Court File and Parties

Ontario Court of Justice

Date: 2020-07-28

Court File No.: Sault Ste. Marie 18-2620

Between:

Her Majesty the Queen

— and —

Jill Milliken

Before: Justice R. Kwolek

Heard on: July 21, 2020

Reasons for Judgment released on: July 28, 2020

Counsel

Stuart Woods — counsel for the Crown

Anthony Orazietti — counsel for the accused Jill Milliken

KWOLEK J.:

[1] Charges and Charter Application

[1] The accused is charged with a number of offences relating to impaired driving, over 80 and possession of marijuana. The defence has brought a Charter application relying on multiple breaches of the Canadian Charter of Rights and Freedoms.

[2] Crown Application for Remote Testimony

[2] An application has been brought by the Crown pursuant to section 714.1 of the Criminal Code for an order that three police witnesses be allowed to testify remotely rather than in person at the court house.

[3] A Charter voir dire has already commenced with one police witness, Officer Martin, completing her testimony on January 30, 2020 prior to the onset of Covid-19. This witness was the officer who pulled over the accused and charged her with the driving offences.

Brief Factual Background

[4] A dispatch was received from the Ontario Provincial Police communications department indicating that a driver was all over the road and a description of the vehicle was provided together with a license plate number. Officer Martin identified the vehicle and followed it for a period of time noting that it veered within its lane in a two-lane divided highway but did not cross either the lane markings or the fog line but remained in its lane at all times.

[5] The officer ultimately pulled over the vehicle and made an approved screening device demand. The accused registered a fail on the device and was brought to the police station for a breathalyzer. The breathalyzer technician has not yet testified in the voir dire. The vehicle was searched by two police officers, who have not yet testified, who found marijuana in the vehicle and charged the accused with possession of marijuana.

[6] The defence alleges breaches of section 7, 8, 9 and sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms as set out in their Charter application based on:

1. the lack of grounds of the officer for making the approved screening device demand;

2. the officer not advising the accused of the reason for her detention;

3. the failure of the officer to provide proper rights to counsel;

4. an unauthorized search of the vehicle during which the marijuana was discovered;

5. Officer Beitz questioning the accused about the marijuana found in her car without providing a further right to counsel;

6. the video recording of the accused in the cells while she was using the toilet without advising her that the cell was being video-taped and without providing her with any means of covering herself.

[7] The applicant, as a result of the alleged Charter breaches, requests that the evidence of impairment and results of the approved screening device, the intoxilyzer, as well as evidence of the marijuana possession be excluded pursuant to section 24(2) of the Charter and in the alternative seeks a stay of the proceedings pursuant to section 24(1) of the Charter.

[8] The matter is set to proceed for a continuation of the Charter voir dire including the testimony of up to three further police officers and potentially the testimony of the accused.

The Legislative Framework

[9] Section 714.1 was recently amended to expand the factors the court may consider in determining whether or not to grant the application being sought. The prior version of the section only included three factors and did not specifically include that a witness could testify by way of audio conferencing as included in the amendments. The legislation prior to the 2019 amendments read 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.

[10] The current section reads as follows:

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.

1999, c. 18, s. 95 2019, c. 25, s. 290

[11] The legislative factors to be considered by the court include: the location and personal circumstances of the witness. The location does not appear to be in issue as all the police witnesses are apparently available and live in the area. The Crown asserts that police officers are front-line workers and "arguably are at greater risk of catching and transmitting the virus". As a result, it is suggested that their presence in court will pose a potential risk to others present in the courthouse including Crowns, defence counsel, staff and the judiciary as well as anyone else who may be present in the courtroom and courthouse.

[12] The defence asserts that the courts have been equipped with plexi-glass, minimized attendances of individuals in the court room so that social distancing can largely be maintained and protective measures have been instituted which will mitigate any risk of Covid-19.

[13] The second enumerated factor, namely the cost of the officers testifying is not a significant factor for the court to consider.

[14] The nature of the witness' anticipated evidence is one of the factors relied on by the defence in opposing the application. The defence submits that the evidence of the police officers is highly contentious and they will be cross-examined relating to the Charter breaches alleged by the defence. The Crown asserts that the evidence of the police officers will relate to their actions and observations and what they did or did not do is not significantly in dispute. The main Crown witness and arresting officer has already testified in person prior to the Covid-19 pandemic with respect to most of the Charter breaches. She would have potentially been the officer whose credibility may have been most contested. The court will accept, for purposes of this application that credibility is in issue of the remaining witnesses.

[15] There was no evidence filed by the Crown in their application material relating to the suitability of the location from where it was proposed that the witnesses will give evidence.

[16] It was only during his submissions, that the Crown proposed that the testimony occur at the Ontario Provincial Police detachment in Sault Ste. Marie using computer and internet facilities available at that location.

[17] Counsel for the defence vehemently opposed this "evidence" being provided in submissions and suggested that the lack of information provided in the application relating to the suitability of the location was fatal to the application based on existing case law, and on that basis alone, the application should not be granted.

[18] The accused's right to a fair and public hearing will also be affected by the location and the quality of any audio and video transmission that is being proposed. If the quality of the audio and video is poor than the fairness of the hearing is compromised. No information was provided to the court in the application relating to such quality of the facilities, a factor that the defence claims should result in a dismissal of the application.

[19] The nature and seriousness of the offence is also an enumerated factor. An impaired driving charge and possession of marijuana charges are on the lower end of the scale of criminal charges. It does not appear that the accused's liberty is at stake given the nature of these charges. The court acknowledges that every offence is serious for the accused and a conviction for impaired driving may have serious collateral consequences for the accused including an effect on employment.

Covid-19 as a Factor

[20] The primary concern of the Crown is the current Covid-19 pandemic. It is likely that the Crown would not have sought an application under 714.1 if the state of emergency and public and personal health risk factors were not present as a result of the coronavirus.

[21] Justice Varpio in R. v. Cunningham, 2020 ONSC 2727, has taken judicial notice of the fact that the virus can be spread by symptomatic and asymptomatic people who harbor the virus and the virus can be lethal, in particular to the elderly.

[22] Johns Hopkins University has maintained a world map of countries and reported cases and deaths involving the Covid-19 pandemic. As of July 23, 2020, its website reported at 12:45 p.m. over 15 million cases worldwide and about 625,000 deaths attributed to Covid-19. The reported number of cases has continued to increase.

[23] According to the Johns Hopkins University website, as of July 23, 2020 the United States alone reported approximately four million confirmed cases of Covid-19 and over 143,000 deaths were attributed to the virus in the U.S.

[24] Canada has thus far fared much better than its southern neighbor with Johns Hopkins reporting, on the same date that Canada has confirmed approximately 114,000 Covid-19 cases and approximately 9000 deaths attributable to the virus.

[25] In Sault Ste. Marie and the Algoma district, an area having a population of over 100,000 people, there have been a total of 27 reported cases since March 2020. There is currently one confirmed active case, of those 27, in the district, and no one in the community has been hospitalized and no deaths have been reported in our public health region to date as a result of Covid-19. In the District of Algoma, we have one of the lowest, if not the lowest, rates of incidence of Covid-19 in reporting public health units in Ontario. We are a border city with the United States but our border has been essentially closed to non-essential travel between Canada and the United States since mid-March and it is uncertain when the border will re-open.

[26] In all of the area of Northern Ontario, Ontario Public Health has reported that as of July 23, 2020 there are only three reported active cases.

[27] Ontario has seen a downward trend in cases with approximately 100-200 cases being reported daily over the last several weeks, concentrated largely in the Windsor-Essex, Peel Region, Toronto and Ottawa areas according to Ontario Public Health records.

[28] In Ontario, the provincial government has taken an increasingly regional approach in directing when economies and stores and public spaces may be reopened. With an expansion of public contacts comes an increasing risk of further infections. As stores, places of worship and other public spaces are increasingly opened up to the public, there is an expectation that further cases of Covid-19 will occur unless further measures are taken to lessen the risk of spread. The expansion of services has been thus far accompanied by mandatory mask wearing in some public spaces as directed by regional and local public health units and communities. There has, as of yet, been no spike of increased Covid-19 cases in Ontario, but they have continued to decline.

[29] The courts, although not technically closed during the pandemic, have from a practical point of view been restricted to the public and to counsel from mid-March until July 6, 2020. Prior to July 6, 2020 urgent matters were dealt with remotely through audio or audio video remote transmissions. Different areas have been using different forms of technology in dealing with these remote hearings which generally did not involve trial matters. Some courtrooms have now been deemed by the authorities to be safe to re-open and in-person proceedings have commenced with counsel and parties now being permitted to attend at the courthouse in courtrooms. These courtrooms have been retrofitted with plexiglass, there has been a reduction of seating capacity in the courtrooms to help maintain physical distancing as well as the mandatory wearing of masks to mitigate the risk of transmission. Not all courtrooms are open and some of the provinces smaller courthouses are not yet available for in person hearings.

Legal Analysis

[30] The Crown is essentially relying on Covid-19 as the overwhelming and exceptional factor in favour of their application. The defence is not consenting to the section 714.1 application asserting that the "officers' evidence is contentious and there is no reason why the officers cannot attend."

[31] With respect to the Covid-19 factors, counsel for the defence asserts that courthouses have been retrofitted with safeguards that have mitigated the risk to an acceptable level. Counsel and witnesses will now begin to attend for trials and other matters. Some witnesses are expected to testify and the police should be expected to testify as well.

[32] The defence also points to the lack of cases of Covid-19 in Northern Ontario, and Sault Ste. Marie in particular, as a reason for not granting the application, asserting that the risk of transmission in this community, although present, is low.

[33] In addition, the lack of detail provided in the application regarding the suitability of the location and details regarding any audio–visual transmission, the defence claims is fatal to the application.

[34] It appears that credibility of the witnesses will in fact be in issue so that it is important for the court and the parties to adequately view and hear the witnesses.

Case Law

[35] The Crown cites a number of cases including the decision of Justice Condon, a fellow Ontario Court of Justice judge sitting locally, dated July 15, 2020 in R. v. Molland, 2020 ONCJ 322, in support of their application.

[36] Justice Condon similarly faced an application by the Crown relating to an application to have three police witnesses testify remotely. In that case, the learned application judge ultimately granted the application subject to certain terms and conditions that he imposed regarding such testimony. The testimony of those officers was from a location at the Sault Ste. Marie Police Service building.

[37] Although, Justice Condon acknowledged that the risk of transmission at the city of Sault Ste. Marie of Covid-19 appears to be low, he had this to say about the issue of risk of Covid-19 at paragraphs 76 and 77:

76. Court clerks and court reporters are positioned commonly within a few feet of any witness. The dais for judicial officers is also generally in close proximity to the location of a witness in the courtroom in order to facilitate the in-person hearing and seeing of a witness.

77. In the case of the officers who are the subjects of the application, there is a risk that any one of them has been exposed to the coronavirus in the Sault Ste. Marie community. That risk is low, given the ongoing limited number of coronavirus cases in the Algoma District. Low risk and no risk are not the same. It cannot be ignored by this court that Covid-19 is a potentially deadly virus. What is to be gained by potentially exposing Mr. Molland, defence witnesses, counsel, court staff, others working in the Sault Ste. Marie courthouse … when a suitable technological alternative, which does not impair or compromise … right to a fair trial, including the opportunity to make full answer and defence, is readily available?

[38] The Crown argues that the explicit language of section 714.1 grants a broad discretion to the presiding judge to grant the order being sought. The language speaks of appropriateness rather than necessity. The Crown further argues that the nature of the evidence sought to be tendered is appropriate to be dealt with by video testimony.

[39] The Crown asserts that the video testimony would not compromise the fairness of the process, citing the comments of Justice Johnson in R. v. DRD., [2007] O.J. No 1806, who stated: "…there is nothing by way of video link that could prevent cross-examination that would be appropriate to meeting the test of allowing the accused to make full answer and defence."

[40] Justice Allen in R. v. Lucas-Johnson, [2018] O.J. No. 2013, indicated that current video link technology "…is sufficiently sophisticated to capture a variety of non-verbal cues and expressions…". The court agrees that depending on the clarity of the transmission and the camera angle, a video link may in fact provide more definition and greater clarity of the witness' facial features and expressions than had the witness testified in person. However, the court also acknowledges that if the transmission is poor, that would in fact hamper the fairness of the proceeding.

[41] The testimony of witnesses by video has been allowed even pre-Covid in serious cases such as a home invasion in R. v. Belem, [2017] O.J. No. 6577, when the witness suffered from a medical condition and a severe social phobia; R. v. Dapena-Huerta, [2017] O.J. No. 6577, a case of a trial by judge and jury where the witness suffered from a condition that prevented her from leaving the home but where credibility was largely not in issue; R. v Husbands, [2018] O.J. No. 7112, where Justice O'Marra of the Ontario Superior Court allowed the application in a second degree murder trial where the safety of the witness was one of the concerns raised, and credibility was in issue.

[42] In R. v. Heynen, [2000] Y.J. No. 6, Justice Stuart of the Yukon Territorial court at paragraph 322 cited a number of factors and guidelines that should be followed when video evidence is ordered. He indicated that video should not be ordered simply because a witness would prefer to appear by video, but indicated there must be a good reason for video evidence to be ordered. He also noted that "recent advantages in technology solve most problems of the quality of the evidence received by video."

[43] The onus as to whether or not certain testimony can proceed by way of audio-video link must rest with the party requesting such a process, in this case the Crown.

[44] Defence relied upon R. v. S.D.L., 2017 NSCA 58, a decision of the Nova Scotia Court of Appeal. In that case involving charges of a sexual nature against a minor, the trial judge allowed the complainant and his mother to testify by means of video link. The appellate court acknowledged that trial judges have a wide discretion on this issue. In reviewing the case law, the court noted that:

delays between the transmission of questions and answers makes effective cross-examination difficult

… In many cases involving motions under section 714.1 the court has an opportunity to see the proposed video link in operation or makes an order conditional on a satisfactory test run.

[45] In addition, the Nova Scotia appellate court accepted submissions of counsel as being sufficient rather than requiring the evidence of the cost of witnesses in that case to have been included in an affidavit or in the application itself.

[46] The court set out the following principles that Nova Scotia judges should follow in determining whether or not to grant section 714.1 applications. These comments were made prior to the amendments in 2019.

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.

[47] In R. v. S.D.L, supra, there were significant difficulties with the testimony by video, as described by the appellate court, and the transmission was interrupted on a number of occasions which occurred at "inopportune times, and they occupy …23 pages of an 81 page transcript."

[48] In R. v. S.D.L., supra, the appellate court held that it was concerned that the trial judge allowed the process to continue in the face of the constant interruptions and ultimately determined that the appellant was denied an opportunity to make full answer and defence.

[49] In R. v. Petit, 2013 ONSC 2901, Justice Ellies of the Ontario Superior Court denied a Crown application to have a complainant witness testify from Brandon, Manitoba, rather than having to appear in person in North Bay, Ontario with respect to dated offences. Justice Ellies denied the Crown application ruling that the witness was the complainant in that case and her testimony was central and her credibility was crucial. Justice Ellies also commented that where reliability and not credibility were in issue, as in the case of most expert evidence, an order under section 714.1 may make sense.

[50] The defence also cited R. v. Mawick, 2017 ONCJ 492, a decision of Justice Renwick of the Ontario Court of Justice. In that case, there was a dearth of information relating to the examination site or safeguards that might be in place to reduce the risks of outside influences and the alleged cost of having the witness travel from British Columbia to Ontario to testify. It did not appear that credibility was a significant issue in that case. Ultimately, the judge was not persuaded to grant the section 714.1 application.

[51] Similarly, in R. v. Kervian, 2020 CarswellNfld 55, Judge Gorman of the Newfoundland Provincial Court denied an application under section 714.1. Although commenting that he thought the comments by the Nova Scotia Court of Appeal in R. v. S.D.L., supra were far too broad in limiting applications under 714.1, he quoted another Newfoundland decision, R. v. Rice, 2016 NLTD (G) 107, that "access to justice requires the courts to rely more and more on various technologies", including video link. In addition, Judge Gorman found that there was no evidence that the accused's right to a fair and public hearing would be negatively affected if the application was granted. The reason for the denial of the 714.1 application by Judge Gorman was the lack of information regarding the suitability of the location from where the witness would give evidence and the lack of any evidence as to the alleged circumstances of the offences.

[52] Defence counsel invites the court to dismiss the application on the basis that there was no information in the application regarding the location at all and the Crown sought to provide some limited information in submissions to the court that the officers would testify from the Ontario Provincial Police station.

[53] The Crown argues that the evidence being sought to be tendered is not largely dependent on the credibility of the officers but is rather dependent on whether their actions violated the Charter rights of the accused and sought to provide information in their submissions regarding the suitability of the test site.

[54] On the issue of the suitability of the location, the Crown I suspect expected the judge to take judicial notice of the Covid-19 circumstances. The courts have, for over three months, been relying on audio and audio-video conferencing to handle all of its matters in the absence of in person proceedings. The Crown invites the court to accept Justice Condon's analysis in R. v. Molland, supra and his directions to the parties to ensure that the location and circumstances surrounding the taking of remote evidence, did not compromise the accused's right to have a fair and public hearing.

[55] The Crown wishes myself as judge to find that although court services have now been expanded to allow for more proceedings, including trials, that the health risk of Covid-19 is such that, where ever possible, if the appearance of such witnesses to testify remotely is possible and does not compromise the right of the accused to a fair trial, then the court should allow such witnesses to testify remotely.

[56] With respect to the argument on the technical grounds that the application did not have details regarding the suitability of the location where the testimony is to occur, I think I can take judicial notice that during the Covid-19 shutdown, judges, staff, and in some cases police stations relied upon audio and audio-visual facilities to complete urgent criminal and family matters. Zoom and other platforms are now being used as a matter of course. Prior to Covid-19, in family proceedings, the courts used remote testimony for the purpose of hearing the testimony of a number of witnesses at trial. It was expected that the witness and counsel would arrange a test run of the location and equipment to confirm that the video link connection was satisfactory.

[57] Even if the technology is satisfactory, there are some circumstances where the equipment was not working properly or was not working sufficiently well to ensure that the testimony was conveyed properly. That was in fact the case in the Nova Scotia Court of Appeal decision in R. v. S.D.L., supra.

[58] Given the regular use of technology to deal with matters remotely during Covid-19 and given that the crown could have rectified their deficiency by simply filing a new application with more details of the proposed taking of evidence in affidavit form, rather than simply dismissing the application on that basis, requiring the Crown to file a new application, the court elected to reserve its decision on the section 714.1 application and prior to releasing its decision ordered a test of the proposed location and equipment to see if the facilities proposed were in fact satisfactory.

[59] Although I did not dismiss the application under section 714.1 on those grounds, I agree with defence counsel that further details of the suitability of the location should have been included in the application itself.

[60] Counsel for the defence and the federal prosecutor were invited to attend such "test" of the proposed equipment but ultimately did not attend such test.

[61] During such test, from a boardroom at the Ontario Provincial Police station and the use of a laptop, the clarity of the sound and the quality of the video transmission were excellent, although there appeared to be a problem with the sound reception through the speakers in the courtroom. Court staff advised that this problem should be rectified by them prior to the court attendance and was a likely result of an issue at the courthouse and not at the transmission site.

[62] Based on a test of the equipment and a virtual view of the room where the proposed testimony is to take place, the court finds that the location and audio visual equipment to be used is in fact suitable, assuming the equipment is working properly and subject to the imposition of certain conditions. The court finds that such testimony will not impact the fairness of the hearing and will not impact the ability of defence counsel to cross-examine the witnesses.

[63] With respect to the other factors set out in section 714.1, although the court accepts that the evidence of the officers is contentious and is not simply the recitation of a narrative but will deal with fulsome cross-examination regarding Charter rights alleged to have been breached by the officers, the court is satisfied that the circumstances of the remote testimony, in this particular case, given the quality of such transmission, will not compromise the accused's right to a fair and public hearing. The court will maintain its ability to control and monitor the process and set conditions to ensure the fairness of the proceedings. If at any time the transmission is unsatisfactory, the court will require the personal attendance of witnesses.

[64] Is the right to a public hearing compromised by the virtual testimony of these witnesses? Currently the number of persons in the courthouse and in the courtroom are being limited. At least theoretically, limiting in person witnesses at the courthouse would allow more individuals, including the press, the opportunity to attend personally or they may elect to attend remotely. Virtual testimony does not currently affect the right to a public hearing.

[65] The offences before the court are offences which are not the most serious criminal offences found in the Criminal Code and related federal statutes and the accused does not appear to be facing a loss of liberty if convicted of these offences.

[66] The accused will be able to see and hear the witnesses who are to testify and the witnesses will be able to see and hear the judge and counsel who will be posing the witness questions. One witness, the main witness, for the Crown has already testified personally on the first day of trial.

[67] On the issue of Covid-19, but for Covid-19, these witnesses would, in the normal course, testify in person at the courthouse.

[68] Although, the number of Covid-19 cases have been reduced significantly in Ontario, Covid-19 has not been eliminated from our city or province and in some provinces in Canada and in some southern states in the United States, after an initial reduction in Covid-19 cases there has been a resurgence or a second wave of cases. Courtrooms and courthouses which have been opened have taken measures to mitigate the risk. Notwithstanding these safeguards, some counsel and judges, including one counsel involved in this case, and I expect some witnesses, may be reluctant to attend at courthouses due to concerns for their health or the health of their loved ones.

[69] When will we return to normalcy? Is one unresolved case in the area or none the measure of a lack of transmission? When can we return, if ever, to the situation as it existed prior to Covid-19?

[70] The court finds that Covid-19 is an exceptional circumstance that justifies the greater use of remote testimony.

[71] The best protection against Covid-19 is to reduce the attendance of people at the courthouse. We are still in the midst of a state of emergency in Ontario due to Covid-19 and the courts and judges are still providing some services remotely where prior to Covid-19 such services would have been provided by in person attendances. All justice system partners are encouraged to minimize the attendance of persons at the court house unless their attendance is necessary.

[72] This judicial official is satisfied that he and staff can safely attend at the courthouse in Sault Ste. Marie, at this time, together with defence counsel, crowns, the public and witnesses as a result of the current local circumstances of Covid-19, and the preventative guidelines and protocols that have been instituted locally.

[73] However, it is acknowledged that the best defence against the spread of the virus is the lack of contact between individuals. Such lack of contact will best be facilitated by allowing remote testimony to occur, when possible, as long as such testimony can occur without jeopardizing the fairness of the trial.

[74] This court will not jeopardize the safety of justice participants if it is not necessary to do so.

Conclusion

[75] The court is therefore satisfied that, in the circumstances of this case, it would be appropriate due to the exceptional circumstances of Covid-19, to grant the section 714.1 application as requested by the Crown for the three witnesses subject to the following prerequisites and conditions:

1. The remote testimony will only proceed if the quality of the audio and video available to all participants will not jeopardize the fairness of the hearing;

2. The court will address the witnesses together to ensure that they are aware that the proceeding is an extension of the court proceeding and the witnesses shall be subject to the direction of the court.

3. To prevent further issues with transmission of the virus all witnesses will be asked to affirm to tell the truth without the necessity of handling any object such as a Bible.

4. The testimony of the witnesses will occur at the boardroom of the Ontario Provincial Police offices in Sault Ste. Marie.

5. Only 1 witness shall be in the boardroom at a time when the testimony is being provided by the witness and the officer who provided the test of the equipment, Officer Halverson, or his designate, shall be available, and may remain in the boardroom, to ensure compliance with directions given by the court and to serve as an intermediary between the officers and the court to ensure the attendance of the witnesses without any need for the officer who testified to contact the other witnesses.

6. No other person shall be present in the boardroom when each of the officers is testifying.

7. Other witnesses who have not yet testified shall remain in the building at other locations where they will be unable to hear the testimony given by the witness testifying and be available to testify when needed unless otherwise excused by the court.

8. None of the witnesses shall communicate with the other witnesses until all witnesses have completed their testimony, or as may be subject to further direction of the court, in order to ensure the neutrality of the site and the perception of fairness in the trial process.

9. Any documentation or other evidence that may be required to be produced to the witnesses, or that may be reviewed by the witnesses such as officer's notes, must be capable of being produced to them remotely or be in their possession with access to such documentation available to other counsel and the court.

10. Each of the witnesses shall use headphones when they give their testimony, and counsel shall also use headphones, to ensure consistency with respect to the transmission of the audio and to prevent feedback.

[76] If at any point it is clear that such testimony is not satisfactory then the witnesses shall be required to attend in person at the court house for their testimony.

[77] I thank counsel for their most helpful submissions.

Released: July 28, 2020

Signed: "Justice Romuald Kwolek"