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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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

Ontario Court of Justice

Date: 2020-11-02

Court File No.: London 19-5640

Between:

Her Majesty the Queen

— AND —

Eric Brooks

Before: Justice M.B. Carnegie

Heard on: October 29, 2020

Reasons for Judgment released on: November 2, 2020

Counsel

Renee Mahoney — counsel for the Crown

James Zegers — counsel for the defendant Eric Brooks

Judgment on Crown s. 714.2(1) Application – Remote Testimony

CARNEGIE J.:

Introduction

[1] The Crown brings an application pursuant to s. 714.2(1) of the Criminal Code requesting that the complainant be permitted to testify by video conference at the Respondent's trial. The Respondent is charged with sexual assault, pursuant to s. 271 of the Criminal Code. The Respondent's trial is scheduled to commence on November 6, 2020. The complainant is presently in the state of Florida, outside of Canada, and is not anticipated to return to Canada before the Respondent's trial date.

Background

[2] November 6, 2020 represents the third date set for trial. On November 19, 2019 and July 7, 2020, trial dates were adjourned. On both those occasions, the complainant was in Canada and subpoenaed and was expected to testify in-person at the Respondent's trial. On September 24, 2020, the complainant was served with her subpoena to testify on November 6, 2020. However, on September 26, 2020, the complainant traveled to Florida to reside with her mother for an unspecified period of time – she remains in Florida to this date and is anticipated to be there for an unknown period of time beyond the Respondent's trial date.

[3] The Crown has advanced evidence characterizing the reasoning for the complainant's trip. In essence, it was an unforeseen trip to enable her to provide care for her mother due to an unforeseen health crisis. A return to Canada to enable in-person testimony is said to attract significant financial costs due to necessary travel arrangements and the necessity of a return quarantine obligation. There is also reluctance to be exposed during travel to an enhanced risk of Covid-19. Further, on October 22, 2020, the complainant tested positive for Covid-19 per a Rapid Antigen test and is awaiting follow-up confirmation. As such, she is currently self-isolating for 14 days in her mother's Florida home, unable to travel to Canada as a result.

[4] The Respondent contests the Crown's evidentiary record respecting the reasoning for her Florida trip. Noting that no details or documentation have been provided verifying the nature of the complainant's mother's health crisis, the Respondent has marshalled some evidence calling into question the reasoning behind the complainant's Florida trip. While acknowledging she is presently in Florida, it is suggested that she is there due to financial hardship experienced in Canada and is, instead, being supported by her mother in Florida and not providing care for an ailing parent.

[5] The Crown provided notice, pursuant to 714.2(2), on October 7, 2020 – well in excess of the 10 day period prescribed by that section. It proposes that a Zoom video conference link can be effectively used to allow for reliable video conference evidence during the Respondent's trial. As the complainant is already in quarantine in Florida, it is proposed that the complaint will ensure that she is alone and undisturbed, in a room in her mother's residence. She does not have physical or electronic access to disclosure in this matter, all preparations having already been done by video conference link. The Crown will ensure that testing of the video-link connection will occur prior to trial to ensure functionality and quality of transmission.

Legal Standard on a 714.2 Application

[6] By this application, I am called upon to determine whether allowing the complainant to testify by way of videoconference at the Respondent's trial would be contrary to the principles of fundamental justice.

[7] The Crown has satisfied the notice provisions of s. 714.2(2) of the Criminal Code. As a result, s. 714.2(1) proscribes that this Court shall receive evidence given by a witness outside Canada by videoconference "unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice." There is nothing in this provision which distinguishes between witnesses – complainants or otherwise – or whether the witness[es]' evidence will be subjected to a substantive credibility challenge. Therefore, the Respondent bears the burden to satisfy this Court that permitting videoconference evidence would breach of the principles of fundamental justice.

[8] It is noteworthy that Parliament distinguished between in-country and out-of-country proceedings when legislating ss. 714.1 and 714.2. Where the witness is within Canada, the party calling the witness has the onus to satisfy the court that calling videoconference evidence "would be appropriate having regard to all the circumstances", including a list of factors for consideration. The court is empowered to make a discretionary call. However, for out-of-country witnesses, the court must permit videoconference evidence if the requisite notice has been given and can only dispense with that form of evidence if the opposing party satisfies it that it would be "contrary to the principles of fundamental justice" to allow testimony by that format – an apparent higher threshold to rebut videoconference evidence.[1]

Analysis

[9] First, the Respondent contends that the solemnity of the proceedings would be adversely impacted by the allowance of videoconference evidence, particularly from a complainant who will be exposed to a credibility challenge. Obviously, the witness will be required to provide evidence under oath or affirmation and it will be explained to her that, but for her location, the proceedings are otherwise to be treated as if the testimony was offered within a courtroom. As observed in Mapp-Farouck, Parliament enacted s. 714.2 without creating an exception for "key witnesses or cases where credibility is at issue…credibility of witnesses is almost always a factor in trials to some degree."[2] Also, it is no longer uncommon for courts to receive videoconference evidence, even from complainants who are providing central and contested evidence before the court. Without denigrating the solemnity of court proceedings, ss. 486.2(1) and (2) of the Criminal Code permits courts to routinely allow for videoconference evidence under prescribed and discretionary circumstances where the giving of a full and candid account by the witness would otherwise be adversely impacted by in-courtroom testimony.

[10] The assessment of the propriety for videoconference evidence is, by necessity, case specific. The mere existence of a live credibility issue does not alter this analysis, particularly given the distinction between the tests and considerations enunciated between ss. 714.2 and 714.1 of the Criminal Code. As stated in Mapp-Farouck, "…it would be an error to approach the analyses from the perspective that the mere existence of credibility as an issue alters the nature of the analyses. It does not."[3] I have not been provided any evidence or persuasive argument that satisfies me that the defence will be prohibited from making full answer and defence, or be encumbered from marshaling an appropriate credibility attack, should the complainant testify remotely.

[11] Further, the conflicting context presented for the complainant's out-of-country status is of no matter. While, subject to the collateral fact rule, it may form part of a trial credibility issue, I fail to see why the reasoning behind her trip to Florida is material to my assessment of whether the principles of fundamental justice are adversely impacted by her videoconference evidence. This is not a s. 714.1 application where, perhaps, such considerations could play a role.

[12] Second, the Respondent contends that facing your accuser constitutes a principle of fundamental justice which would be substantively encumbered by remote videoconference evidence. While the Crown's case substantially relies upon the complainant's evidence, it can be equally said that a challenge to that evidence is presumably central to the defence.

[13] Obviously, the Respondent is entitled to a trial that is fundamentally fair. But, as has been oft cited from the Supreme Court's ruling in R v O'Connor, he is not entitled to the fairest of all possible trials. Principles of fundamental justice take into account not only the Respondent's interests, but also the practical limits of the justice system and the lawful interests of others involved in the process (which includes the complainant). As stated by Green J in R v Kalejaiye, "face-to-face confrontation of a witness is not essential for the truth to be discovered in these proceedings."[4] In the context of the proceedings before me, I agree. Unlike a s. 486.2 order, here the complainant will be afforded a view of the entire courtroom (Respondent included) and the Respondent will obviously be afforded the opportunity to see the complainant provide her evidence. Also, I note that the virtual presence of a witness during a trial, by way of adequate videoconference technology, has been inherently recognized by Parliament in ss. 714.1 and 714.2 to be a capable substitute for in-person testimony.[5]

[14] Putting aside the practical impossibility of requiring the complainant's in-person evidence at the Respondent's trial given quarantine restrictions (whether or not the complainant is confirmed positive for Covid-19), I also consider the interests of the local community which includes the health of all parties before this court and the court staff who must work within the environment already replete with Covid-19 threat mitigation efforts. And, demanding the complainant's testimony in-person would not be without its own hardship. As was observed by Dunphy J in R v Mapp-Farouck, "[a]part from the very real uncertainties that arise from closed borders and cancelled flights, the prospect of up to a month of quarantine upon a witness is more than a simple matter of inconvenience particularly where a reasonable alternative such as videoconference evidence is available."[6]

[15] And, it is no answer to simply grant an adjournment of the trial until Covid-19 travel and quarantine restrictions are lessened. The Respondent's application burden must be discharged before I consider an adjournment of the trial. It is no answer to simply punt the ball down the field and wait for another day unless I am convinced that the Respondent's trial interests would be fundamentally and/or adversely impacted. Further, doing so would run contrary to the expressed societal interest in timely trials as outlined by the Supreme Court in R v Jordan, 2016 SCC 27.

Conclusion

[16] While I might prefer to receive evidence in the usual course, in-person evidence at the Respondent's trial, I am unable to find any basis upon which I should conclude that receiving videoconference evidence during these proceedings would be contrary to the principles of fundamental justice. The Respondent has failed to satisfy me that there would be any meaningful prejudice to his fair trial interests should the complainant be permitted to testify by videoconference. As a result, an order pursuant to s. 714.2(1) will be made allowing the complainant to testify remotely using videoconference technology.

[17] Of course, if at any time during the conduct of the complainant's evidence it becomes apparent to me that the quality of the video/audio transmission is interfering with the truth finding process, I will revisit this ruling. Further, I will make all reasonable efforts to satisfy myself that the environment used by the complainant to testify is appropriate, free from distraction or other undue influences on an ongoing basis.

Released: November 2, 2020

Signed: Justice M.B. Carnegie

Footnotes

[1] R v Mapp-Farouck, [2020] OJ No 3676 (SCJ) at paras 8-12

[2] Ibid, para 23

[3] Ibid, para 24

[4] R v Kalejaiye, 2020 ONCJ 422 (unreported) at p. 6, line 5

[5] See R v Ochoa, 2020 ONCJ 432, at para 20 where Knott J. noted: "…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 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."

[6] Mapp-Farouck, supra, para 30