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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. D.N., 2023 ONCJ 60

DATE: 2023 02 01

COURT FILE No.: Windsor 20-2004

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.N.

Before Justice S. G. Pratt

Heard on 12, 13 December 2022

Ruling released on 1 February 2023

Siobhan Dundon................................................................................ Counsel for the Crown

Jessica Grbevski........................................................................ Counsel for the Defendant

RULING ON MEANS OF TESTIMONY

Pratt J.:

[1] D.N. is charged with two counts of sexual assault against L.G.M. Trial is set for the 6, 8, 9, and 10 of March 2023. The Crown has brought an application to allow Ms. G.M., hereinafter the Complainant, to testify using a combination of an iPad application and typed responses. Counsel for the Defendant D.N. does not strongly oppose the use of the technology but does question how it will function in practice and how it may impact his right to a fair trial. These reasons explain why the Crown’s application will be allowed, subject to the issue being revisited during the trial if necessary.

Background

[2] The Complainant suffered a stroke when she was fifteen years old. She is unable to speak. To communicate, she uses an iPad application that allows her to select from many different recorded responses. The Crown filed screenshots of the application that show dozens of different categories such as “Transportation”, “Entertainment”, and “Feelings”. There are many specific responses within the categories, like “I’m frustrated” and “Need Help”. The Complainant simply needs to tap on the appropriate square on the screen and the application says the words aloud. When the Complainant testified, the iPad was connected to the courtroom audio system and the vocal responses were clearly audible.

[3] In addition, the Complainant can also communicate with a computer keyboard by typing out her answers. At the hearing of the application, she had a keyboard that was connected to a large screen on the wall. All in the courtroom were able to read her responses easily. Counsel read out what was typed so that it would form part of the court record.

The Law

[4] Section 6(1) of the Canada Evidence Act states the following:

6 (1) If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

[5] Section 6(3) elaborates on how a court makes such an order:

(3) The court may conduct an inquiry to determine if the means by which a witness may be permitted to give evidence under subsection (1) or (2) is necessary and reliable.

[6] Such a hearing was held in this case. The Complainant testified using both the iPad and a keyboard.

The Application

[7] The Complainant was asked several questions unrelated to the allegations against the Defendant. Her responses, some from the iPad and some from the keyboard, were generally responsive. Some were not. For example, when asked how she was feeling, she used the iPad to say “happy”. When then asked what she had for breakfast that morning, she again replied “happy”. The Crown followed up with clarifying questions and the Complainant turned to the keyboard for her answers. It was eventually learned that she did not have breakfast that morning. I asked the Complainant questions myself, and she provided appropriate answers to queries about how she traveled to court that morning and what she did the previous weekend.

[8] Without the technology, the Complainant was limited to nodding her head in agreement or disagreement. As I indicated, she is unable to speak. I have no difficulty finding that the technology proposed is necessary for her to provide her evidence.

[9] The issue of reliability is somewhat more complex. While the Complainant can answer simple questions with short answers, there is in my view a concern about just how reliable the answers will be in terms of them accurately reflecting what the Complainant means to say. This is a bigger problem with the stock answers on the iPad than it is with her own answers typed on the keyboard.

[10] I asked counsel how the Complainant would be able to provide her narrative of events. There does not appear to be a simple answer to this question. Instead, the process of examination will have to move slowly and methodically, with clarifying questions to be expected throughout. With the use of short questions and clarification when needed, I am hopeful the Complainant will be able to communicate her evidence clearly and completely.

[11] Without question this process will add significant time to the trial. That is not a concern on this application. Members of the public must be able to come to court to have their voices heard. The manner in which those voices are heard is immaterial. Courts have an obligation to accommodate all persons, regardless of their limitations, to ensure they are full participants in their justice system. We will take whatever time is required for this matter to be heard fairly and completely.

[12] I am guided in this case by my sister Justice LeRoy’s decision in R. v. Guest (unreported, 5 December 2019). There, Her Honour ruled on the use of a communication intermediary for the same Complainant now before me. While the Crown in the present case is not seeking to use an intermediary, that Court’s endorsement of the proposed intermediary’s suggestions for testimony is helpful. These suggestions are:

(1) Keep word choice short and to the point;

(2) Keep complex sentence structures to a minimum;

(3) Use everyday language;

(4) When asking a yes/no question, begin by stating a yes or no answer is required;

(5) Provide sufficient time for the Complainant to communicate her answer;

(6) Ask for further information if the complainant provides a one-word answer;

(7) Verbally direct the Complainant to stay on topic and redirect her back to task;

(8) Use a visual display of the topic/subject of the question whenever possible.

[13] Not all of these suggestions may be required, but on balance I believe these are good recommendations that will assist the witness in testifying and assist me in receiving her evidence.

[14] The application to allow the Complainant to use both the iPad and the keyboard to provide her evidence is granted. We will begin the Complainant’s evidence in this manner. If necessary, my ruling can be revisited on the motion of either counsel, or the Court’s own motion, should the procedure turn out to be unworkable in practice or require further adaptation. I encourage all of us to remember that a trial is a search for the truth, not a race to the truth. This case will move slowly. There’s nothing wrong with that.

[15] If the Complainant answers through the iPad, the response will be audible and will form part of the court record. If she chooses to type her response, I will direct questioning counsel to read that response aloud. The Complainant will begin a new line for each response. At the lunch recess and at the end of each day, the document the Complainant will have created will be printed out and made an exhibit. She will then begin a new document.

[16] I am grateful to counsel for being open to alternative technology that allows the witness to have her voice heard in this proceeding.

Released: 1 February 2023

Signed: Justice S. G. Pratt