Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: April 6, 2021 COURT FILE No.: Halton Info #1211200 0831

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ZACHARY MISCHUK

Before: Justice Scott Latimer

Heard on: March 29, 2021 Reasons for Decision released on: April 6, 2021

Counsel: M. Ward, for the Crown A. Karzai, for Mr. Mischuk

LATIMER J.:

[1] This application concerns how the Crown will attend, and its witnesses testify, during this in-person trial. The prosecuting Crown has brought an omnibus application seeking the following:

(1) A ruling permitting the complainant and another civilian witness to testify remotely, pursuant to section 714.1 of the Criminal Code. (2) A ruling permitting her to participate in the proceeding remotely, pursuant to s. 715.25(2) of the Code.

[2] At the close of oral argument, I advised I was satisfied that the Crown had met its onus and the applications were granted. I issued the following orders, with reasons to follow:

(1) The Crown witnesses will testify from a remote, private setting using Zoom. While testifying, they need to remain visible through a stable, traditional camera angle. (2) While I will be sitting in-person, and Mr. Mischuk and Mr. Karzai will be attending court personally, the prosecutor can appear remotely, provided the courtroom has the technological capacity to permit such remote participation. (3) As with all orders of this nature, in the event the outcome does not permit the proper administration of justice, I reserve the right to amend these orders as appropriate.

Analysis

[3] While these two applications flow out of different provisions of the Code, they share many of the same features. The subsections in ss. 714.1 & 715.25(2) are almost identical. [^1] In-person attendance is the orthodox approach for witnesses under s. 714.1 and the presumptive approach for participants under s. 715.22; the applicant bears a burden in both circumstances. [^2]

[4] Both sections set out the test as what is “appropriate having regard to all the circumstances” and provide a non-exhaustive list of necessary considerations. Having received evidence on this application and having heard the submissions of counsel, I consider the following circumstances relevant to my determination:

(1) Unlike many other trials currently ongoing, this is not a remote proceeding. The respondent has not waived his right to be physically present at his trial: see s. 650; R. v. Chizanga, 2020 ONSC 3090, at para. 5. This is an in-person trial where, absent the granting of the instant applications, all relevant participants and witnesses would be expected to attend personally: see s. 715.21; Woods (Re), 2021 ONCA 190, at paras. 57-59, and my comments under footnote 2 above. (2) I take judicial notice of the ongoing Covid-19 pandemic: R. v. Morgan, 2020 ONCA 279, at para. 8. Indeed, as if to underline the ongoing severity of the problem, during the preparation of these Reasons the provincial government announced a “Provincewide Shutdown”, placing greater restrictions on workplaces and businesses across Ontario. While courts are still open, these new restrictions demonstrate the government’s ongoing concern about the transmission of the virus and its variants. I have no difficulty in concluding, as other members of my court and the Superior Court [^3] have done, that the following features of the pandemic are well-known and capable of judicial notice: (a) The transmission of the virus may occur directly or indirectly. (b) People may spread the virus while they are pre-symptomatic or asymptomatic. (c) The virus can be lethal, more so with the recent rise in variants. (d) The rates of mortality appear to be pronounced among the aged as well as those who have certain underlying conditions such as respiratory ailments. (e) Social distancing has been used to lessen the rate of infection in the population. (3) The two principal witnesses for the Crown are M.F. and D.P. Both live in Ontario and have access to Zoom technology. A practice session occurred with VWAP personnel and both had a “good, stable connection”. D.P. is sixty-three years old, and cares for her elderly father. M.F., the complainant, is fifty-two years old and recently advised VWAP that she is suffering from nightmares and “flashbacks” involving the accused, and does not wish to be in the same room as him, as she fears “freezing up”, and not knowing what to say. She indicated that she would have difficulty talking about everything clearly if she were made to testify in-person. Further, her doctor has advised that she suffers from rheumatoid arthritis and is currently unvaccinated. He recommends, from his perspective, that she be permitted to testify remotely. (4) I am satisfied that both M.F. and D.B. have the capacity, as I presently understand the evidence, to testify remotely. I am advised by counsel that credibility will be a key consideration in this trial. I accept this is a significant, but not determinative, consideration on a s. 714.1 application. I note, however, that at present in-person testimony consists of masked individuals testifying through layers of plexiglass. [^4] Over the past twelve months, it is my experience that credibility assessment occurs as easily during remote proceedings as it does in-person with these restrictions in place. (5) The suitability of where the witnesses would testify is an important consideration. I have heard evidence regarding the anticipated nature of the witnesses’ locations. I do not accept that it is strictly necessary for a third party to be present to ensure the witness is abiding by the court’s rules regarding witness testimony. I will set out reasonable conditions at the outset of the witness’s testimony and will monitor compliance throughout the proceeding: R. v. McDougal, 2021 OJ 754 (SCJ), at paras. 12-17. (6) Mr. Mischuk is facing charges of assault causing bodily harm and common assault. Notwithstanding the Crown’s summary election, I accept these are significant charges, particularly the former. While I presently know nothing about the allegations, if Mr. Mischuk is found guilty of either offence a jail sentence is certainly a live possibility. (7) While I have little direct evidence before me regarding the Crown’s personal circumstances, in my view what is “appropriate” for counsel participating in a trial is different than what is “appropriate” for a witness. Counsel present the evidence; they are not the evidence itself. The level of scrutiny is entirely different. So long as the trial can run fairly and efficiently with the prosecuting counsel appearing remotely, I am satisfied that it is appropriate that such appearances occur during the ongoing Covid-19 pandemic: see s. 715.22.

[5] Overall, having balanced all the above considerations, I am of the opinion that it would be appropriate for M.F. and D.B. to testify remotely, and for the Crown prosecutor to appear remotely as well. [^5] Justice is not a place, it is a service. [^6] Those of us who administer it have an obligation to inquire into whether reasonable alternatives to in-person proceedings exist, and if those alternatives amount to fair and efficient access to justice for all participants. We are in the teeth of a pandemic that poses legitimate risks to individuals of M.F. and D.B.’s age. Those risks would also be shared by the prosecutor in this case. I am satisfied that an appropriate alternative exists that would address their concerns, while at the same time providing a fair and just proceeding for all parties.

Disposition

[6] The Crown’s applications under ss. 714.1 and 715.25(2) are granted.

Justice Scott Latimer

Footnotes

[^1]: The only difference being that the potential prejudice flowing from a non-video appearance is not an express consideration under s. 715.25(2). [^2]: Regarding s. 714.1, I have avoided using the word “presumption” as I understand there to be disagreement about whether a persuasive burden exists in s. 714.1: see R. v. S.D.L., 2017 NSCA 58, at paras. 27-32; R. v. Metcalfe, 2018 ONSC 4925, at para. 12. I use the term “orthodox” to mean that that the traditional approach is for witnesses to appear personally. Absent an application to do otherwise, in-person testimony is the norm. At minimum, an applicant bears an evidential burden to demonstrate a workable alternative to in-person attendance. On the facts of this case, however, I do not need to resolve this disagreement, as I am satisfied that the higher S.D.L. standard would have been met, as there are exceptional circumstances – the ongoing pandemic – that alone warrant granting the applications. [^3]: R. v. Cunningham, 2020 ONSC 2724, at para. 18; R. v. Jeffries, 2021 ONCJ 98, at para. 22; R. v. Hewitt (July 27, 2020, Dellandrea J. of the Ontario Court of Justice), at paras. 7-9. [^4]: An issue arose during the Crown’s submissions regarding the frequency with which judges have been permitting individuals to unmask during court proceedings. I have no direct evidence on this point, nor can I speak for other judges, but I did advise the parties that, in all of the in-person proceedings I have conducted since the courts reopened in July 2020, I have made a presumptive order at the outset of each one that everyone in the courtroom will remain masked at all times. In making this order, I advised I would hear requests for exemptions on a case-by-case basis. Requests have not been frequent. In the few circumstances where one was made and an exemption granted (two, to my recollection), the unmasked individual was more than six feet away from all other participants during the trial. It is my intention to make a similar order in this upcoming in-person proceeding. [^5]: At the end of the hearing, it became clear that two police officers would also be necessary witnesses. As their evidence is limited to the taking of a post-arrest statement, I advised that I was satisfied that they could provide their testimony remotely as well. [^6]: I acknowledge here that I am paraphrasing the question often posed by Richard Susskind in his writings on the applicability of technology-assisted justice, “Is court a service or a place?”: see, for example, Richard Susskind, “The Future of Courts”, online (2020) 6:5 The Practice https://thepractice.law.harvard.edu/article/the-future-of-courts/