Court File and Parties

DATE: August 24, 2021 COURT FILE NO.: 1111-998-19-0130 1111-998-19-0104 ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Applicant

— AND —

J. R. T. Respondent

Before Justice K.A. Baker

Application Heard: August 19, 2021 Judgment released on: August 24, 2021

Counsel: G. Settimi, for the Crown S. Swarts, for the Defendant

Endorsement

BAKER, J.:

[1] This is an Application by the Crown pursuant to section 714.1 of the Criminal Code , seeking an order permitting the complainant, N.C. to give her evidence by videoconference. The Crown proposes that the complainant be permitted to give her evidence from her home, or in the alternative from one of the following locations: a) a police station, b) a VWAP office, c) a local Crown attorney’s office.

[2] Section 714.1 provides that a court may order that a witness in Canada give evidence by audio or videoconference if the court is of the opinion that it would be appropriate having regard to all of 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.

[3] The ongoing public health emergency of COVID-19 has forced courts to adapt and to innovate to ensure the effective administration of justice. Remote hearings have become commonplace over the seventeen months since the pandemic of COVID-19 was declared. Indeed, at times, remote hearings were the only hearings permitted. This has allowed individuals to access justice in a safe manner.

[4] Evidentiary and procedural rules are not set in stone. They can and must evolve over time. The public health emergency has forced the evolution of the processes associated with the administration of justice.

[5] I will deal with each of the relevant circumstances in turn:

(a) The location and personal circumstances of the witness.

[6] The jurisprudence establishes that the personal circumstances of the witness need not be “such as to make the video evidence the only method by which their evidence can be secured”. All that is required is a good reason.

[7] The complainant resides on the east coast of Canada. She has a small child under five years of age. If the complainant is obliged to attend personally for trial, she will have to place her daughter in the temporary care of her parents for the duration of the travel and trial time.

[8] At the time the application was drafted, there was the additional concern that the complainant would be subject to a quarantine period of fourteen days on each leg of her journey. The Crown concedes that the quarantine is not applicable, as of this time.

[9] The complainant has indicated that car transportation would not be viable because of the length of the trip and safety concerns. She accordingly would wish to fly. This would require what is described as a “lengthy flight” from the east coast to Pearson International Airport in Toronto, and then taxi transportation to Haldimand County. Hotel stays would be required. The complainant has expressed concern that she would be in a confined area for an extended period of time within the airplane, the taxi and at the airport.

[10] As of the date of this hearing, the government of Ontario website contained the following advice:

• Stay home
• do not use public transportation, taxis or rideshares
• do not go to work, school or other public places
• your health care provider will tell you when it is safe to leave

[11] The Public Health agency of Canada, in a statement released August 12, 2021, included the following observation: “The latest national surveillance data indicate that a fourth wave is underway in Canada and that cases are plotting along a strong resurgence trajectory.”

[12] It is certainly accurate, as the Respondent notes, that the government has spent millions of dollars ensuring the safety of individual courthouse and courtrooms. The Ontario Court of Justice is indeed permitting in person hearings on the basis that these premises are safe. But the issue in this case is not the relative safety of the courthouse. It’s the increased risk in travelling by air, waiting in an airport, being in a taxi and staying in a hotel.

[13] As the mother of a young child, the complainant would not only have to bear that risk for herself, she would also impose it on her young child.

[14] The public health emergency is ongoing and volatile. The authorities have made it clear we are in the midst of a fourth wave. Variants of the virus are further complicating the matter. Public health authorities have urged vigilance and caution.

[15] The travel required for the complainant to give in person testimony is not merely an inconvenience. This once in a century pandemic and resulting public health emergency is an exceptional circumstance as described by the Nova Scotia Court of Appeal in R. v. S.D.L., 2017 NSCA 70.

(b) The costs if the witness were required to attend personally.

[16] The Merriam-Webster dictionary defines “costs” as follows:

a. the amount or equivalent paid or charged for something. b : the outlay or expenditure (as of effort or sacrifice) made to achieve an object. c : loss or penalty incurred especially in gaining something.

[17] It may be that the Crown has not demonstrated that the complainant would be subject to uncompensated costs were she to be required to attend in person. (It is of course not unreasonable however to infer that there would be incidental costs associated with this kind of trip that would not be subject to full compensation.)

[18] But it seems to me that the concept of “cost” can capture more than financial outlay. The complainant is a single mother and primary caregiver to her young daughter. The daughter has apparently not spent much time outside of her mother’s care. She is said to have, “ongoing issues” when she is separated from her mother for any length of time.

[19] An in-person court appearance would require the complainant to be away from her daughter for at least four days, as this is a two day trial and it would require a full day of travel each way. This of course assumes that the trial dates are sequential. The matter has not yet been scheduled. If the dates are not sequential, then it would require two separate trips for a total of six days when the child would be separated from her mother. This is a very significant “cost” that should be included in the assessment.

[20] This is aside from the “cost” of the anxiety imposed on the complainant that she will become exposed to an extremely virulent virus that could incapacitate her and infect her child.

(c) The nature of the witness’ evidence.

[21] J.R.T. is accused of sexual assault and assault. The complainant is obviously a crucial witness. Credibility will no doubt be a critical issue. The Respondent says that an in-person hearing will be essential to a proper assessment of her evidence. I am not persuaded this is the case for two reasons.

[22] One, video technology has improved to the point that it may well offer a superior video of the witness to what is possible in courtrooms retrofitted for the public health emergency. As noted in R. v. Lucas-Johnson, 2018 ONSC 2370, the current video technology is sufficiently sophisticated as to capture a variety of non-verbal cues and expressions. As observed in R. v. Mattu, 2019 ONCJ 517, video testimony may be superior insofar as the camera angles, close up views and full face on views allow for a closer depiction of the witness than the side profile presented to the trier of fact in the courtroom.

[23] The second point relates to the assessment of demeanour. The jurisprudence is replete with warnings that triers of fact should be cautious with respect to assessing demeanour. Many of the “common sense” inferences about demeanour prove, on closer scrutiny, to be based on stereotype and generalization. Determinations of credibility frequently rely much more on the account being provided by the witness than the witness’ demeanour while giving it.

[24] I therefore concur with the Rahman, J’s assessment in R. v. Mattu, 2019 ONCJ 517 wherein he stated:

“Modern video technology should allay any concern that a witness’ virtual presence is that much different from a witness’ actual presence. Neither the court’s ability to assess the witness’ evidence, nor counsel’s ability to cross-examine the witness will be hampered by the witness not being physically present.”

(d) The suitability of the location where the witness will give evidence.

[25] The Respondent raises legitimate concerns about the complainant providing her evidence from her home. It is easier to ensure that the witness is in a place with equivalent protections and solemnity to a courtroom if that location is not their personal residence.

[26] The past 17 months of experience with remote hearings has certainly been revealing in terms of the numerous and often unexpected interruptions that can arise when individuals are participating in a hearing from home.

[27] Further it is easier to ensure that the usual protocols are being observed if the evidence is being provided in some kind of “official” location such as a courthouse, VWAP office or the Crown attorney’s office. Other individuals can be engaged to confirm the absence of notes or devices that might convey messages to the witness during their testimony.

[28] I agree with MacDonald, C.J.N.S. in R. v. S.D.L., 2017 NSCA 70 that the preference should be for a courtroom, to emphasize judicial independence and further the appearance of impartiality. I am however mindful that courthouse technical capacities vary across the country and indeed from individual jurisdiction to jurisdiction. Logistical factors may require some flexibility particularly when dealing with a witness outside of this jurisdiction.

(e) the accused’s right to a fair and public hearing

[29] This trial is apparently intended to proceed on an in-person basis. Members of the public will be able to attend. If the order is granted, the trial would proceed in a hybrid fashion such that the witness would appear on a videoscreen in an in-person courtroom. It is a public court. Members of the public are free to attend. There is no concern that the order would deprive the accused of a public trial.

[30] Given my previous comments with respect to the technology, I am satisfied that the taking of the complainant’s evidence by videoconference would not impact the accused’s right to a fair hearing. The courts have permitted very serious matters to proceed using remote evidence.

(f) The nature and seriousness of the offence.

[31] The offences before the court for trial are indeed very serious. But again, very serious matters have proceeded with the taking of remote evidence.

[32] The comments of Allen, J in R. v. Lucas-Johnson, 2018 ONSC 2370 supra, are very apt here:

“Although video link attendance by a witness should not be the rule, facing one’s accuser does not necessitate confronting the accuser in the flesh as long as the accused can know the case against him; as long as he is present in court and can see and hear the evidence of his accuser. This can be accomplished by video link.”

Indeed, since the commencement of the public health emergency this can and has occurred in Ontario courts on a very regular basis.

[33] Audioconferencing is not being considered in this application and accordingly, factor 714.1 (g) does not apply.

[34] Having considered the evidence put before me on this motion and the applicable law, I find that an order under s. 714.1 would not have any impact on the Respondent’s right to make full answer and defense. I therefore conclude that it is appropriate to make the requested order.

[35] The usual arrangements should be ensured – that is, an individual in an official capacity who is able to address any technology concerns and is present in the immediate vicinity of the location. That person should also be available at the commencement of the hearing and as needed to ensure that no one else is able to enter the private location during the giving of testimony and to confirm that the witness does not have any notes or devices before her except as authorized by the presiding justice.

[36] Accordingly, order to go-

1. The witness N.C. shall be permitted to testify by video conference from any one of the following locations, with a preference for the first indicated location: a) A courthouse local to her residence, b) A local VWAP office, c) A local Crown attorney’s office d) A local police station.

Justice K. A. Baker