Her Majesty the Queen v. Akwasi Poku Adu-Agyei, 2021 ONCJ 146

Court File No.: Brampton 3111 998 18 6167 Date: 2021 01 13 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Akwasi Poku Adu-Agyei

Before: Justice G.P. Renwick

Heard on: 13 January 2021 Reasons for Judgment released on: 13 January 2021

Counsel: J. Bellehumeur, counsel for the Crown D. Butler, counsel for the defendant Akwasi Poku Adu-Agyei

Application for Video Link Evidence

Reasons for Decision

RENWICK J.:

Introduction

[1] The Respondent is charged with one count of sexual assault. The prosecutor has applied under s. 714.1 of the Criminal Code to permit its main witness, the complainant, to testify using video link technology from her home. The application is based upon the complainant’s personal circumstances (she is the sole care-giver to her 12 year old child) and the global Coronavirus – COVID 19 – pandemic.

[2] The Respondent opposes the Application primarily on the basis that there is an unfairness in permitting the prosecution’s witness to testify from her home. In oral argument, the Respondent raised the following concerns respecting the main prosecution witness testifying from her home rather than in a courtroom:

i. The possible risks of evidentiary concerns (witness tampering or influence, reduced psychological controls, technological limitations); and ii. Trial fairness and perception.

[3] The Application was in writing and included an affidavit from a Victim/Witness Services Worker who is assigned to assist this complainant. The Application contained no other evidence. Specifically, the Application was silent respecting:

i. The nature of the alleged sexual assault (is it serious or minor); ii. How critical is the complainant’s evidence to this prosecution (are there other witnesses; is credibility the sole issue for the court); iii. The location of the complainant and the suitability of the location from where she proposes to testify; iv. Whether there are there specific issues respecting the health or well-being of the complainant if she is required to testify in person (and any ancillary costs for childcare or travel, etc.); v. Are there exhibits that must be showed to the complainant while she testifies (and any limitations if the witness appears remotely); vi. Are the Respondent, his counsel, and the prosecutor attending the court personally or by video link (the parties acknowledged that the trial was set before the global pandemic and was originally anticipated to proceed with all participants in court); and vii. The technology involved (is it effective: is there any time-lag; what view of the witness will trial participants have and vice-versa; are the viewing screens and speakers in the specific courtroom adequate).

[4] For the reasons that follow, notwithstanding the well-written and persuasive factum filed in support, I am dismissing the Application.

Analysis

[5] The decimal subsections of 714 of the Criminal Code provide for alternative technological mechanisms for the reception of testimony given by witnesses who testify outside of the courtroom. Section 714.1 may be used to accommodate defence or prosecution witnesses who are situated in Canada, where “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 [sic] 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 Respondent framed his concerns as follows:

i. There is no evidence about the suitability of the complainant’s home, who else may be present, who could possibly interfere with or put pressure upon the complainant while she testifies; and ii. A loss of psychological oath enhancements. The solemnity of a court, the physical appearance of the courtroom, the physical presence of the judge, the Respondent, and the lawyers, the presence in court while taking the oath or affirmation and while testifying are enhancements to the requirement to tell the truth while testifying and the truth-seeking function of the court which cannot be replicated to a sufficient degree by remote testimony.

[7] I agree that practical logistics are very real concerns that ought to be addressed in this type of Application.

[8] While there are several cases that discuss similar applications, I have not been provided with any binding authority, no, have I found any cases that direct how I must exercise my discretion in the determination of this Application. The prosecutor relies on several cases while none were presented by the Respondent.

[9] In R. v. Burden, [2017] O.J. No. 940 (O.C.J.), Mr. Justice Wakefield of this Court dismissed a similar application. Justice Wakefield was referred to R. v. Turner, [2002] B.C.J. No. 2576 (B.C.S.C.), which concerned a similar motion under s. 714.2 of the Criminal Code to permit the virtual appearance of a witness in the United States. Justice Wakefield also considered R. v. D.P., [2013] O.J. No. 2232 (S.C.J.), a decision of Mr. Justice Ellies, who also dismissed a similar pre-trial application. Justice Ellies was primarily concerned with the truth-seeking function of the court and the limitations imposed by the use of this technology:

But the accused, the Crown and the witness are not the only participants in the trial process. The ability of the court to fulfil its truth-finding function is also important. Unlike the situation at the preliminary inquiry, credibility will be a major issue at the trial. While demeanour, by itself, is an unreliable way to determine credibility, it is nonetheless one facet of the way in which the court in a case like this must do so. In my view, when it comes to demeanour, there is no substitute for being near the witness as she testifies. It is no accident that witness boxes are placed next to or near the judge and jury in almost every courtroom across the country. [1]

This consideration suggests that there may be a distinction between witnesses depending on their role, the issues at play, and the significance of the evidence to advance the case of the party seeking to rely upon the provision.

[10] In Burden, the complainant, who resided in Nova Scotia, was the sole prosecution witness. Justice Wakefield considered the value of virtual presence and the use of technology in addition to the value of hearing and observing the demeanor of witnesses who testify in court. In the end, in light of the lack of an evidentiary foundation to justify resort to s. 714.1 of the Code, Justice Wakefield dismissed the application to permit the witness to testify by video link.

[11] Like Justice Wakefield, I am being asked to infer witness inconvenience (the affidavit evidence does not speak to how easily, or not, childcare could be arranged and any attendant costs) and I have been provided with little information respecting the technology to be used.

[12] My understanding from my own schedule is that this trial will proceed next week in courtroom #111, which is a new courtroom in the new addition to the courthouse. From my experience in several of the new courtrooms, it is obvious that there are adequate video monitors, microphones, and speakers to accommodate remote testimony.

[13] However, several questions remain unanswered: what actual inconvenience or medical concerns exist for the witness to testify in person, are the technologies adequate (including at the home of the witness where she is requesting to testify), and how does the prosecutor anticipate showing documents or other exhibits (if any) to the witness by either party.

[14] Justice Sheard considered a similar application made during a jury trial in Ottawa: see R. v. Belem, 2017 ONSC 2213, [2017] O.J. No. 1882 (S.C.J.). In that case, the prosecution called two witnesses (one of which was a psychiatrist) to testify about the cost, inconvenience, and medical condition of the witness upon whose behalf the application was brought. The evidence revealed that the witness had fears for his physical safety, there were concerns for his mental well-being and physical condition, and there was evidence adduced respecting the costs of travel and accommodations to bring the witness from British Columbia to Ontario. In that case the court also considered the defence concession to permit the witness to testify outside the courtroom using closed-circuit television, if counsel could be in the same room with the witness.

[15] The court in Belem considered similar applications in R. v. Leblanc, 2014 NSPC 116, 361 N.S.R. (2d) 1, and R. v. Young, 2000 SKQB 419, 201 Sask.R. 158 and referred to eight factors identified by the court in Young, in addition to the statutory factors found in s. 714.1. Although Belem is not binding, I find the analysis helpful.

[16] As did the court in Belem, I will consider the eight factors suggested by Mr. Justice Wright in Young. They are:

(1) Will a video appearance by the witness impede or impact negatively on the ability of counsel to cross-examine the witness? (2) The nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel. For example, police and technical witnesses who testify to routine matters with respect to exhibits and other matters that would not attract any particular objection on the part of the accused's counsel; (3) The integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom; (4) The distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance; (5) The convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, or personal life; (6) The ability of the witness to attend from an area that makes it difficult for travel or travel in a reliable fashion; (7) The cost of having the witness attend in person; and (8) If the witness is effectively beyond the control of the court in the trial jurisdiction, and whatever extraterritorial powers a judge may have over the person. [2]

[17] The first two factors relate to the cross-examination of the witness and the potential hurdles for cross-examination if the Application is granted. As anyone who has ever attended a meeting by video conferencing is aware, the better the technology, the better the experience.

[18] Counsel for the Respondent did not suggest any inherent anticipated difficulties in cross-examination of the witnesses by the use of video technology, but given the assumed import of the complainant’s testimony, the cross-examination of the complainant is likely more critical to the defence than the cross-examination of any other witness. If there is any delay in the video technology that could affect the cross-examination, this may compromise a critical component of the Respondent’s defence.

[19] In response to this concern, the prosecution submits that trials often involve the use of interpreters, where witnesses may have slightly more time to consider their answers while testifying. Also, in cases where young witnesses testify by closed-circuit television from outside of the courtroom, similar concerns exist. These issues rarely raise issues of fairness. Lastly, the most perfect procedures are not required to ensure trial fairness, only reasonable procedures.

[20] At least one court has concluded that the use of similar technology may actually enhance the observation of the witness by the trier of fact, because the camera angle, screen resolution, and proximity of the camera or the ability to see a close-up of the witness while testifying may assist in the observation of witness demeanor. [3]

[21] That said, I remind myself that consideration of demeanor while testifying is permissible, but an over-reliance on demeanor evidence is problematic. [4]

[22] It is difficult to quantify the extent to which, if any, having the complainant testify remotely would reduce the impact of the cross-examination, or otherwise negatively affect the Respondent’s defence.

[23] I am satisfied that a trier of fact could limit the weight given to the evidence of a witness where remote testimony relieved the witness from the attendant stresses of testifying in open court or the technology otherwise provided the witness an advantage while testifying.

[24] Without precise information to satisfy the court that the technology will not negatively affect the cross-examination of the complainant, and in light of the advantages of video link testimony (full and often closer visual observation of the witness than would be the case in a courtroom), these factors are neutral in this case.

[25] As things stand, the third factor favours denying the Application. In the absence of any evidence on the point, I am unconvinced that the room to be used will correspond to the solemnity of the proceedings and remain free from possible sources of witness interference.

[26] The fourth and fifth factors concern witness inconvenience. I have been given no evidence or information to determine what, if any, impact the refusal of the Application would have upon the witness. That said, it is obvious that there would be some disruption to the life of the witness to testify in person. The complainant has a child at home who appears to require her presence for supervision. This is not an insignificant consideration and militates toward granting the Application.

[27] When the trial was set there was no global pandemic and the complainant may have rightly expected her child to be physically present in school. The child is 12 years old. In order to meet its burden on these factors, I would require evidence to understand why it could be detrimental to leave this particular child alone while the complainant testified at court, or the costs or risks associated with childcare.

[28] Without evidence, it is difficult to come to any decision on the impact of the sixth, seventh, and eighth factors listed by the court in Young.

[29] In this case, simply applying the eight factors suggested by other courts yields an indeterminate result. If the video technology is of high quality and there are no technical issues that might impede defence cross-examination, the use of this technology should have no effect upon either side’s presentation or defence of their case. However, there are questions about the site from which the evidence will be received and the technology sought to be used that remain unanswered.

[30] This Application not only implicates trial fairness (will cross-examination of the primary prosecution witness be affected by the use of technology), but also the appearance of fairness. Assuming all the other participants will be appearing in court, there may be a perceived unfairness if the prosecution’s main witness, who is presumably under a subpoena, physically able to appear, and in this jurisdiction, is permitted to testify remotely. This is not an insignificant concern. [5]

[31] Given that there are some questions that remain concerning the quality of the technology, and the lack of an evidentiary basis to conclude that it would be inappropriately inconvenient to require the complainant to testify in person, I am not prepared to grant the Application in relation to the complainant.

[32] Does the global pandemic alter the analysis? It appears that the Ontario Court of Justice will remain open during the provincial state of emergency and recently announced stay at home order. [6] The Ontario Court of Justice has posted the following notice on its website:

Message re COVID-19 (Updated December 21, 2020)

The Ontario Court of Justice is committed to providing meaningful access to justice despite the ongoing challenges presented by COVID-19.

With the government’s December 21, 2020 COVID-19 announcement, the Court recognizes that some counsel, parties, and justice participants may be unable to attend a courthouse in person. The Court has encouraged all judicial officials, when exercising their authority, to be flexible and to respect why an individual may not be able to attend a court hearing in person, including underlying health conditions, living or caring for someone with underlying health conditions, or other issues arising from the pandemic.

Judicial officials, parties and counsel are encouraged to actively explore whether all, or any portion, of trials or other hearings that would otherwise be in person can be conducted using remote technology. Similarly, the Court encourages counsel and parties to be accommodating when requests for virtual hearings or other arrangements are made by opposing counsel or parties.

The health and safety of all court users remains a top priority for the Court. For those who appear in person, the Ministry of the Attorney General has implemented a broad range of health and safety measures at all courthouses open to the public. The measures are based on the expert advice of Public Health Ontario. It remains of critical importance that all who attend a courthouse in person be vigilant in maintaining the public health and safety protections in place at the court facility. [7]

[33] I recognize the wisdom of the Chief Justice’s recommendations contained in the message above. However, this Application is opposed. This Respondent has specific concerns about the fairness of his trial if the Application is granted. I cannot require the Respondent to concede the Application simply because that is reasonable in the circumstances.

[34] The government has gone to great lengths to satisfy justice system participants and employee associations that courts are safe and they may operate in traditional ways. Witnesses, lawyers, defendants, court staff, and justices must attend court as required, unless ordered otherwise. I have no specific information or evidence to justify departure from receiving viva voce testimony from the complainant in this trial.

Conclusion

[35] Section 714.1 of the Criminal Code is a valuable mechanism to reduce the expenses associated with bringing out of town witnesses to testify in person, where technology exists to accommodate the virtual appearance of the witness during a trial. The section requires a balancing of factors to reduce cost and witness inconvenience in appropriate cases. The section is not mandatory, nor applicable merely because it exists. That said, it is not a high threshold to establish the utility and applicability of the section in appropriate cases.

[36] In consideration of the statutory factors and all of the other considerations referred to above, the Application, as framed, is dismissed.

Released: 13 January 2021 Justice G. Paul Renwick

Footnotes

[1] R. v. D.P., [2013] O.J. No. 2322 (S.C.J.) at para. 7. [2] R. v. Young, 2000 SKQB 419, [2000] S.J. No. 590 (Q.B.), at para. 8. [3] R. v. Allen, [2007] O.J. No. 1780 (C.J.), at paras. 7-8. [4] For a helpful discussion see R. v. Mattu, [2019] O.J. No. 3796 (C.J.) at para. 13. [5] R. v. Molland, [2020] O.J. No. 3107 (C.J.), at para. 48. [6] Yesterday, the Ontario government announced new measures to curb the spread of COVID-19. See: https://news.ontario.ca/en/release/59922/ontario-declares-second-provincial-emergency-to-address-covid-19-crisis-and-save-lives. [7] For this announcement see: https://www.ontariocourts.ca/ocj/.