WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Algoma v. T.P., 2021 ONCJ 150

DATE: 2021·03·12

COURT FILE No.: Sault Ste. Marie 122/18

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA,

Applicant,

— AND —

T.P. AND T.M.,

Respondents.

Before Justice Romuald Kwolek

Heard on February 22, 2021

Reasons for Judgment released orally February 22, 2021

written decision released on March 12, 2021

John Rossi ........................................................................... counsel for the applicant society

Lynn Tegosh .................................................................... counsel for the respondent mother

Shadrach McCooeye ......................................................... counsel for the respondent father

Lindsay Marshall ........................................ counsel for the Office of the Children’s Lawyer,

legal representative for the two eldest children

KWOLEK J.:

[1] The motion at Tab 8 seeks the following relief:

An order that:

a. counsel for the CAS, John Rossi be entitled to attend the trial by Zoom;

b. Renee Connolly, “instructing” worker for the CAS be entitled to attend by Zoom;

c. An order that any “Society witnesses …that are concerned about their personal safety” be entitled to attend by Zoom.

[2] On the first return date of the motion, on February 17, 2021 counsel for the CAS specifically indicated that the witness Dr. Lefave wished to attend by Zoom. The CAS also indicated that three other witnesses to be called by the CAS may wish to attend by Zoom.

[3] At the hearing of the motion, the court was advised that the CAS was requesting that all of their witnesses attend by Zoom, and that one witness be present as the “instructing worker” for the entire proceeding, and not be subject to the standard order excluding witnesses.

[4] The court provided an oral decision on February 22, 2021 and indicated it would provide further and better written reasons.

[5] The motion brought by counsel for the OCL, Lindsay Marshall, requested that she be permitted to attend the upcoming trial by Zoom.

Issues in Dispute

[6] Counsel for the father specifically objected to witnesses, whose credibility was crucial, attending in person rather than by Zoom and objected to the instructing CAS worker being present throughout the trial as an exception to the order excluding witnesses

Material Filed in Support of Motions

[7] OCL counsel filed an affidavit by a staff member indicating that due to her “personal family circumstances and concerns with Covid-19” she is concerned attending the 5 day trial in person.”

[8] Two other counsel, including counsel for the mother and the father T.M. initially indicated that they wished to attend in person.

[9] The mother herself had issues with childcare and ultimately elected to attend remotely for the motions and trial, as did her counsel.

[10] The court was able to utilize a Superior Court courtroom to hear the motions and for the hearing of the voir dire/trial which allowed the court to proceed with a hybrid hearing, allowing counsel, the parties and witnesses to appear in person or by Zoom.

[11] At the hearing of the motion there was no opposition to counsel appearing by Zoom. There was no issue with one counsel, Mr. McCooeye attending in person with his client, Mr. T.M. who is in custody. Mr. T.M. could not be accommodated to attend from the video suite at the jail for a number of reasons, including the lack of any video suite availability for the whole week, and in any event, it appeared that Mr. T.M. wished to attend in person.

[12] In support of the CAS motion is an affidavit sworn by a CAS staff member.

[13] That affidavit indicated that Mr. Rossi, counsel for the CAS, due to concerns about Covid-19, would prefer to attend by Zoom as would the instructing CAS worker, Renee Connolly, and other unnamed witnesses.

[14] Material filed in support and attached to the affidavit included: an endorsement by Justice Kukurin dated February 12, 2021, relating to another trial that is to proceed entirely by Zoom. Justice Kukurin’s endorsement includes a reference to a joint memorandum of Chief Justices Strathy, Morawetz and Maisonneuve dated February 12, 2021. That memorandum is also attached to the affidavit.

Analysis

[15] Justice Kukurin directed that the trial that he was involved in would be held by Zoom. That trial differs from this trial in a number of ways. Justice Kukurin noted that most of the witnesses and parties in that trial did not actually reside in Sault Ste. Marie. An in person trial would necessitate extensive travel for some of the parties, which was a problem during the pandemic. In addition, the child in that case suffers from leukemia which raised additional health issues with respect to travel by that child or any caregiver. In addition, Justice Kukurin was concerned about his own health and safety. It did not appear that any counsel nor any parties opposed the virtual trial. Clearly in that case the cost, and the risks of contracting Covid in travelling great distances, would militate in favour of a virtual trial.

[16] In this case, we do not have a consensus as to how the trial is to proceed. However, all of the witnesses and counsel are available locally.

[17] The memorandum authored by the three chief justices noted that as of February 12, 2021, four Covid-19 outbreaks had been declared in four courthouses.

[18] That memorandum included a directive relating to the wearing of masks that included the following:

1. All persons from the public will be required to wear masks unless they have a medical reason preventing them from wearing masks;

2. All court staff will be required to wear masks at all times in public areas and in the courtrooms;

3. There is a strong recommendation that all judicial officers wear masks while in the courtroom including on the dais, even if behind plexiglass;

4. There was a strong recommendation that all counsel, self represented parties and witnesses remain masked while speaking.

[19] An Ontario Court of Justice memorandum dated January 13, 2021, issued by our Chief Justice, during the period of a temporary lockdown in Ontario, indicated and urged all judicial officers to use remote proceedings unless an in person appearance “is required to ensure meaningful access to justice.”

[20] The comment that all proceedings should be remote, “unless an in-person appearance is required to ensure meaningful access to justice” is also repeated in a memorandum online from our court updated on January 14, 2021.

[21] In answer to a question posed by counsel, the normal presumption that court hearings would occur in person has been currently displaced due to Covid-19.

[22] The CAS also produced the case of Arconti v. Smith in which the court ordered an examination for discovery to proceed remotely.

[23] My trial management conference endorsement dated November 19, 2020, directed the parties to all appear in person and if any one did not wish to attend in person then an application or motion should be brought well in advance of trial. Frankly, the court anticipated that such motions may be brought. The motions should have been brought much earlier to allow the court to deal with this matter prior to the commencement of the voir dire/trial.

[24] The court does recognize the recent changes to the landscape of Covid-19 in Ontario as being a reason for the late motion.

[25] Counsel for the father is opposed to the CAS instructing employee being present during the court proceedings prior to her testimony as potentially compromising her testimony. The issue in this preliminary voir dire is the admissibility of the hearsay evidence of children, much of which has been audio and videotaped, to determine whether or not they were molested sexually and whether as a result there is a risk of sexual harm to the children in these proceedings.

[26] Under the circumstances, I granted the request of the one CAS worker to be present virtually during the entire voir dire. If any issue arose with her testimony, the court would consider the fact that she had been present during the course of the entire voir dire in assessing her evidence. A party, or a party’s representative is normally entitled to be present during the entire trial.

[27] On the issue of the personal attendance of witnesses, counsel for the father submitted that witnesses whose credibility is in issue, should testify in person, rather than remotely. Specifically, he wished the mother of the children, whose utterances to the mother were sought to be admitted into evidence, should testify in person. Her credibility, according to counsel for the father, is crucial in these proceedings.

[28] Other judges in other jurisdictions have held trials by Zoom in criminal, family and in child protection matters including trials in northern Ontario jurisdictions. Many witnesses have testified remotely in both Ontario Courts of Justice and in the Superior Court of Justice during the course of the pandemic.

[29] In analogous situations in the criminal courts, this court has granted applications under 714.1 for witnesses to appear remotely for testimony at criminal trials.

[30] We have currently relatively few cases of Covid-19 locally although there are currently active cases in our region especially in the Sudbury area. We have traditionally had numbers that would have put our region in the green zone or the lowest level of risk due to numbers and cases per 100000 population. We are currently designated as being in the yellow zone, the next level up from the green zone. We have few current active cases in the district of Algoma.

[31] We are approximately, one year into the Covid-19 pandemic. Much of our province ground to a halt in March of 2020 due to fears of the pandemic wreaking havoc with our health system and our capacity to treat individuals with Covid-19. Many trials, including the hearing set for this matter in March 2020 were adjourned. There are now issues with a backlog of cases set for trial in our jurisdiction.

[32] We are far from being in a state of normalcy with our courtrooms being equipped with extensive plexiglass, physical distancing within the courts, the limitation on numbers in our courtrooms, mandatory masking, extensive use of virtual hearings, sanitizing of spaces after the testimony of witnesses or after the attendance of individuals in the court room, and regular sanitizing by additional cleaning staff of regularly touched surfaces. Hand sanitizer is now available at many locations in the courthouse and in the courtrooms and we are all urged to wash our hands regularly.

[33] Given courtroom participants will generally be masked to protect the safety of those in the courtroom, the testimony of witnesses in the courtroom may be less helpful to the trier of fact than those witnesses who are able to testify before a camera or other device such as a laptop where the sound and audio quality is high and their faces are fully exposed and projected onto a large screen or individual computer monitors. The court does not accept that a witness must appear in person at the courthouse, under current conditions, masked and surrounded by plexiglass, to ensure a fair trial or access to justice, even if their credibility is in issue.

[34] As of March 3, 2021, Public Health Ontario has confirmed 303,763 cases of Covid-19 and 7014 deaths. Worldwide, Johns Hopkins University as of noon on March 3, 2021 has confirmed almost 115 million cases with over 2.5 million deaths. The vast majority of those who have died have been over 70 years of age.

[35] Currently, our province has averaged about 1000 cases of Covid-19 per day with Toronto and Peel region reporting significant case through much of the pandemic. No area of our country has been left untouched by the pandemic although some areas have been more affected than others.

[36] Locally, as of this date, we have been relatively fortunate with approximately 200 cases reported in the district of Algoma since the start of the pandemic with four deaths and a minimal number of hospitalizations. The majority of those cases and deaths and hospitalizations have occurred in our region since December 2020. As of March 3, 2021, we have five active cases in the district of Algoma.

[37] Other areas in Northern Ontario such as Sudbury and Thunder Bay currently are not faring as well as we are and have many more cases than we do. As of March 3, 2021, Thunder Bay had reported 1709 cases with 374 active cases. Sudbury has reported 677 cases with 98 active cases. Since then their cases have continued to rise. There is new concern for various mutated versions of the coronavirus which are apparently more contagious than the original strain. Cases of coronavirus have greatly increased in northern communities recently.

[38] Vaccinations are being distributed but as of March 3, 2021 less than five percent of the population in Ontario has been vaccinated although it is hoped that the rate of vaccinations will increase soon.

[39] The court must consider local conditions when assessing the order that it must make.

[40] As a judge I have control of my own courtroom within the parameters of the directions that have been given to me by the Chief Justice, our regional senior judge and our local administrative judge. I have the responsibility to control the processes within my own courtroom and to ensure the safety and protection of all judicial participants including staff, the parties, counsel and the judiciary.

[41] In many cases, remote testimony by Zoom may actually enhance access to justice as is set out in Justice Kukurin’s case, with many out of town parties.

[42] If the witness is testifying remotely, the witness may be able to testify without a mask with all participants better able to see the face of the witness. Demeanor may better be assessed remotely under these circumstances. In addition, the requirement to attend wearing a mask for all counsel has sound problems of its own. The existence of plexiglass and masking will affect the sound quality as well as the visibility of witnesses for in person proceedings

[43] This court gave a direction that certain pre-conditions be met before the court would allow remote testimony in a section 714.1 application in a criminal case of R. v. Milliken, 2020 ONCJ 356. The court’s observations in that case have relevance in family proceedings as well.

[44] Justice Condon similarly faced an application by the Crown relating to an application to have three police witnesses testify remotely in R. v. Molland, 2020 ONCJ 322. In that case, the application judge ultimately granted the application subject to certain terms and conditions that he imposed regarding such testimony. The testimony of those officers was from a location at the Sault Ste. Marie Police Service building.

[45] Although, Justice Condon acknowledged that the risk of transmission at the city of Sault Ste. Marie of Covid-19 appeared to be low, at the time that he rendered his decision, he had this to say about the issue of risk of Covid-19 at paragraphs 76 and 77:

76. Court clerks and court reporters are positioned commonly within a few feet of any witness. The dais for judicial officers is also generally in close proximity to the location of a witness in the courtroom in order to facilitate the in-person hearing and seeing of a witness.

77. In the case of the officers who are the subjects of the application, there is a risk that any one of them has been exposed to the coronavirus in the Sault Ste. Marie community. That risk is low, given the ongoing limited number of coronavirus cases in the Algoma District. Low risk and no risk are not the same. It cannot be ignored by this court that Covid-19 is a potentially deadly virus. What is to be gained by potentially exposing Mr. Molland, defence witnesses, counsel, court staff, others working in the Sault Ste. Marie courthouse … when a suitable technological alternative, which does not impair or compromise … right to a fair trial, including the opportunity to make full answer and defence, is readily available?

[46] A number of pre-pandemic cases addressed the suitability of remote or virtual testimony. Justice Johnson in R. v. DRD., [2007] O.J. No 1806, stated: “…there is nothing by way of video link that could prevent cross-examination that would be appropriate to meeting the test of allowing the accused to make full answer and defence.”

[47] Justice Allen in R. v. Lucas-Johnson, [2018] O.J. No. 2013, indicated that current video link technology “…is sufficiently sophisticated to capture a variety of non-verbal cues and expressions…”. This court agrees that depending on the clarity of the transmission and the size of the witness’s face that appears on a screen, a video link may in fact provide more definition and greater clarity of the witness’ facial features and expressions than had the witness testified in person. If the transmission is of poor quality such virtual hearings may in fact hamper the fairness of the proceeding.

[48] The testimony of witnesses by video has been allowed in other pre-Covid cases such as a home invasion in R. v. Belem, [2017] O.J. No. 6577, when the witness suffered from a medical condition and a severe social phobia; R. v. Dapena-Huerta, [2017] O.J. No. 6577, a case of a trial by judge and jury where the witness suffered from a condition that prevented her from leaving the home but where credibility was largely not in issue; R. v Husbands, [2018] O.J. No. 7112, where Justice O’Marra of the Ontario Superior Court allowed the application in a second degree murder trial where the safety of the witness was one of the concerns raised, and credibility was in issue.

[49] In family proceedings, the courts have regularly used remote testimony of witnesses at trial. It was expected that the witness and counsel would arrange a test run of the location and equipment in advance to confirm that the video link connection was satisfactory.

[50] Even if the technology was generally satisfactory, there have been circumstances where the equipment was not working properly or was not working sufficiently well to ensure that the testimony provided meaningful access to justice. We have had province wide issues with Zoom, from time to time, during the pandemic.

[51] It is acknowledged that, but for Covid-19, all of the witnesses, counsel and the parties in this case, would, in the normal course, attend in person at the courthouse.

[52] The court finds that Covid-19 is an exceptional circumstance that justifies the greater use of remote attendance and remote testimony.

[53] The best protection against Covid-19 is to reduce the attendance of people at the courthouse. In Ontario, due to Covid-19, courts and judges are advised to provide services remotely, when prior to Covid-19 such services would have been provided by in person attendances. All justice system partners are encouraged to minimize the attendance of persons at the courthouse unless their attendance is necessary.

[54] It is acknowledged that the best defence against the spread of the virus is the lack of contact between individuals. Such lack of contact will best be facilitated by allowing remote testimony to occur, when possible, as long as such testimony can occur without jeopardizing the fairness of the trial and without compromising meaningful access to justice.

[55] This court will not jeopardize the safety of justice participants if it is not necessary to do so.

[56] The practice in our family courts, and the general case law, as described above has established that, if the remote testimony of the parties and their participation does not affect access to justice for the parties and their ability to see and hear the proceedings, then in the interests of safety and access to justice, the parties who wish to proceed remotely can do so and the parties who wish to attend in person can do so as well, always subject to the direction of the court. Access to hybrid courtrooms is problematic in Sault Ste. Marie in the Ontario Court of Justice due to the availability of technology and size of courtrooms that can accommodate hybrid proceedings. I had been advised that coincidentally a courtroom had become available this week, that would normally be designated as a Superior Court of Justice courtroom that could accommodate a hybrid hearing.

[57] If the sound quality and the video quality of the transmissions are adequate, and given the exceptional circumstances of Covid-19, this court finds that access to justice and fairness in the court proceedings will not be jeopardized by the hearing of the witnesses by zoom. The court will not differentiate nor order certain witnesses to attend in person, if they do not wish to do so, as long as their testimony does not compromise meaningful access to justice.

Conclusion

[58] As a result, I will grant the motions, subject to certain pre-conditions as set out below. I will order that John Rossi counsel for the CAS, Lindsay Marshall, counsel for the OCL and Lynn Tegosh counsel for the mother, as well as the mother herself, may appear by Zoom. Counsel for the father and the father T.M. may attend in person. In addition, all CAS witnesses, who wish, may attend by Zoom if the sound quality and the video as well as the location of the testimony are satisfactory.

[59] Technology when it works can enhance access to justice. When it does not work well it can impede meaningful access to justice. In addition, the witnesses and the parties who attend remotely or who testify remotely must be aware that they are present in a courtroom even if their appearance is virtual.

[60] As a result, there will be certain pre-conditions to my order allowing a hybrid hearing to occur:

1. A hybrid court must be available during the course of the voir dire hearing.

2. The remote testimony will only proceed if the quality of the audio and video available to all participants will not jeopardize the fairness of the hearing; ideally such equipment and locations should be tested in advance. In the event of a temporary loss of an internet connection or a temporary deterioration of the signal that interferes with the meaningful progress of the trial, the court may take such break as is necessary to ensure the signal is appropriate. In the event of a lengthy disruption in the signal the court may give further direction to the participants including ordering them to attend in person.

3. The court will address the witnesses to ensure that they are aware that their presence virtually is an extension of the court proceeding and the witnesses shall be subject to the direction of the court and when testifying should behave as if they were on the stand in the courtroom. Counsel are subject to the same directives.

4. To prevent further issues with transmission of the virus, all witnesses will be asked to affirm to tell the truth, without the necessity of handling any object such as a Bible.

5. The testimony of the witnesses will occur at an approved location. In this case clear direction and information should be provided to ensure that the transmission is acceptable. If the transmission is not acceptable then the party or counsel may either have to move to another acceptable location or appear in person to testify.

6. Only one witness shall be in the designated location at a time when the testimony is being provided, as well as potentially the individual who provided the testing of the equipment, or his/her designate, who may remain in the location, if not a witness, if necessary to ensure the testimony can proceed.

7. No other person shall be present in the location when each of the witnesses is testifying unless otherwise ordered by the court.

8. None of the witnesses shall communicate with the other witnesses until all witnesses have completed their testimony, or as may be subject to further direction of the court, in order to ensure the independence of the testimony and the neutrality of the site and the perception of fairness in the trial process.

9. While the witness is giving evidence, the camera shall be positioned so that the trial participants shall clearly see the full facial features of the witness.

10. While the witnesses are testifying, they shall always keep their camera or microphone on unless the judge orders otherwise. Should an issue arise when the witness may have to be excluded from the courtroom, the witness will temporarily be placed in a break out room until the issue is dealt with.

11. Any documentation or other evidence that may be required to be produced to the witnesses, or that may be reviewed by the witnesses, must be capable of being produced to them remotely, or should be in their possession with a physical paper copy, with access to such documentation available to other counsel and the court.

12. If the parties have paper documentation or other physical evidence such evidence should be provided and be available to the court in advance of the testimony of the witness.

13. If available and necessary, each of the witnesses shall use headphones when they give their testimony, and counsel shall also use headphones, to ensure consistency with respect to the transmission of the audio and to prevent feedback unless the use of other microphones, such as those located in their device, are clearly satisfactory.

14. Background noise must be kept to a minimum when a party is testifying and if parties or counsel are not speaking they should mute their microphones.

15. Any counsel or parties who attend in person at the courthouse must wear masks during the entire time that they are in the courtroom or in public areas of the courthouse unless otherwise ordered by the court.

16. If the witness is using a laptop or other camera device, the court may give direction to the party to ensure that the party is seen clearly on video, including dealing with issues such as background lighting and the location of the recording device.

17. If a party or counsel wishes to move away from the camera, when they are not speaking or testifying, they are invited to temporarily suspend the video feature on zoom so as to lessen distracting other participants in the hearing.

Released: March 12, 2021

Justice Romuald Kwolek

Ontario Court of Justice