Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 11 29 COURT FILE No.: North Bay 2511-998-21-51000878-00, 2511-998-21-51001155-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANTHONY GRANTHAM

Before Justice Leonard Kim Heard on October 11, 2023 Oral Ruling released on October 11, 2023 Written Ruling released on November 29, 2023

Counsel: Mr. M. Crystal.................................................................. Counsel for the Applicant Crown Ms. N. Guo...................................................... Counsel for the Respondent, A. Grantham

Ruling on Section 486.2(2) Application

L. Kim J.:

[1] This was an application brought by the Crown seeking an order pursuant to section 486.2(2) of the Criminal Code permitting the complainant, Makenna Desbiens, to testify with the assistance of a testimonial aid, namely CCTV.

[2] Mr. Anthony Grantham is facing a total of 11 criminal charges involving allegations of intimate partner violence that include offences of assault, assault by choking or suffocating or strangling, unlawful confinement, breaches of probation, as well as one count of threatening to kill. The complainant in all 11 of these charges is Makenna Desbiens.

[3] If I grant the Crown’s application, Ms. Desbiens would be permitted to testify from the Victim Witness Assistance Program (hereinafter “VWAP”) facilities located here in the North Bay Courthouse. Consequently, she would not be giving evidence within the same courtroom in which the trial is expected to take place in the presence of the accused.

[4] Both the Crown and the Defence have provided me with a healthy amount of case law directly on point. Without referencing each and every case counsel have relied upon, I can assure you that the Court has reviewed the cases and considered the applicable legal principles for the case at bar.

[5] The Crown reminds the Court that the test to be met is a low one and must be proven on a balance of probabilities. Pursuant to s. 486.2(2), I must be satisfied that permitting Ms. Desbiens to testify by CCTV would facilitate her ability to give a full and candid account of the acts she alleges or would otherwise be in the interests of the proper administration of justice.

[6] In assessing that legal test, I am required to consider the factors noted in section 486.2(3)(a) to (h) of the Criminal Code.

[7] The Crown called the complainant, Ms. Desbiens, to testify on the application. She did so this morning by CCTV from the North Bay VWAP facilities with a worker present, Ms. Rothwell.

[8] In consideration of the applicable factors I must consider in s. 486.2(3), a summary of Ms. Desbiens’ evidence is as follows:

(a) Age – She is currently 24 years old.

(b) Mental or Physical Disabilities – As it relates to her mental health, she receives treatment by seeing a psychiatrist on a monthly basis. She has been diagnosed with borderline personality disorder and PTSD. With respect to the timing of her mental health diagnoses, she expressed that she was diagnosed prior to the incidents in question and again after. She admitted under cross-examination that she has told the Crown on a previous occasion that she is in a better place today because she has completed a significant amount of counselling and has healed since the incidents that have allegedly taken place.

(c) Nature of the Offence – As referenced earlier in my Ruling, Mr. Grantham is facing a total of 11 criminal charges involving allegations of intimate partner violence that include allegations of violence, more specifically, simple assault, assault by choking suffocating or strangling, unlawful confinement, breaches of probation as well as one count of threatening to kill Ms. Desbiens.

(d) The nature of relationship between witness and accused – According to Ms. Desbiens, Mr. Grantham is her former boyfriend, and their relationship began in July 2020 and lasted for approximately 2 years. She described their relationship as toxic, unhealthy, and indicated that she was the victim of physical and verbal abuse.

(e) Whether the witness needs the order for their security or to protect them from intimidation or retaliation –

i) On this factor, the Crown asked Ms. Desbiens if she feels that she could give a full and candid account if she was in the courtroom testifying of the acts complained of in this trial. Ms. Desbiens indicated that she could not. When asked to expand on what her understanding of a full account means, she responded, “to be candid and honest and tell fully what happened”, or words to that effect.

ii) She went on to explain that if she were in the same courtroom as Mr. Grantham, she wouldn't be a 100 percent focused on the questions asked of her based upon the intimidation she experienced in their relationship, and that she would be fearful and intimidated to speak in front of him. She further explained that she doesn't feel that she could personally give a 100 percent if she were in the same room as him and if she were able to see him.

iii) She explained that she would be afraid and intimidated by him and that this fear or intimidation that she feels would make her testimony less complete. In her words, “I would be very cautious of my words because of my fear of him.”

iv) She expressed that although she is aware that Mr. Grantham is currently in custody, that her feelings of fear and intimidation does not change or impact her ability to give a more complete description of the acts she complains of. Ms. Desbiens expressed that although Mr. Grantham is in custody, it doesn't change the trauma experience that she had with him.

[9] She went on to explain that the current logistical arrangement permitting her to testify by CCTV in the VWAP room, permits her to give a full and candid account because she feels comfortable and safe and that her evidence would be different if she were physically in the courtroom with Mr. Grantham.

[10] If she were to testify by CCTV, she would not feel fearful or intimidated and would be able to express everything that took place. The Crown argues that the difference in the quality of the evidence would mean that the court would get 60 precent not 100 percent of the evidence from the complainant. He references the case law underscores and emphasizes that these testimonial aids in section 486.2 of the Criminal Code are intended to enhance the truth-seeking function of the criminal trial process.

[11] Ms. Guo on behalf of Mr. Grantham, vigorously opposes this application to permit Ms. Desbiens to testify by CCTV. She insists that the evidence of Ms. Desbiens’ mental health concerns are simply bare assertions that are unsubstantiated by any medical documentation and that more is required, especially in non-sexual assault cases where there are adult complainants in the context of intimate partner relationships.

[12] Ms. Guo largely relies on the ability of Defence counsel to assess the demeanor of the witness if she were to testify in person versus CCTV. In other words, her ability to assess the demeanor and body language of Ms. Desbiens in person would be much clearer and enhanced with Ms. Desbiens physically in the courtroom as opposed to by CCTV.

[13] Ms. Guo also expressed that the evidence provided by Ms. Desbiens to the police through statements proves that she is more than capable of communicating without breaking down and becoming too emotionally distraught.

[14] I have considered each of the applicable factors listed in section 486.2(3)(a) to (h). Having considered the evidence provided in viva voce form today from Ms. Desbiens, both in her responses to the questions in-chief and under cross-examination, I am persuaded on a balance of probabilities that permitting her to testify by CCTV will permit me to obtain the best evidence available to decide this case in a fair and just manner.

[15] I find that Ms. Desbiens would be intimidated or afraid of the accused to the point where it would negatively impact her ability to provide this Court with more fulsome and honest testimony if she were required to testify in the courtroom with Mr. Grantham present. In other words, I am persuaded that with the assistance of CCTV, Ms. Desbiens’ ability to provide a more full and candid account will be facilitated.

[16] It is clear to me that Ms. Desbiens has and continues to suffer from mental health related struggles that have been formally diagnosed as borderline personality disorder and post-traumatic stress disorder. Section 486.2(3)(b) does not require the Court to find a nexus between the mental disability and the conduct of the accused. What it does require is for this Court to consider this vulnerability factor along with all of the other factors in determining whether or not the legal test has been met for this testimonial aid.

[17] I am also mindful of the nature of the offences alleged, namely, intimate partner violence on multiple occasions. Although Ms. Desbiens has expressed that she is in a good place today as a result of counseling and healing, the Court is mindful of her subjective perception of fear and intimidation that she has expressed if she were to be in the same courtroom of Mr. Grantham.

[18] It is not the Court’s desire to place Ms. Desbiens in a further position of vulnerability or mental health struggles as a result of any trauma that she may experience from testifying in person in this trial. Indeed, it would be in society's best interest to encourage the reporting of offences of an intimate partner violence nature by permitting witnesses who suffer from significant mental health challenges to testify by CCTV.

[19] I also find that Ms. Guo’s ability to observe the full demeanour of Ms. Desbiens on CCTV would not be compromised in any negative way. In other words, Defence counsel's ability to properly represent her client despite the use of CCTV would not interfere with the proper administration of justice.

[20] The Crown's application to permit Ms. Desbiens to testify by CCTV in this trial is granted.

Released Orally: October 11, 2023 Signed: Justice Leonard Kim