Court Information

Ontario Court of Justice

Date: 2019-07-15

Court File No.: Brampton 18-7917

Between:

Her Majesty the Queen

— and —

Kulwinder Mattu

Before: Justice M.M. Rahman

Heard: May 16, 2019

Reasons for Ruling Released: July 15, 2019

Counsel

Christina Sibian — counsel for the Crown, applicant

Mitchel Engel — for Kulwinder Mattu, defendant/respondent

Notice

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.

Reasons for Ruling

RAHMAN J.:

1. Overview

[1] The defendant is charged with sexual assault and sexual interference. The complainant in this matter is A.B. She was 11 years old at the time of the alleged offences. A.B. is from British Columbia. She was visiting family in Ontario at the time of the alleged offences. A.B. is now 12 years old and still lives in B.C.

[2] The Crown has applied under s. 714.1 of the Criminal Code for an order permitting A.B. to testify by video link. Alternatively, the Crown has applied under s. 486.2(1) for an order permitting A.B. to testify outside of the courtroom by means of closed-circuit television.

[3] The respondent opposes the video link application. While the respondent does not oppose the s. 486.2(1) application, he says that his lawyer should be permitted to examine A.B. from inside the closed-circuit television room, rather than from the courtroom. In short, the respondent's position is that A.B. should be present so that defence counsel can cross-examine her in person and within the same room.

[4] These reasons explain why I find that A.B. should be permitted to testify remotely from B.C.

2. The Video Link Application

2.1. Factual Basis for the Application and Parties' Positions

[5] For the purposes of this application, the parties agreed on the following facts. The Ministry of the Attorney General will pay for A.B.'s (and a parent's) travel and accommodations, because A.B.'s family cannot afford the expense. A.B. is also having difficulty coping with the aftermath of the alleged assault and barely talks with anyone without her parents being present. Her parents believe that travelling to Ontario for the trial would cause more stress for her and they do not feel comfortable with it. Finally, if the application is granted, A.B. will testify remotely from the courthouse in A.B.'s hometown.

[6] The Crown says that based on A.B.'s personal circumstances, it is appropriate to allow her to testify remotely by video. Crown counsel, Ms Sibian, says that it will be a "huge emotional encumbrance" for A.B. to travel across three time zones to stay in a hotel for two days to testify at this trial. Ms Sibian notes that the court's view of A.B. will be by video in any event, since the defence does not oppose the Crown's application to have the complainant testify outside the courtroom.

[7] The respondent opposes the application and says that all of the criteria in s. 714.1 weigh against allowing A.B. to testify by video link. Respondent's counsel, Mr. Engel, says that A.B.'s concerns about testifying are no different than any other witness who would testify in a case like this. Moreover, though there is a cost associated with A.B. travelling here to testify, it is not a significant cost. Finally, Mr. Engel notes that A.B.'s evidence makes up the whole case for the Crown. Because she is the main Crown witness, it is all the more important that she be present at trial. As explained above, Mr. Engel is asking that he be allowed to cross-examine A.B. from within the closed-circuit television room if she does not testify by video. He says it is always desirable for counsel to be in a witness' presence to observe demeanour and facial expressions as the witness testifies.

2.2. Factors to Consider

[8] Section 714.1 permits a witness in Canada to testify by video link if the court finds that it is appropriate. The provision lists the following three factors that a court must consider when deciding whether to testimony by video link:

(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.

[9] These three factors are not exhaustive. In R. v. Young, Wright J. expanded upon the three statutory factors with the following list of eight, non-exhaustive factors to consider in deciding whether to allow video link evidence:

(1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross-examine that 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 various police and technical witnesses who testify to routine matters with respect to exhibits and the like 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, personal life and the like;

(6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion;

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

(8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial.

[10] It is important to note that Wright J. did not list these factors in order of importance. Nor are the factors meant to be assessed by counting how many favour the order versus how many weight against it.

2.3. Analysis and Conclusion

[11] I conclude that it is appropriate to allow A.B. to testify by video link. This is not a case of an adult witness being asked to travel to testify. While cross-country travel may not be difficult for an adult, A.B. is not an adult. She is 12 years old. She is being asked to travel across the country, stay in a hotel for two nights, and testify at a criminal trial. The prospect of travelling cross-country to testify is not an insignificant event for a young child, especially one who already displays reticence talking to people without her parents present. I accept her parents' concern that travel will increase the amount of stress she faces. Therefore, her location and personal circumstances take on a very significant role in deciding whether an order is appropriate.

[12] I am not concerned that the video link will interfere with either the court's ability to assess A.B.'s evidence, or the defendant's right to make full answer and defence. Modern video technology should allay any concern that a witness' virtual presence is that much different from a witness' actual presence. Given that anyone with a smartphone and an internet connection can speak clearly with someone on the other side of the world, I can infer that the video technology to be used in this trial will be of a similar quality. Neither the court's ability to assess the witness' evidence, nor counsel's ability to cross-examine the witness, will be hampered by the witness not being physically present. Since A.B. will be testifying by video even if she is in Ontario, the court's ability to assess the witness will not be any different than if she testifies by video link. Also, I do see how defence counsel's inability to be in the same room as A.B. will impact on his right to make full answer and defence. The video will make A.B.'s face fully visible in court. It will display her mannerisms and demeanour.

[13] Moreover, insofar as the concerns that assessing witness credibility by video is more difficult because the witness' demeanour is not as visible, it is also important to consider the role that demeanour actually plays in credibility assessments. While a court can consider a witness' demeanour in assessing credibility, the case law is replete with warnings about overreliance on demeanour evidence in making such assessments. Witnesses come from different backgrounds. They have different personalities. The court, and counsel, see a witness for a brief slice of time, usually with little to no baseline with which to compare the witnesses' demeanour at certain points in their testimony. I echo the following comments of Mcaulay J. in R. v. Turner:

[12] As to the assessment of credibility, sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying. In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err.

[14] In any event, as I have already said, video permits a court to see a witness' face. A.B.'s demeanour will be visible. And as my colleague Duncan J. observed in R. v. Allen, when a witness testified by video, the court has the benefit of seeing the witness's full face from a frontal view, rather than in profile as is typically the case. Allowing A.B. to testify remotely will not impair the respondent's ability to make full answer and defence. Therefore, the fact that she is the central witness against the respondent does not weigh as significant in the balance as the concern about having her travel thousands of kilometres across the country to testify in Brampton.

[15] Finally, this is not a case where A.B.'s physical presence in Ontario will assist with her being able to review exhibits during her testimony. Counsel agree that, except for her video recorded statement that the Crown will be tendering under s. 715.1, A.B. will likely not be reviewing any exhibits.

[16] Having determined that an order under s. 714.1 is appropriate, it is, strictly speaking, not necessary for me to decide the location of counsel when examining the witness. However, since I heard argument on the matter, I will explain my conclusion on that issue as well.

3. The Subsection 486.2(1) Application

[17] Because A.B. is under 18 years of age, this court must allow her to testify from outside the courtroom (by means of closed-circuit television), unless allowing her to do so would interfere with the proper administration of justice.

[18] Subsection 486.2(1) is silent about the location of counsel when a witness testifies from outside the courtroom. Although the respondent in this case does not take issue with the presumptive order under s. 486.2(1), he does say that he should be permitted to conduct his examination from within the closed-circuit television room. While Mr. Engle accepts that the location of counsel is within a trial judge's discretion, he argues that the presumption should be that counsel is in the same room as the witness being examined. As he argued on the video link application, he said that being in the same room as the witness permits counsel to make eye contact with the witness and observe the witness' mannerisms as she testifies.

[19] Ms Sibian says that the presumptive nature of the order is a recognition that children will have some level of anxiety and stress from testifying. Allowing a witness to testify outside the courtroom is a means of not re-traumatizing a witness who may have been the victim of a crime. She says that there is no real value for counsel to be within the room, especially since the witness' face will be visible by video.

3.1. The Law Regarding the Placement of Counsel

[20] Putting s. 486.2(1) aside, counsel's location in the courtroom while examining witnesses is within the discretion of the trial judge. Trial judges have an inherent power to control the conduct of the trial, including the manner in which counsel examine witnesses. That includes where in the courtroom counsel stand when examining a witness. For example, there would be nothing preventing a trial judge from requiring counsel to examine witnesses from the lectern and not move about the courtroom, or approach the witness box, without prior permission.

[21] Subsection 486.2(1) is silent about whether counsel should be in the same room as the witness while testifying. However, as Sproat J. observed in R. v. Seaward, the language of s. 486.2(5) appears to at least contemplate a situation where counsel is in the same room as the witness because it refers to arrangements being made for "the accused, the judge or justice and the jury to watch the testimony," and for the accused to be permitted to communicate with counsel while watching the testimony. I have not been provided with any authorities that have held that this language is determinative or creates a presumption that counsel must be in the same room as the witness. Indeed, as Sheard J. concluded in R. v. Belem, "there does not appear to be a uniform practice about the location of cross-examining counsel," and "s. 486.2 does not presume or require that the cross-examining lawyer be present in the room with a witness who is testifying outside the courtroom."

[22] I agree with that conclusion. Ultimately, the question about the location of counsel falls within the trial judge's discretion. In exercising that discretion, the trial judge should consider both the truth-seeking function of the trial, as well as the court's responsibility to ensure the fairness of the trial.

[23] Although I do not have any specific evidence about how A.B. will feel about testifying in the same room as the lawyers, I do have evidence about her reticence in speaking to people. I also note, as Sproat J. did in Seaward, that the closed-circuit television room is not a large room, and counsel will necessarily be closer to the witness when examining her than they would be in the courtroom. Further, as I have said above about the video link testimony, counsel being in the witness' immediate presence is not necessary to ensure a fair trial, and examining the witness remotely will do nothing to infringe his right to make full answer and defence. Counsel will be able to see the witness clearly on a monitor in the courtroom and will have ample ability to notice her demeanour.

[24] Consequently, had it been necessary to decide this application alone, I would have found that A.B. could testify remotely by video outside the courtroom, with counsel examining the witness from inside the courtroom. The practical effect of such a ruling would permit A.B. to testify from B.C. because s. 486.2(1) does not specify where outside the courtroom the witness must be when testifying remotely.

4. Conclusion

[25] A.B. will be permitted to testify remotely by video link from B.C.

[26] At the hearing of the application, the parties did not address any conditions that they wanted the court to attach to the s. 714.1 order. I assume that is because there is no dispute about the circumstances of the video link testimony. If there are any points of disagreement between counsel, they may arrange a hearing on any such issues in advance of the trial date.

Released: July 15, 2019

Justice M.M. Rahman