Court Information
Date: September 10, 2020
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Janos Rweyemanu Rutaihwa
Before: Justice R. Maxwell
Heard on: August 20, 2020
Reasons for Judgment released on: September 10, 2020
Counsel
L. Karademir — counsel for the Crown
S. Whitzman — counsel for Mr. Rweyemanu Rutaihwa
MAXWELL J.:
Overview
[1] The Crown brought an application to have three of its witnesses testify remotely, by video link, at trial. The three witnesses seek to testify from their respective homes because of concerns about attending court during the pandemic and other considerations.
[2] By way of background, the case relates to an incident which took place on May 18, 2019. It is alleged that the complainant and her two friends were leaving an establishment when the complainant was pushed to the ground, allegedly by the accused. She fell backwards, striking her head and briefly losing consciousness. The accused is charged with assault causing bodily harm.
[3] The three witnesses the Crown seeks to have testify via video link are the complainant and her two friends who witnessed the incident.
[4] The Crown filed the affidavit of DC Laura Ball who summarized the information she received from the three witnesses. The complainant, Marissa Roche works one hour north of Toronto and would be required to take two unpaid days off work to attend court personally. She also has health and safety concerns related to the COVID-19 pandemic. In particular, she has two young children who are not currently in school and can only be cared for in a daycare from 8am to 5pm. Further, her daughter is immunocompromised and is awaiting surgery that is set for early September.
[5] The second witness, Ms. Marianne Marcello, advised DC Ball that she is a registered full-time nurse and would have to travel to Toronto after night shift to attend court. She lives in Caledon and would have a long drive home to Caledon if she is required to attend personally. She is in her 1st trimester of pregnancy and is extremely fatigued and nauseous and feels attending in court would be unsafe for her, particularly after working all night. She has been avoiding public spaces for fear of contracting COVID-19. She is concerned about the risk of contracting COVID-19, both from the perspective of her pregnancy, and the possibility of bringing it to the hospital where she works.
[6] The third witness, Ms. Jessica Barnes, advised that it would take her 1 to 1 ½ hours to travel from Barrie to Toronto and that she would lose pandemic pay to work. She is concerned about attending downtown Toronto during the pandemic where the number of positive cases has been higher compared to Barrie.
Positions of the Parties
[7] Mr. Whitzman, counsel for the accused, is opposed 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.
[8] 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 an officer of the court, such as a police officer or sheriff, 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.
[9] Mr. Karademir for the Crown points out that s. 714.1 of the Criminal Code gives the court discretion to allow a witness to testify from outside the courtroom and from anywhere in Canada. Section 714.1 does not require that it be impossible for a witness to attend court personally: R. v. Denham, 2010 ABPC 82, at para. 22; R. v. Jeanes, 2014 BCSC 994, at para. 72. The court is empowered to exercise its discretion to permit remote witness testimony, provided it does not negatively impact trial fairness or the open court principle.
[10] To respond to the concerns raised by the defence, he argues that the court can order any terms it sees fit to safeguard the fairness of the process and the integrity of the evidence.
Analysis
[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 exercise 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.
[17] With that said, I will turn to the two factors upon which this application turns: personal circumstances of the witnesses and the proposed location of the evidence.
[18] With respect to the witnesses' personal circumstances, Mr. Whitzman accepted, quite fairly, that Ms. Roche and Ms. Marcello both indicated specific health-related concerns related to the COVID-19 pandemic as a basis for their 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.
[19] I accept the evidence before me that both Ms. Roche and Ms. Marcello have health and safety concerns about attending personally at the courthouse related to the pandemic. They also have other, cost-related concerns which I include in my overall assessment of the application, but their health-related concerns are of particular importance.
[20] I accept the evidence in the affidavit from Ms. Barnes that she also has health concerns related to COVID-19, although hers are more general in nature and relate to the higher incidents of COVID-19 infections in Toronto compared to Barrie.
[21] I accept that all three witnesses have legitimate personal reasons for wanting to testify remotely, some of which relate to the exceptional circumstances of the current pandemic.
[22] 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, at para. 36, that judges must adopt an expansive interpretation of s. 714.1 and that 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 from the area in which they reside and in a manner that facilitates access to justice and maintains the fairness of the trial process.
[23] In my view, there are two central considerations at play in assessing the suitability of the location for remote evidence. First, I agree with Mr. Whitzman that the "solemnity of the courtroom" plays an important role in ensuring all participants to the proceeding understand the seriousness of the proceedings, the significance of their oath, and that trial fairness is maintained. Second, it is important 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 where we are not experiencing an unprecedented global pandemic, personal attendance in a courtroom best ensures trial fairness and that the evidence is given under circumstances free of influence or interruption. In this case, the alternatives to appearing personally in Toronto for 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 considered by the Crown and are not feasible or are otherwise unavailable.
[25] That being said, 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 ensure that the witnesses are free of influence or interruption.
[26] Rather, the solemnity of the occasion and the integrity of the evidence can be adequately maintained with certain safeguards in place. It bears noting, as a starting point, that I have evidence in the affidavit from all three witnesses that each has a reliable internet connection and a quiet space in her residence where she can be alone when providing remote testimony. This aspect of the affidavit was not challenged, and I accept that these are the conditions that the Crown can ensure for each witnesses' evidence.
[27] Second, and to specifically address the issue of the solemnity of the proceedings, I am prepared to instruct each witness, before beginning their evidence, that although they are testifying via a video link and from their homes, nothing else about the proceedings has changed, most importantly, the solemnity of their oath or affirmation.
[28] Third, as I would in any proceeding, I will maintain a supervisory role over the proceedings and will address any concerns arising from the use of technology, or concerns related to the witnesses, if and when any concerns arise. Moreover, the court can re-visit the appropriateness of proceeding remotely via video link, should the circumstances warrant reconsideration.
[29] Finally, additional directions will further safeguard the integrity of the proceedings, the appearance of fairness, and the solemnity of the proceedings. I draw from the requirements set out by Wolfe J. in R. v. Teotia, 2019 ONCJ 939 which, although arising in the context of an application under s. 714.2 to allow a police officer to testify from out of the country, are equally appropriate in this context.
[30] The requirements I will impose in this trial are as follows:
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;
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;
The witness must position the camera so that her hands are always visible;
The witness will confirm that she does not have a cellphone in her possession during the evidence, unless she is using a cell phone to give her evidence via video link. If she 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, 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;
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.
The witness will confirm, under oath, that she does not have access to any documents or materials related to the case during her testimony, unless she is provided with documents or given access to documents with the court's approval;
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;
The host will disable any recording function available on the videoconferencing format during the trial;
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 s. 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;
The court will consider any additional terms that either counsel wish to suggest, in the interest of trial fairness and access to justice.
[31] I would note that the concern raised by Mr. Whitzman that the witnesses, because they are known to each other and they are in their respective homes, might communicate with each other, is something that can be canvassed in cross-examination, much as it would be if the witnesses were appearing in person. I do not see how proceeding via video link creates an increased risk of collusion or influence, given the safeguards which will be imposed, and the availability of cross-examination to explore the issue.
[32] I am satisfied, with these safeguards in place, that the Crown has found a suitable location 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.
[33] The Crown's application to have Ms. Roche, Ms. Marcello, and Ms. Barnes testify via video link pursuant to s. 714.1 of the Criminal Code is granted.
Released: September 10, 2020
Signed: Justice R. Maxwell
