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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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

Date: September 25, 2020

Ontario Court of Justice

Between

Her Majesty the Queen

and

Carlos Ibarra Ochoa

Counsel

• C. Downing, counsel for the Crown
• M. Huckabone, counsel for Carlos Ibarra Ochoa

Heard: September 24, 2020; Judgment released September 25, 2020

Reasons for Judgment

R.T. KNOTT J.

Overview

[1] The Crown brought an application for an order permitting Peter Thistlethwaite, Patti Nashman, H.K.F. and N.A. to testify via Zoom pursuant to s. 714.1 of the Criminal Code of Canada. Specifically, the relief sought was to have the four witnesses testify remotely, by video link from their respective homes because of concerns about attending court during the pandemic, and other considerations.

[2] The Crown filed the affidavit of DC Wendy Saunders who summarized the information she received from the two witnesses in Canada. Ms. Downing for the Crown indicated defence counsel had already consented to the two witnesses from Israel testifying remotely, but the conditions for their testimony could not be fulfilled due to Israel now being in a lockdown situation.

[3] The case relates to an incident which took place on a canoe trip in August 2019. N.A. is the complainant in this case. It is alleged that on 8 August 2019 the accused sexually assaulted him while in Algonquin Park in Eastern Ontario. N.A. was 15 years old at the time of the alleged incident. He will be 16 years old for the first day of trial scheduled for 5 October 2020. N.A. lives in Bet Shemesh, Israel.

[4] H.K.F. was a friend of N.A. Ms. F. is the first person to whom Mr. N.A. disclosed the incident. Ms. F. also resides in Israel.

[5] Mr. Huckabone, counsel for the accused, noted there was no evidence concerning the current conditions in Bet Shemesh, Israel and no evidence concerning how the two witnesses proposed to testify from Israel. He thus was not able to consent to this portion of the application.

[6] The third witness Peter Thistlethwaite is the director of the camp running the canoe trip. Peter Thistlethwaite resides in Barrie, Ontario. He has expressed concern about coming down with COVID-19. He has been isolating with his 85-year-old father since June 2020. He is concerned about possible exposure in the courthouse, as well as during the travel to Pembroke and two-night stay at a local hotel. Mr. Thistlethwaite worried also about attending Toronto to testify from a courthouse. Nor does he wish to testify from a local Barrie police station or courthouse due to the infection risk. There are concerns about coming into contact with police officers who may be exposed during their every-day work if required to attend a police station to testify. Furthermore, police stations are attempting to limit in-person attendances from the public.

[7] Patti Nashman is another director of the camp, who was present during the canoe trip. She resides in Toronto. She is also concerned about COVID-19. She has indicated that she is not comfortable staying in a hotel for 2 nights with case numbers increasing. She also has trepidations about appearing in court in person. Ms. Downing amplified Ms. Nashman's personal situation in that she is caring for her elderly parents. Ms. Nashman's father is a cancer survivor. She is thus very concerned how a possible exposure would affect her parents.

[8] Both counsel agree that Ms. Nashman and Mr. Thistlethwaite are secondary witnesses essential for the narrative and chronology of the complainant coming forward, but neither will provide direct evidence other than their interaction with the complainant after the fact.

[9] Mr. Huckabone conceded that in the personal circumstances of these two witnesses and the nature of their evidence, he was not opposed to them testifying remotely from their homes.

[10] Similarly, once we discussed the conditions how a witness would testify, Mr. Huckabone was not opposed to the friend, H.K.F., testifying remotely from her home in Israel either.

[11] Mr. Huckabone reiterated his opposition in principle to the application for two central reasons. First, he argues that the witnesses' homes are not suitable locations for the witnesses to give evidence. Second, he argues that his client's right to a fair trial would be compromised if the witnesses were permitted to testify from their homes.

[12] He argues that if the witnesses are permitted to testify remotely, it should be in a setting which can be monitored, such as in a courthouse closer to their homes, or in the presence of someone independent to ensure the integrity of the process and preserve the appearance of fairness. He argues that there are insufficient safeguards, if the witnesses are permitted to testify from their homes, to ensure that the witnesses are not communicating with others, being influenced inappropriately, or being aided through notes or other materials with their evidence.

[13] Ms. Downing noted that defence had already consented to the complainant and his friend to testify remotely from Israel. However, for various reasons, the trial did not proceed. She submitted that the case of R. v. Rutaihwa, 2020 ONCJ 470, addressed the concerns raised by the defence. She submits that the court can order any terms it sees fit to safeguard the fairness of the process and the integrity of the evidence.

Analysis

[14] I quote from R. v. Rutaihwa, paragraphs 11-16:

11. Section 714.1 of the Criminal Code provides that 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 of the circumstances. An assessment of the appropriateness of permitting remote witness testimony may be guided by the seven enumerated factors set out in s. 714.1, which include:

(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.

12. The crux of the disagreement between counsel rests with factors (a) and (d).

13. In my view, the application of s. 714.1 should be informed by the principle expressed by the Supreme Court of Canada that the evidence of a witness in a criminal proceeding must be given in a way that is most favourable to eliciting the truth so long as it does not impair the accused's right to make a full defence and a fair trial: R. v. Levogiannis, [1993] 4 S.C.R. 475, at paras. 14, 20.

14. Mr. Whitzman drew the court's attention to the decision of the Nova Scotia Court of Appeal in R. v. S.D.L., [2017] N.S.J. No. 247, in which the court set out, at para. 32, certain principles that may guide the exercise of discretion. Among the principles noted, the court suggests that a court should only exercise its discretion and authorize testimony via s. 714.1 "in the face of exceptional circumstances", where the primary issue in the case is credibility.

15. Other cases have considered whether s. 714.1 should only apply in exceptional circumstances. In R. v. Metcalfe, 2018 ONSC 4925, Justice Faita noted, at para. 12, that had Parliament intended to have s. 714.1 apply only in exceptional circumstances, it would have said so and that there should be no presumption against the application of s. 714.1 in cases where credibility is the central issue, or where the remote evidence would be that of the complainant. Rather, the nature of the evidence is one of several factors to be considered in determining whether to exercised discretion and permit the evidence to be given outside of the court.

16. I agree with the court's statement in Metcalfe that the nature of the evidence to be given is only one factor which goes into balancing whether the application should be granted. See also R. v. Ozerka, 2018 ABPC 162.

[15] With this passage in mind, I will turn to the two factors upon which this application rests: personal circumstances of the witnesses and the proposed location of the evidence.

[16] With respect to the witnesses' personal circumstances, Mr. Huckabone accepted, quite fairly, that Mr. Peter Thistlethwaite indicated specific health-related concerns related to the COVID-19 pandemic as a basis for his requests to testify from home. He stated, again quite fairly, that he is not suggesting anyone should be forced to come to court if they do not feel safe. In addition, the complainant and his friend reside in Israel. International travel is not advisable unless necessary, so Mr. Huckabone has already agreed that they can testify remotely.

[17] I accept the evidence before me that both Mr. Peter Thistlethwaite has health and safety concerns about attending personally at the courthouse related to the pandemic. He also has other, cost-related concerns which I include in my overall assessment of the application, but the health-related concerns are of greater importance.

[18] I accept the evidence in the affidavit that Patti Nashman also has health concerns related to COVID-19, although hers are more general in nature. They relate to travel, hotel and courtrooms. Through Crown counsel submission, I find she has personal, family health concerns as well.

[19] I conclude that all four witnesses have legitimate personal reasons for wanting to testify remotely, some of which relate to the exceptional circumstances of the current pandemic.

[20] Turning to the location of the proposed remote evidence, in assessing the suitability of the location, I agree with the court's statement in R. v. Kervian, (NL PC), at para. 36, that judges must adopt an expansive interpretation of s. 714.1. There is no need for witnesses to travel long distances or expose themselves to health and safety risks when their evidence can be presented by modern technology. For sound policy reasons, they should be permitted to remain in the area in which they reside. Their testimony can still be received in a manner that facilitates access to justice and maintains the fairness of the trial process.

[21] In my view, there are two central considerations at play in assessing the suitability of the location for remote evidence.

[22] First, I agree with Mr. Huckabone that the "solemnity of the courtroom" plays an important role in ensuring all participants to the proceeding understand:

(a) the seriousness of the proceedings,

(b) the significance of their oath, and

(c) the importance of maintaining trial fairness is maintained.

[23] Second, it is crucial that the requesting party establish that the proposed location will be free from outside influence or interruption.

[24] In an ideal world, or at least one free from an unprecedented global pandemic, personal attendance in a courtroom best ensures trial fairness. A witness' evidence is given under circumstances free of influence or interruption. In this case, the alternatives to appearing personally in Pembroke for providing one's evidence, such as testifying in another courthouse closer to the witnesses' respective homes, or in another location but in the presence of a police officer or court officer, were duly considered by the Crown. They are not feasible or are otherwise unavailable.

[25] I still believe that it is very important for an accused to be able to confront his accuser in an open court setting. That must remain the preferred method of a criminal trial. I suspect every witness would prefer to testify in their home rather than attending an open court. While the conditions of this Covid19 pandemic will require only essential people to attend court personally, and there also is a general goal to make the criminal justice system more efficient and accommodating, exceptional conditions such as those set upon us by the current pandemic will justify the increased use of remote testimony. The parties will have to look at the nature of each witness' proposed evidence and consider that evidence along with the witness' personal circumstances to address whether he or she can testify remotely. There is no doubt that more witnesses, for expediency and cost reasons, should testify remotely than was occurring prior to the pandemic.

[26] It is not the case that participants' physical presence in a courtroom or in the presence of a court officer, is the only way to establish the solemnity of the proceedings or to ensure that the witnesses are free of influence or interruption.

[27] Rather, the solemnity of the occasion and the integrity of the evidence can be adequately maintained with certain alternative safeguards in place. To specifically address the issue of the solemnity of the proceedings, the trial judge must instruct each witness, before beginning their evidence, that although they are testifying via video link and from their homes, nothing else about the proceedings has changed, least of which, the solemnity of their oath or affirmation.

[28] The trial judge as always must maintain a supervisory role over the proceedings. There are challenges to monitoring witnesses while looking at a computer monitor and taking notes. Thus, the use of technology and specific concerns related to any witnesses must be addressed, if any concerns arise. Moreover, the court can re-visit the appropriateness of proceedings remotely via video link, should the circumstances warrant reconsideration.

[29] The requirements I will impose in this trial are as follows:

(a) The Crown will test the operation of the technology prior to calling each witness to determine that the "virtual presence" of the witness is achieved in a private setting and without interruption;

(b) In a perfect situation, the witness would testify with a court officer or support person from a Victims Witness Assistance program in the room also on camera. In the absence of such a person to monitor the testimony, the witness must testify in a private room free from distractions, and be able to adjust the camera to show that no one else is present, to the satisfaction of the court;

(c) The witness must position the camera so that his or her hands are always visible;

(d) The witness will confirm that he or she does not have a cellphone in his or her possession during the evidence, unless using a cell phone to give the evidence via video link. If one needs to keep a cellphone with her for valid reasons, those reasons must be raised before testimony begins, to be vetted with the court. If the court permits the witness to have a cellphone, he or she will keep the cell phone in a location in the room where it is always visible on camera and request permission before accessing it in any way;

(e) The witness will be directed not to touch the keyboard, mouse, or trackpad, or change the camera angle on her electronic device, without permission of the court.

(f) The witness will confirm, under oath, that he or she does not have access to any documents or materials related to the case during her testimony, unless provided with documents or given access to documents with court approval;

(g) During any breaks in the testimony, the witness should be directed not to interact with anyone or any material, similar to an order excluding witnesses;

(h) The host will disable any recording function available on the videoconferencing format during the trial;

(i) At the start of the proceedings, the court will issue a warning to all in virtual attendance that the recording of the proceeding, in whole or in part, is prohibited and/or make all those in virtual attendance aware of section 136 of the Courts of Justice Act. The technology must include an in-court mute function, so that the witness can be effectively excluded, if necessary, during any objections;

(j) The witness should position themselves so that their back is to the only door to the private room in which they are testifying, so that the court can see if anyone enters the room while the witness is testifying.

(k) The witness will attempt to place a mirror behind them so that the court can see the computer monitor the witness is viewing to ensure the witness is not making use of a split screen in order to look at other items while testifying.

(l) If any related parties are watching the trial such as the parents of the two young witnesses, those witnesses should be asked to close their video/audio function and to mute their audio, so that they can watch and hear the evidence without the witness being able to see the people watching.

[30] I would note that the concern raised by Mr. Huckabone that testimony from a person's home is very new to the court proceedings. It remains within a trial judge's mandate to consider any additional terms that either counsel wish to suggest in the interest of trial fairness and access to justice.

[31] I am satisfied, with these safeguards in place, that the Crown will test the suitable locations for the witnesses to give their evidence via video link, and that, in all the circumstances including the ongoing global pandemic, it is appropriate to proceed with these witnesses via video link.

[32] The Crown's application to have Ms. Patti Nashman, Peter Thistlethwaite, H.K.F. and N.A. testify via video link pursuant to s. 714.1 of the Criminal Code is granted.

RICHARD T. KNOTT

ONTARIO COURT OF JUSTICE