Date: March 4, 2021 Information No.: 19-8311

Ontario Court of Justice

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DANE BROWN

Before: Justice R. Marion

Matter heard: February 25, 2021 and March 4, 2021

Counsel: N. Stortini ................................................................................... for the Crown K. Marley ............................................................ for the Accused, Dane Brown

Ruling on an Application to Allow a Witness to Testify at Trial by Video Link Pursuant to S. 714.1 of the Criminal Code

MARION J.:

[1] The Crown has brought an Application for an Order permitting a witness, the complainant, to testify remotely at trial scheduled for March 8th, 2021, pursuant to s. 714.1 of the Criminal Code. The Crown relies on the Affidavit of the complainant dated February 9, 2021.

[2] The complainant advises that she lives in Brantford, does not own a motor vehicle and does not have anyone to assist her to attend court in Windsor. Consequently, she would have to travel to Windsor by train and stay at a local hotel the night before the trial date. She states that she is uncomfortable taking the train or staying in a hotel due to the pandemic.

[3] Mr. Brown is charged with one count of assault simpliciter and one count of assault with a weapon contrary to s. 267 (a) of the Criminal Code. Defence counsel advises that he opposes the Application. Both the Crown and Defence acknowledge that the issue in this case is credibility. The only two witnesses anticipated to testify at trial are the complainant and the accused.

[4] The Information was sworn on September 5, 2019. The charges arise from an alleged incident which occurred on August 27th, 2019. An initial trial date was scheduled for February 13, 2020. The trial was adjourned as the accused attended and advised that he wished to retain counsel. In addition, the Crown had failed to bring an Application under s.486.3 of the Criminal Code to have counsel appointed to cross‑examine the complainant.

[5] Section 714.1 of the Criminal Code reads as follows:

“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.”

[6] The test under s. 714.1 is one of appropriateness considering all the circumstances, including the enumerated factors.

[7] The Defence submits that the accused’s right to a fair hearing will be compromised if the Crown’s Application is granted. Counsel points to the serious nature of the offences and concerns with respect to the location where the complainant will give evidence and technological issues.

[8] Due to the pandemic many courtrooms are now equipped with modern technology and remote testimony is encouraged.

[9] Much of the jurisprudence relied upon by the Applicant precedes the pandemic. In these cases, permission was given for remote testimony even in serious matters, due to significant impediments to witnesses testifying in person. [1] Nonetheless, these cases reflect that remote testimony should not be permitted if it negatively impacts trial fairness or the open courts principle. [2]

[10] The presiding Justice is the gatekeeper as to whether remote testimony would be appropriate having regard to all the circumstances including the accused’s right to a fair and public hearing.

[11] Sufficient information must be provided to support the remedy sought by the Applicant and allay any concern about the conduct of the proceedings. The pandemic poses a substantial challenge to the administration of justice. Consideration must be given to the health and safety of all, however, the exigent circumstances facing the administration of justice must not be permitted to compromise trial fairness.

[12] The Crown seeks an Order permitting remote testimony pursuant to s.714.1 but the prayer for relief does not set out the specific circumstances as to where the witness will be testifying.

[13] There is no legislative preference for a specific location or a requirement that the witness testify from a courthouse. The accused submits that the location proposed in this case being in the complainant’s “home” does not offer the same level of solemnity as that offered by a courtroom. [3] The only information available as to location is the complainant’s statement: “I can testify alone, in my home, in a quiet setting”. The complainant offers an alternative: “…if absolutely necessary, I could attend at the Brantford Courthouse to give my evidence”, however, when the Application was argued, no alternative arrangement had been made for a trial scheduled for March 8. Under Grounds at paragraph 9, the following is referred to: “…She has a laptop and a private location to testify from. …If required to, she is prepared to attend a courthouse closer to where she is ordinarily resident”. However, when the Application was heard, submissions were made by the Crown only with respect to remote testimony from Ms. Sharpe’s home.

[14] When a Court is required to assess “whether it is appropriate” to make such an Order – a specific location and details are required to satisfy the requirements of s. 714.1, especially where controversial evidence is to be heard and the Application is opposed.

[15] The issue of security of the location can be somewhat addressed by requesting at any time that the witness scan the room with her computer. It is not an ideal solution but if concerns arise during a proceeding, steps can be taken by the presiding justice to remedy the situation. There is of course no ability to ensure security when a witness is testifying from a private location and the video link is lost.

[16] I am content that the solemnity of the courtroom can be achieved by video link. Presiding Justices are gowned and the decorum of a courtroom is maintained during the proceeding, however, the site where the examination occurs also contributes to that end. In Zanganjori, Justice Bawden states in dealing with an Application for remote testimony under s. 714.2, at paras. 23 and 24:

“23. Although it may be convenient and economical to have a witness testify from her living room using her own laptop computer, it is not appropriate for a criminal trial. I would only permit video testimony in such circumstances as a last resort.”

“24. This Court cannot order that the witnesses testify from an American courtroom. Although the Crown would do well to investigate that possibility, the principles of fundamental justice do not demand that witnesses testify from an actual courtroom in order to be heard via video link. Most of the same testimonial benefits could be achieved if the witnesses were to testify from a video conferencing facility which is designed for legal proceedings. Such facilities are commonly used to discover witnesses in civil proceedings. The obligation is on the Crown, not the witnesses, to investigate the availability of an appropriate facility.”

[17] Concerns regarding the use of video technology arise particularly in cases where credibility is at issue. Justice Bawden in Zanganjori comments:

“Justice Sheard addressed the argument that counsel must see and hear a witness in person in R. v. Belem, 2017 ONSC 2213 (Ont. S.C.J.). I agree with Her Honour’s comments and have nothing to add. It is now commonplace to hear testimony through high definition video technology and it can be safely said that nothing of consequence is lost in observing the intonation, facial expression or body language of the witness. In a courtroom which is properly equipped with monitors, the opportunity to observe an hear the witness is often significantly improved for the jurors, the judge and the defendant himself.”

“The right of the defendant to confront his accuser in open court is an important one. The weight to be placed on this interest, however, will vary depending on the nature of the evidence given by the witness. In this case, the two witnesses who are seeking to testify by video are the only witnesses to the offences charged and their credibility is very much in issue. This factor certainly pulls in favour of requiring their physical presence at trial.”

[18] The reliability of the technology is of paramount importance to a virtual trial.

[19] Defence counsel has raised the limitations of ZOOM technology where the contemporaneity of questioning is hampered. There is an unavoidable delay experienced and there is the possibility of overlap of questions and answers.

[20] He submits that there are experiences of poor audio or video reception. Often interruptions are experienced by virtue of the technology used and relied upon by the witness during remote testimony.

[21] I agree that use of modern video technology does not hamper the trier‑of‑fact in assessment of the evidence even where credibility is a crucial issue and the offence is serious, but that is conditional upon the quality of the audio and video evidence. [6]

[22] I am satisfied that “use of video technology does not in and of itself deprive an accused of a fair trial”. [7] It is required, however, that the means by which evidence is to be presented is satisfactory.

[23] One of the many considerations identified by Wolfe, J. in Teotia with respect to virtual testimony was:

“The Crown should test the operation of the technology prior to the calling of the witness to determine that these minimal requirements are met and the “virtual presence” of the witness is achieved without interruptions.”

[24] As we increasingly rely during the pandemic on technology, proceedings have been from time to time interrupted due to equipment failure, Internet problems and user error. Despite the fact that courtrooms are now retrofitted with state of the art technology, at times poor audio or video reception for one or more participants occurs. When a technical problem occurs during the introduction of evidence which is controversial it can be disruptive. In Singh and Belem, it is suggested that the Applicant seeking remote testimony should be providing the Court with information about the technology being used. Many problems which arise are due to outdated technology or inadequate Internet reception.

[25] The overwhelming consideration in this case is ensuring that the accused has a fair trial.

[26] Where possible and feasible, remote testimony is encouraged, however, where remote testimony is opposed, controversial evidence is to be heard, concerns are raised as to the fairness of trial, then the location where questioning is to take place and the reliability of the video link are of significant importance.

[27] To illustrate my point that Applications should provide specific information, I was asked to consider remote testimony from the witness’ home. I advised that I was prepared to dismiss the Application. I was then asked to consider remote testimony from the Brantford courthouse. I then adjourned the matter to today’s date to test the video link with the Brantford courthouse. I was advised today that it could not be done due to restrictions caused by the pandemic.

[28] Before an approval is sought for remote testimony, some effort must be made to determine if it is feasible and appropriate.

[29] The prayer for relief in the Application should outline what specific Order the Crown seeks so that the circumstances can be specifically addressed and it is not a moving target.

[30] From the outset, Mr. Marley advised that the trial could be adjourned to a future date when concerns over the pandemic have dissipated and based on his client’s instructions he waived delay to the next trial date. The trial date is vacated and the matter adjourned to March 8, 2021 to set a new date for trial.

[31] For the reasons given, the Application is dismissed.

Dated: March 4, 2021 (Signed) Justice Ronald Marion