibility and reliability of S.D. is at issue in the trial. In my view this is central to the resolution of this application. The witness S.D. is the primary or one of the primary witnesses for the Crown.

[17] In my view the ability of Mr. Wilson to make full answer and defence requires the attendance of S.D. in court before the trier of fact. I therefore dismiss the application.

[18] I make this finding for the following reasons:

(i) Importance of Viewing the Witness

[19] I appreciate that courts are cautioned not to place undue reliance on the demeanour of a witness in making credibility findings (see R. v. DeHaan (2002), 155 O.A.C. 358 (C.A.)).

[20] At the same time, demeanour remains an element to be considered by a trier of fact in assessing credibility. In R. v. S.(N.), 2012 SCC 72, [2012] 3 S.C.R. 726, the Supreme Court 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.

[21] I appreciate that the Supreme Court noted (at paragraph 23 of N.S.) that testifying using closed circuit television under s.486.2 of the Criminal Code is not inconsistent with these principles. That said, a videolink diminishes, to some degree, 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. As such, it is to be less preferred than the use of a videolink. As stated by Ellies J. in R. v. D.P., [2013] O.J. No. 2232 (S.C.) at para. 7, a videolink is an imperfect "substitute" for in court testimony:

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.

(ii) Effect on Cross-Examination

The principal vehicle for the defendant to test the credibility of the complainant is through cross-examination. The dynamic of that encounter is changed when a witness testifies by videolink as opposed to being in court. The effect of the "face-to-face confrontation" described in N.S. can be blunted when questions are mediated through a videolink. This has the potential to deprive the trier of fact of information critical to the determination of credibility. This information could be favourable or unfavourable to the witness. To the extent that it could deprive the trier of fact of information unfavourable to this witness it has the potential to affect the defendant's ability to make full answer and defence.

(iii) Absence of a s.486.2 Application

[22] The application has been brought only under s.714.1 and not, additionally, under s.486.2. Section 486.2 allows for the use of a screen or of closed circuit television which for these purposes is virtually identical to the use of a videolink.

[23] If the grounds for a s.486.2 application were established than it may well be less onerous for the Crown to meet the test in s.714.1. If closed circuit television is being used then the physical location of the witness is less relevant assuming that the technology and witness integrity issues can be addressed (see R. v. Belem, 2017 ONSC 2213, [2017] O.J. No. 1882 (S.C.)).

[24] Such is not the case here. There is no evidence that the use of the videolink is required to "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" as set out in s.486.2(2) of the Criminal Code. This is the test for closed circuit television for a witness in the position of S.D.; an adult witness who is not within a class of persons who "may have difficulty" in communicating evidence by "reason of a mental or physical disability" (in s.486.2(1)).

[25] I would add that, in my view, s.486.2 does not establish that the use of closed circuit television (or a videolink), is by virtue of that section, the equivalent of in-court viva voce evidence. Instead, it carves out exceptions to the general rule of in-court evidence only when it can be presumed that closed circuit television would "facilitate a full and candid account" (in s.486.2(1)) or when a such a finding is supported by evidence (in s.486.2(2)). In such cases, the "norm" of a "face-to-face confrontation" is moderated by the need of the court to receive a full and candid account. Such an approach serves the "truth-seeking" goal of the trial process (see R. v. Levogiannis, [1993] 4 S.C.R. 475 (S.C.C. at para. 24)).

(iv) Evidence of Health Issue

[26] The Crown relies in part on an assertion in the police affidavit that the complainant is suffering a health issue and that travel would be difficult for N.S. It is very difficult for the court to assess the strength of this claim. There is no medical documentation to provide any detail or context.

(v) Weight Given to Cost and Convenience Issues

[27] Issues of cost and convenience are important. The court must be mindful of the cost to the public (or a defendant) of bringing a witness to court. The court must be mindful of the inconvenience to a witness of attending for court proceedings.

[28] These considerations loom much larger if the witness is not central to the case or one for which credibility is not a critical issue (see D.P., at para. 8). The cases provided by counsel suggest that cost is less telling when the witness is central to the case.

Conclusion

[29] Section 714.1 creates a useful tool to efficiently use technology to put evidence before a court. It should be embraced where doing so does not affect the right to make full answer and defence. In cases where the application relates to a witness whose credibility is central to the case I note the judgment of Parret J. in R. v. Chapple, [2005] B.C.J. No. 585 (S.C.) at para. 52 as follows:

The proper consideration of such an issue must begin with a consideration of the witness' evidence. Where, as here, there are serious issues of credibility to be determined involving the credibility of a witness, a court, should, in my view, be very reluctant to deprive the trial judge of seeing the witness physically present in the courtroom.

[30] I find, therefore, that it would not be "appropriate in all the circumstances" to allow S.D. to testify by videolink. The application is dismissed.

Released: May 29, 2018

Original signed by

Justice Carlton