Publication Ban Warning

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 07 10 COURT FILE: Toronto 22-99870000224

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.Q.

Ruling

Application for a Testimonial Aid – Support Dog

Before: Justice B. Jones Heard on: July 7, 2023 Written Ruling Provided on: July 10, 2023

Counsel: A. Nagra................................................................................................ counsel for the Crown V. Mistry..................................................................................................... counsel for Mr. S.Q.

Jones J.:

Introduction

[1] S.Q. is charged with one count of sexual assault on E.A.

[2] The Crown has applied to have Ms. A. testify in court with the aid of a support dog. The dog is a trained support dog, who comes with a handler, provided by the Victim Witness Assistant Program. Ms. Mistry does not oppose the application.

[3] For the following reasons I find there is jurisdiction to make the order and it is appropriate to do so.

Benefits of a Support Dog

[4] A complainant in a sexual assault case may experience further trauma through testifying. They may be understandably reluctant to discuss, in open court, and before strangers, sexual abuse. They may inevitably feel guilt or shame, or simply be riddled with anxiety. The nature of the process itself may affect their ability to provide detailed and accurate testimony: see, for example, R. v. Lennox, 2019 ONSC 5703, at para. 38.

[5] In R. v. R.V., 2019 SCC 41, the Supreme Court of Canada observed that “[t]estifying in a sexual assault case can be traumatizing and harmful to complainants”: see para. 33.

[6] The use of a support dog may help a witness overcome their fear or apprehension about testifying. While no evidence was filed on this application about the value of support dogs as a testimonial aid in court, I take judicial notice that they may be extremely comforting to some witnesses. Support dogs have been used in criminal courts across Canada. In R. v. Roper, 2015 BCSC 2107, Justice Maisonville of the British Columbia Supreme Court reviewed academic literature on the topic and noted the following at para. 4:

“Many studies have since assessed the general psychological and physiological effect of animals on humans. For instance, evidence suggests that the presence of animals helps to relieve symptoms of stress and anxiety by lowering and sustaining a person’s heart rate, blood pressure, breathing and dissociation.”

Jurisdiction

[7] There is no specific provision in the Criminal Code to permit an application for a dog to support a witness during testimony. Yet there is no section prohibiting it either.

[8] Section 486.1 of the Criminal Code authorizes a judge to “order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.”

[9] In R. v C. W., 2016 ONCJ 649, the Crown applied for a dog to accompany a witness, but not the dog’s handler. The court held that in these circumstances, section 486.1 did not apply as the section was restricted to “persons”: see paras. 4-5. I agree with this interpretation.

[10] Several courts have also concluded that notwithstanding this section of the Criminal Code, the court’s ability to control its own process may permit the use of a support dog. For example, in Roper, supra, at para. 7:

I note that here the animal is a pet and not a service animal. It has no special training. However, he obediently follows his owner’s commands and will not be obtrusive, despite a lack of formal training. I appreciate that the judge has discretion to manage the conduct of matters in the courtroom. I am allowing the application and exercising my discretion to permit the complainant to have her pet lapdog with her while testifying. I understand the animal will ease her anxiety and assist with her testimony. In the words of s. 486.1 of the Criminal Code, the dog will assist in obtaining a “full and candid account from the witness of the acts complained of.”

[11] Justice Maisonville cited her discretion to make the order as part of a court’s ability to “manage the conduct of affairs in the courtroom”: see para. 8. While such an exercise of the court’s discretion may be unusual, and not appropriate in every case, it was appropriate to make the order in that particular case, which involved unlawful confinement allegations.

[12] In R. v. Samaniego, 2022 SCC 9, the Supreme Court of Canada took an expansive view of the court’s ability to control its own process: see paras. 124-131. A court may manage “how parties present their case, not the evidence they can tender to build their case”: see para. 130. The use of a support dog is simply an aid to assist the Crown’s witness to testify accurately and therefore normally affects only how the case for the Crown will be presented.

[13] I note as well that section 13 of Victim’s Bill of Rights Act, S.C. 2015, c. 13, s. 2, states that:

Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the offence

[14] Justice Band cited this section as authority for his decision to allow a complainant in a historical sexual assault case to testify with the assistance of a support dog notwithstanding the inapplicability of section 486.1 of the Criminal Code: see C.W. at para. 7. Justice Band considered the nature of the allegations, that the dog would sit quietly in the courtroom, and that the complainant’s anxiety about testifying would be relieved, somewhat, by the presence of the dog.

[15] In a brief oral ruling, Justice Nakatsuru of the Ontario Superior Court of Justice also held that he had jurisdiction to permit the use of a support dog to assist a witness when testifying with the use of CCTV technology: see R. v. Pine, 2018 CarswellOnt 23459.

[16] I conclude that based on my authority to control this court’s process, in conjunction with the rights afforded to victims under section 13 of the Victim’s Bill of Rights Act, an order permitting a witness to testify with a support dog is permissible. Such an order will be an exercise of the court’s discretion.

Conclusion

[17] Courts should not take a rigid and formalistic view of the testimonial aid provisions of the Criminal Code or Victim’s Bill of Rights Act. Rather, the spirit of these provisions – to provide meaningful assistance to witnesses with testifying about difficult and often traumatic events – should animate decisions about how they are interpreted and implemented.

[18] Testifying in a courtroom about intimate moments of one’s life is an artificial and emotionally difficult experience. Reasonable accommodations should be undertaken wherever possible by courts to assist with easing witnesses’ anxiety. This, in turn, will ensure that they are able to provide a full and candid account of their testimony which is in the best interests of the administration of justice.

[19] If defence counsel has specific concerns that the use of any testimonial aid might unduly influence the witness’ testimony or cause prejudice to the fair trial interests of the accused, counsel must bring that to the presiding judge’s attention. Ms. Mistry does not raise any concerns in this case.

[20] The application is granted.

Released: July 10, 2023 Signed: Justice B. Jones