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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 02 26 COURT FILE No.: Brampton 3111 998 22 2475

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RANJIT SINGH

Before: Justice G.P. Renwick

Heard on: 26 February 2024 Reasons for Judgment released on: 26 February 2024

Counsel: R. Moir, counsel for the Crown R. Sidhu, counsel for the Defendant Ranjit Singh

Application for Video Link Evidence

Reasons for Decision

RENWICK J.:

Introduction

[1] The Respondent is charged with eight counts:

i. Assault x5; ii. Unlawful confinement; and iii. Sexual assault x2.

The prosecution has proceeded by Indictment. The trial will be in the provincial court.

[2] The prosecutor applies under ss. 714.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“Criminal Code”) for an order permitting the complainant to testify from her home province of New Brunswick. Alternatively, or in addition, the prosecution also seeks the complainant to be permitted to testify by video as a testimonial aid, pursuant to s. 486.2(2) of the Code.

[3] The Respondent opposes the Application primarily on the basis that there is an unfairness in permitting the prosecution’s main witness to testify from her home jurisdiction while requiring the Defendant to appear in court in person. As well, the Respondent also opposes the Application on the basis of a lack of evidence that there is any real need or that there would be any inconvenience to the prosecution’s witness to travel to Brampton, Ontario for this trial.

[4] This Application has been brought on short notice, following the dismissal of the Defendant’s Application for a stay pursuant to s. 11(b) and 24(1) of the Charter of Rights and Freedoms.

[5] The Respondent takes issue with the affidavit evidence presented with respect to frailties of the witness, the costs to bring her back to Ontario, and the inconvenience to the complainant. The approximate costs to bring the complainant from New Brunswick (including flight, hotel, and meals) was estimated at $1400-1600. The Defendant suggests that the actual flight is only two hours in duration.

[6] For the reasons that follow, I am dismissing the Application under s. 714.1.

Analysis

[7] Section 714.1 of the Code permits a court to use video link technology to receive the testimony of witnesses from any other Canadian jurisdiction.

[8] The decimal subsections of 714 of the Criminal Code provide for alternative technological mechanisms for the reception of testimony given by witnesses who testify outside of the courtroom. Section 714.1 may be used to accommodate defence or prosecution witnesses where “it would be appropriate in all the circumstances, including:

a) the location and personal circumstances of the witness; b) the costs that would be incurred if the witness had to be physically present; and c) the nature of the witness’ anticipated evidence.”

[9] The Defendant opposes the Application primarily on the basis that it would be unfair to require the Respondent to attend his trial in person, the solemnity of the proceedings would be diminished, and there will be a disproportionate effect upon the Respondent’s defence to hear from and cross-examine the complainant, by video link.

[10] Secondarily, the Respondent submits that there is an insufficiency of evidence with respect to the inconvenience to the complainant and her medical or psychological issues. Concerns were also expressed about the venue from which the complainant will testify. Lastly, it was suggested that if the cross-examination of the witness requires that her statement be put to her during cross-examination, the reception of the evidence will be hindered because of the limitations of using video technology.

[11] I agree that practical logistics are very real concerns that ought to be addressed in this type of Application. However, it is far from clear how the practical concerns could not be addressed in the instant case. I agree with the prosecutor that the witness can move her camera to demonstrate the space where she will give her evidence. She can be cross-examined on the presence of others or the use of materials while testifying. In my view, the recent global pandemic and the use of this technology established that these mechanisms can provide a useful substitute to in-person, in-court testimony.

[12] While there are several cases that discuss similar applications, I have not been provided with any binding authority, nor have I found any cases that direct how I must exercise my discretion in the determination of this Application.

[13] I also agree with the Respondent that there may be a distinction between witnesses depending on their role, the issues at play, and the significance of the evidence to advance the case of the party seeking to rely upon the provision. The complainant is the main, if not the sole witness, to testify for the prosecution. Her credibility and reliability will be squarely in issue.

[14] I am being asked to infer witness cost, inconvenience, and discomfort on the basis of hearsay evidence.

[15] Madame Justice Sheard considered a similar application made during a jury trial in Ottawa a few years ago: see R. v. Belem, 2017 ONSC 2213, [2017] O.J. No. 1882 (S.C.J.). In that case, the prosecution called two witnesses (one of which was a psychiatrist) to testify about the cost, inconvenience, and medical condition of the witness upon whose behalf the application was brought. The evidence revealed that the witness had fears for his physical safety, there were concerns for his mental well-being and physical condition, and there was evidence adduced respecting the costs of travel and accommodations to bring the witness from British Columbia to Ontario. In that case the court also considered the defence concession to permit the witness to testify outside the courtroom using closed-circuit television, if counsel could be in the same room with the witness.

[16] Madame Justice Sheard considered similar applications in R. v. Leblanc, 2014 NSPC 116, 361 N.S.R. (2d) 1, and R. v. Young, 2000 SKQB 419, 201 Sask.R. 158 and referred to eight factors identified by the court in Young, in addition to the statutory factors found in s. 714.1. Although Belem is not binding, I find the analysis helpful.

[17] As did the court in Belem, I will consider the eight factors suggested by Mr. Justice Wright in Young. They are:

(1) Will a video appearance by the witness impede or impact negatively on the ability of counsel to cross-examine the witness? (2) The nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel. For example, police and technical witnesses who testify to routine matters with respect to exhibits and other matters that would not attract any particular objection on the part of the accused's counsel; (3) The integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom; (4) The distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance; (5) The convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, or personal life; (6) The ability of the witness to attend from an area that makes it difficult for travel or travel in a reliable fashion; (7) The cost of having the witness attend in person; and (8) If the witness is beyond the control of the court in the trial jurisdiction, and whatever extraterritorial powers a judge may have over the person. [1]

[18] The first two factors relate to the cross-examination of the witness and the potential hurdles for cross-examination if the Application is granted. As anyone who has ever attended a meeting by video conferencing is aware, the better the technology, the better the experience. In this case, the prosecution seeks the remote appearance for its main witness. That said, I am not satisfied that cross-examination is hindered if the witness is cross-examined remotely.

[19] Counsel for the Respondent did not suggest any inherent anticipated difficulties in cross-examination of the witnesses by the use of video technology, but given the import of the testimony, the cross-examination of the complainant is likely more critical to the defence of the allegation than the cross-examination of any secondary witnesses. If there is any delay in the video technology that could affect the cross-examination, this may compromise a critical component of the Respondent’s defence. Without precise information to satisfy the court that the technology will not negatively affect the cross-examination of the complainant, at least with respect to her testimony, this factor favour denying the Application.

[20] The third factor favours the use of the technology. The complainant can be asked about her location and the presence of others or outside influences or materials. I am satisfied that the integrity of the process will be maintained.

[21] The fourth and fifth factors concern witness inconvenience. I have been given no evidence or information to determine what, if any, impact the refusal of the Application would have upon the witness. That said, it is obvious that there would be some disruption to her life to travel to and from Ontario to testify here. This may require that the witness spends at least three days away from home and her usual routine (assuming she travels on the day(s) she testifies). Again, I have no information what, if any, impact this may have upon the family of the witness (are there vulnerable dependants that could be affected) or her occupation. These are not insignificant considerations; they militate toward granting the Application.

[22] The sixth factor plays no role in this case.

[23] The costs to the state are not insignificant, but given the serious nature of the allegation, the costs do not seem prohibitive or incommensurate. Without any information that the prosecution’s budget for these types of expenses is (or, is about to be) exhausted, this factor is neutral.

[24] Given the provisions of ss. 702 and 703 of the Code for the issuance of subpoenas and warrants for those evading service, and the lack of any evidence to suggest that the witness would not attend this jurisdiction if subpoenaed, the eighth factor would seem to be neutral.

[25] In this case, simply applying the eight factors suggested by other courts yields an indeterminate result. If the video technology is of high quality and there are no technical issues that might impede defence cross-examination, the use of this technology should have no effect upon either side’s presentation or defence of their case.

[26] This Application not only implicates trial fairness (will cross-examination of the primary prosecution witness be affected by the use of technology), but also the appearance of fairness. I find that this submission tips the balance in the Respondent’s opposition to the Application, slightly.

[27] Given that there are some questions that remain concerning the medical and psychological state of the complainant and the lack of an evidentiary basis to conclude that it would be inappropriately inconvenient to require the complainant to testify in person, I am not prepared to grant either Application at this time.

[28] I will leave to another day whether the s. 486.2 Application ought to be considered on the day of trial.

Conclusion

[29] Section 714.1 of the Criminal Code is a valuable mechanism to reduce the expenses associated with bringing out of town witnesses to testify in person, where technology exists to accommodate the virtual appearance of the witness during a trial. The section requires a balancing of factors to reduce cost and witness inconvenience in appropriate cases. The section is not mandatory, nor applicable merely because it exists. That said, it is not a high threshold to establish the utility and applicability of the section in appropriate cases.

[30] In consideration of the statutory factors and all of the other considerations referred to above, the Application to lead the anticipated testimony of the complainant by video technology is dismissed.

Released: 26 February 2024 Justice G. Paul Renwick

[1] R. v. Young, 2000 SKQB 419, [2000] S.J. No. 590 (Q.B.), at para. 8.