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:

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.

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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

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:

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: July 20, 2020

Court File No.: 19-Y190647

Between:

Her Majesty the Queen

— and —

K.S., a young person (or "young persons")

Before: Justice B. Weagant

Heard on: July 15, 2020

Reasons for Judgment released on: July 20, 2020

Counsel

Robert Wright — counsel for the Crown

Craig Brannagan — counsel for the Crown

Althea Coke — counsel for the defendant K.S.

Decision

Weagant, B. J.:

Application for Remote Testimony

[1] This is a ruling on an application by the Crown to have 8 witnesses give their evidence in this matter via videoconference from locations outside of the courthouse, pursuant to ss. 714.1 and 714.2 of the Criminal Code. Counsel for the defence is not opposing the application for 6 of the witnesses, but opposes the application with respect to Albert K. and Ali H.

[2] For what I say below, I am dismissing the Crown application. The parties were notified of this last week so that arrangements could be made to notify the witnesses before the evidence commences. These are the reasons that were to follow.

The Charges

[3] The accused, K.S., a young person within the meaning of the Youth Criminal Justice Act, is charged with second degree murder, accessory after the fact, aggravated assault, assault with a weapon and 3 further counts of assault simpliciter.

[4] The charges all stem from stabbings that occurred at a party held in a fraternity house/party rental at 22 Madison Avenue in the City Toronto last October 31, 2019. It is common ground that Jacob A., an adult, also charged with these same offences, was wielding the knife used in the stabbings. The degree of participation of K.S. will be the subject of eye-witness testimony and other evidence, which I have been informed is video taken at the time.

Witness Evidence

Witness Albert K.

[5] The nature of the anticipated evidence of Albert K. is that he was present at the party and captured some of the events on video with his mobile phone. He will testify that he witnessed a struggle to remove Jacob A. and K.S. from the premises once the violence began. A knife was removed from Jacob A. and given to a bouncer during this removal process. Albert K. alleges that K.S. was hitting out at people while they were trying to remove her from the premises.

Witness Ali H.

[6] Ali H. is expected to testify as follows. He witnessed the stabbing which led to the death of F N. Ali H. was outside of the Madison Ave. residence that night with some friends. He witnessed Jacob A. roaming around outside the residence threatening people who were looking at him or trying to film him. Jacob A. chased some people across the street toward a parking lot behind the Madison Pub but then returned to the front lawn area of 22 Madison Ave. He started to exchange words with the deceased, F.N., when an onlooker yelled that Jacob A. had a knife. F.N. backed up and then tried to get away, but was chased by Jacob A. During the chase, Jacob A. fell several times and it is expected that Ali H. will testify that K.S. helped him back to his feet. During this chase, Jacob A. was verbally threatening to stab F.N.

[7] It is expected that Ali H. will testify that F.N. picked up a trash can and threw it towards Jacob A. Jacob A. grabbed him by the shoulder and tried to stab F.N., unsuccessfully. F.N. ran down a laneway beside 23 Madison Ave. with both Jacob A. and K S. giving chase. F.N. was ultimately cornered in the lane and stabbed in the chest. F.N. fled again, and was pursued by Jacob A. and K.S.

[8] Ali H.'s anticipated evidence is that he followed F.N. to his car, who was complaining of breathing problems and was holding his chest.

The Crown Application

[9] The Crown makes application for these 2 witnesses to testify remotely by videoconference under s. 714.1 of the Criminal Code:

Audioconference and videoconference — witness in Canada

714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear personally;

(c) the nature of the witness' anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused's right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

[10] This section confers wide discretion on the trial court.

[11] In the present application, both of the witnesses reside in Toronto and are physically able to attend court to give evidence.

[12] The only evidence supporting this application is an affidavit of the officer in charge of the case, Detective Constable A. Purvis. He says that both of these witnesses have advised him of "… his preference to testify via video conference." The sole reason offered by the Crown to justify videoconference testimony was the public health crisis related to Covid 19.

Analysis

[13] For obvious reasons – this matter being among the first trials to be held following the reopening of the Courts on July 6, 2020 – there is no caselaw on point. I was provided with 17 cases, mostly dealing with the issue under a previous version of s. 714.1, where the included 'circumstances' comprised a shorter list than the current version. None of these cases dealt with a fact situation similar to that before the court, namely a public health crisis.

[14] Prior caselaw involving s. 714.1 is helpful in that I take two basic principles that run through that law which provide a starting point for my analysis.

[15] I start with the basic proposition that s. 714.1 is a remedial provision that allows the court to facilitate the evidence of a witness who seeks to give testimony other than in the usual manner. (See R. v. Denham, 2010 ABPC 82).

[16] A second guiding principle I distill from the caselaw is that the witness seeking the accommodation of ss 714.1 must have a reason to invoke the section. It is not the law of Canada that witnesses have the option to give virtual evidence simply because they would prefer to do so. Implicit in this principle is the recognition that the best evidence – in-person testimony – remains the default standard for taking evidence in a criminal proceeding. (See R. v. Heynan, 2000 YTTC 502)

[17] I now turn to the application of the s. 714.1 test to the facts of this case. Is the Court of the opinion that it would be appropriate having regard to all the circumstances, including those set out in the section, that the witnesses should give their testimony by videoconferencing?

[18] The Crown argues that the Covid pandemic represents a significant personal circumstance. The witnesses are entitled to accommodation because they have expressed a preference. In other words, at this point in time, any witness automatically has adequate reason to seek accommodation under s. 714.1.

[19] Our Court of Appeal took judicial notice of what the pandemic means to all Canadians. In R. v. Morgan, 2020 ONCA 279, the Court said:

We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

[20] A differently constituted panel of the Court adopted this in R. v. Lariviere, 2020 ONCA 324.

[21] I, too, am in a position to take judicial notice.

[22] The presence of the pandemic affects every person in this country. Safety precautions are indicated for most forms of human endeavor.

[23] While every Canadian faces the basic challenges that the health crisis presents, we are aware that the possible impact of the virus on certain segments of society may substantially increase the risk for those citizens. For example, the elderly or people with pre-existing conditions, generally do not fare as well as others should they become infected.

[24] That is not the case here. No evidence was called about an enhanced personal risk faced by either of these witnesses.

[25] I am also entitled, in my view, to take judicial notice of the fact that the court has been closed since late March and was opened on July 6. Considerable person-hours have been expended by Ministry employees and court administration and the judiciary itself, in order to achieve the reopening in a way that reduces the risk of transmission to people entering the courthouse. Without listing the exact measures that have taken place in my courthouse, which include enhanced sanitation, distancing controls, population number controls, and plexiglass barriers, the government ministries responsible have endorsed the safety plan for our building. Employees have returned to work for the first phase of the reopening, and urgent and priority trials are allowed to proceed. These facts have been published on justice websites and through Notices to the Profession.

[26] It is not within my jurisdiction to accept or reject (on behalf of a witness) the safety plan put in place by the government, unless there is evidence relating to some enhanced personal risk that a witness may face, which is not the case here.

[27] Section 714.1 was not written with the pandemic in mind. I cannot interpret its provisions to mean that because of current heightened health concerns, every witness can give remote testimony simply for the asking. There is a presumption to be inferred by the opening of the courts that the cases will proceed in the ordinary manner.

[28] In my view, the evidence presented in this case falls short of what would be needed to even begin the balancing of "all the circumstances". The entire evidence is that the witnesses would prefer to give their testimony in another way. Neither witness claims individual necessity due to personal health concerns. Neither witness was produced to be examined on their personal practices. Are they working with other people, and how close? Do they use public transportation? Is it possible they are young people who have been playing fast and loose with social distancing rules, something commonly covered in the media? Do they have personal support obligations to a vulnerable person, or do they live with someone with heightened health concerns? Would they simply be more comfortable giving evidence in the familiar atmosphere of their home?

[29] Any evidence along these lines could help a court to be satisfied, one way or another, if there is a good reason to begin the analysis under ss 714.1.

[30] A lot of the examples I cite above involve personal information that witnesses are not generally bound to divulge. In that regard, it may be that a simple sworn affidavit stating the presence of heightened health vulnerability would suffice to move to a complete balancing of all of the circumstances. However, the privacy concerns may be subject to limits. I consider the case of R. v. Chehil, 2014 NSSC 421. In that case it was a defence application to have 4 witnesses testify remotely. The Nova Scotia Court of Appeal ruled that while the defence has no obligation to disclose anything to the Crown concerning what evidence it may call at trial, an application under s. 714.1 behooves the defence to discharge the burden of providing the court with sufficient evidence to justify the order requested as the section requires the Court to consider the nature of the anticipated evidence.

[31] The total absence of evidence about the circumstances of these witnesses is enough to dispose of this application by dismissing it.

[32] However, if I am erring in deciding that there is a fundamental lack of an evidentiary basis to support an order under s. 714.1, I will proceed to analyze all known circumstances, including those listed in s. 714.1.

Detailed Analysis of Section 714.1 Factors

(a) The Location and Personal Circumstances of the Witnesses

Both witnesses live in Toronto and both will make themselves available to give testimony should this application be dismissed.

I know very little more about the personal circumstances of the witnesses, except that they live in a city that is considered the provincial epicenter of the pandemic.

(b) Costs of Requiring Attendance

I have no evidence that there are any cost considerations over and above what is generally required of a witness.

(c) The Nature of the Witnesses' Evidence

In R. v S.D.L., 2017 NSCA 58, a decision of the Court of Appeal of Nova Scotia, the Court proposed guiding principles for Nova Scotia trial judges when considering s. 714.1 applications. Although the decision predates the amendments which added to the list of 'considerations', the persuasiveness of the reasoning on credibility and witnesses stands. Chief Justice Macdonald writes (at paragraph 32):

1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice.

2. That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice.

3. When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.

4. The more significant or complex the proposed video link evidence, the more guarded the court should be.

5. When credibility will not be an issue, the test should be on a balance of convenience.

6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross examination be required, that could be done by video link.

7. When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited.

8. Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify "in a courtroom…or at the offices of Victims' Services…". To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.

[36] Both of the witnesses in this case have eye-witness testimony to give. Certainly, credibility is in issue.

[37] The Crown has submitted three cases where a witness of central importance was granted leave to testify remotely, in spite of the fact credibility was in issue.

[38] In R. v. McLean, 2000 YKTC 64, Justice Faulkner allowed a complainant in a sexual assault case, who was located in Nanaimo, to give remote testimony. Evidence was adduced about the detrimental mental health effects in having the complainant return to the jurisdiction to give live evidence. She was undergoing a recovery process that was described by her attending physician as "fragile and precarious". The concern was that she would relapse if she returned to the village of Mayo in the Yukon where she became a substance abuser. Evidence was tendered to support these facts.

[39] In R. v. Husbands, [2018] O.J. No. 7112, Justice B. O'Marra granted an application for a witness of central importance to the case, where credibility was clearly in issue. Justice O'Marra accepted evidence that the witness' role as mother to 4 children would be significantly impacted, should she have to come to Toronto from her undisclosed location. However, Justice O'Marra further noted that she would get the same relief under the vulnerable witness section of the legislation (s. 486.2) due to safety concerns.

[40] The last case cited, R. v. Turner, [2002] B.C.J. No. 2576, involved an application under s. 714.2 for a witness living in Washington State, U.S.A. The test there is reversed: the order shall be granted unless it is shown that it would be contrary to the principles of fundamental justice. This case is distinguishable on this ground alone.

[41] In each of the cases cited there was a strong and specific factual foundation in evidence to support the order.

[42] Applying the principle in S.D.L. (supra), the fact that the evidence of the witnesses will be tested for credibility means that the compelling circumstances justifying videoconferencing testimony should be present.

[43] I pause here to note that in the present case, the testimony of an expert from forensic services was the subject of this same Crown application and was not opposed. This make sense given that credibility is of diminished importance; it is the reliability of the expert's evidence that is in issue.

(d) The Suitability of Location from where the Witness will give Evidence

[44] The witnesses here wish to give evidence from a private room in their residences.

[45] The Crown argues that an assessment of the suitability of the location involves a consideration of the following factors: will the witness face the same level of solemnity offered by a courtroom and is the location free from outside influences and interruptions (see R. v. Osmond)? To this list I would add that there should be evidence that the proposed technological platform is sufficient to do the job. In R. v. S.D.L. (supra), the Court of Appeal sent the matter back for retrial because of the apparent technical difficulties encountered during the remote testimony.

[46] The technology to be used in this case was not made an issue by Ms Coke during argument, so I will accept the Crown's submission that the technology chosen is up to the task.

[47] Where I differ with the Crown is in his submission that the necessary solemnity can be achieved through the dress of the witness, the fact there will be an oath or affirmation, and that the witness will see the other justice participants in the Courtroom. I disagree. My reasons are laid out below in the discussion of trial fairness.

(e) Nature and Seriousness of the Offence

[48] In spite of the fact that s. 714.1 applications have been successful in very serious matters, I would think that the collection of circumstances which favour remote testimony would have to be of increased gravity in serious cases. I regard the cases noted above where the application was successful in serious cases as being extraordinary.

[49] The young woman in this case faces one of the most serious charges in the Criminal Code. The nature of her involvement (as she did not wield the weapon) is the entire case for the Crown to prove. The importance of the eye-witness testimony is patently clear. To my mind, the circumstances of the witnesses – simply that they would prefer to give their testimony remotely because of unnamed health concerns, are insufficient to justify a departure from deeply established trial procedures.

(f) The Accused's Right to a Fair and Public Hearing

[50] I do not intend to refer extensively to the caselaw given me, because in my view much of the judicial discussion focusses on the superiority/inferiority of the available technology, what the trial judge thinks about trends in the use of technology in the courtroom and the effect of a virtual presence on the ability to cross-examine. In R. v. Allen, 2007 ONCJ 209, my colleague Justice B. Duncan made an extensive ruling based on his review of the caselaw at the time and his view of the 'right to confront witnesses' and the value of being able to cross-examine someone in person instead of virtually. He found little difference between a witness in the courtroom and one appearing with good technology when considering the potential prejudice to the accused's right to make full answer and defence.

[51] Whether or not I agree completely with this position is of no moment, as I intend to focus on other aspects of trial fairness. I think that by focusing on whether certain of the accused's fundamental rights are displaced, it is easy to forget other component parts of fundamental trial fairness.

[52] A fair trial encompasses much more than the Defendant's rights and expectations. To the extent that a right to a fair trial is embraced by the principles of fundamental justice, the concept of fairness must also reflect a diversity of interests, including the rights of an accused, as well as the interests of Society:

While the objective of the judicial process is the attainment of truth, as this Court has reiterated in L. (D.O.), supra, the principles of fundamental justice require that the criminal process be a fair one. It must enable the trier of fact to "get at the truth and properly and fairly dispose of the case" while at the same time providing the accused with the opportunity to make a full defence.

(R. v. Levogiannis, [1993] 4 SCR 475, per Madam Justice L'Heureux Dube at paragraphs 19 and 20)

[53] The Court's interest in trial fairness has roots in the search for truth. The public's interest in trial fairness includes a notion of accountability, in my view. In the context of the current motion, accountability would include one person's accountability to another, witness to accused.

[54] Accountability of one person to another is supported by features of the criminal justice process, including face-to-face interaction that has up until now largely taken place directly and in person. In addition, the physical and interpersonal context of the courtroom serves as a concrete cue and reminder of its importance and the gravity of any violations. As I hinted above, the solemnity of the court and its role to play in accountability and fairness cannot be reproduced in someone's living room.

[55] In contrast to the courtroom, interactions in virtual spaces, even when they are in real-time, remove people from one another and disconnect them from the court setting. In my view, this risks a diminution or dilution of the subjective sense of accountability that supports people's commitment to truth telling and we have no idea what impact it might have on the accuracy of recall, reliability, carefulness and therefore of testimony credibility.

[56] The United States Supreme Court summed up the issue perfectly in the case of Coy v. Iowa, 487 U.S. 1012 (1988). That case was about whether or not the vulnerable witness screen violated the accused's 6th amendment right, the so-called 'confrontation clause'. Justice Scalia wrote for the Court, ultimately holding that the witness screen did not violate a constitutional right. He first set out a history of the right to confront witnesses in western legal culture, tracing the right back to Roman times. He then turned to an examination of the role face-to-face courtroom testimony plays. He cited numerous examples of courts acknowledging the value of face to face confrontation and its importance, because it assists the court in its ultimate task of finding out the truth. After citing all the examples, Justice Scalia seems to take judicial notice of the notion that it is easier to lie behind someone's back than it is his to his face.

[57] My Court did not have the benefit of having this case during argument and I cannot adopt the holding or the reasons behind it because of that. I am not quoting Justice Scalia because I am persuaded by his reasoning. I quote him because his words sum up the issue for me – does the ability to confront witnesses in person benefit the accused and does it tend to ensure the integrity of the fact finding process? Ascertaining the truth for the purpose of proper disposal of the litigation is a central aspect of fairness.

[58] Currently, I do not share the enthusiasm of some of the proponents of a full embrace of virtual litigation. I would like to know more, one way or the other, about the risk to the truth-finding function of the court before declaring trial fairness, in the context of a s. 714.1 application, a completely settled issue. S. 714.1 does not declare the end of in-person testimony. It allows for limited exceptions. I part with other Courts that have dealt with this aspect of the balancing test, such as the Court in R. v. Hinkley, 2011 ABQB 567 at paragraph 14, when the Court summarily concluded:

There is no dispute the administration of justice remains unaffected by any lost opportunity for an accused to physically face a complainant or other witness.

[59] With respect, I think there may be a dispute.

[60] As a result, it is my view that this factor – trial fairness – is considerably more important to the balancing exercise than has been acknowledged by other trial court judges who have considered this. It weighs heavily in the balance for me.

[61] In short, when examining trial fairness for the purpose of s. 714.1 applications, the focus should not be the right to personal confrontation for the purposes of cross-examination. The focus should be on all that we don't know about witness accountability in the virtual context, and how this puts the truth finding function of the court at risk.

Conclusion

[62] When I consider all of the circumstances I conclude that there is no reason to allow this application.

[63] I am dismissing the application.

Released: July 20, 2020

Signed: Justice B. Weagant