ONTARIO COURT OF JUSTICE
DATE: 2025-04-04
COURT FILE No.: 23-48118181
Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Joseph M. HERRINGTON
Before Justice Cidalia C. G. Faria
Heard on November 25, 2024
Oral Ruling November 25, 2024
Reasons for Ruling on s. 486.2(2) Screen Application released April 4, 2025
Ellen An ................................................................................................. counsel for the Crown
Marcus Bornfreund .................... counsel for the defendant Joseph M. HERRINGTON
Faria J.:
I. Introduction
[1] Joseph Herrington is charged with one count of assault allegedly committed against his intimate partner, Janice Wu, on September 24, 2023.
[2] The Crown made an application, pursuant to s. 486.2(2) of the Criminal Code, that Ms. Wu testify behind a screen. The Crown filed the affidavit of Sergeant Emanuel Gialousis of the Toronto Police Service in support of the application. The defendant opposed the application.
[3] On November 25, 2024, the first day of trial, I heard Sgt Gialousis’ evidence, and submissions. I granted the application on the same day with reasons to follow. These are my reasons.
II. Evidence
[4] Sgt. Gialousis deposed he was a Detective when he investigated this matter. The complainant, Ms. Wu was the defendant’s common law partner for over 10 years at the time and they have three children together. Therefore, he characterized the alleged assault as intimate partner violence.
[5] Sgt. Gialousis deposed he attended a virtual meeting with the complainant, the prosecutor, and a worker from the Victim Witness Assistance Program (VWAP) on October 30, 2024.
[6] During this meeting, he deposed that Ms. Wu expressed that she “would feel more comfortable testifying from behind a screen or from another room by CCTV.” Ms. Wu explained that she would “become emotional and not be able to testify appropriately if she faces Mr. Herrington in open court.”
[7] During his testimony, Sgt. Gialousis elaborated that Ms. Wu talked about being triggered if she saw Mr. Herrington directly, where she would experience pain and discomfort, become emotional. While Sgt. Gialousis did not include this in his affidavit, Ms. Wu also said that she would be “sympathetic” to Mr. Herrington. He was aware of other circumstances that contributed to her mind set on this issue. He testified he believed the parties were living apart, the parties have “emotional baggage,” and Ms. Wu is “fearful to a certain extent.”
[8] In cross-examination, Sgt. Gialousis conceded that he had not asked Ms. Wu exactly how long the parties had been together, as he learned that from elsewhere. He also agreed that he was not aware Mr. Herrington’s release had been varied to permit contact between the parties for the purpose of Mr. Herrington’s access to the children.
III. Position of the Parties
[9] The Crown submitted that Ms. Wu’s ability to testify without a screen, or in the alternative, via CCTV, will be compromised as she advised Sgt. Gialousis she would become emotional, and even sympathetic to Mr. Herrington, if in his face to face presence. The Crown emphasized the truth-seeking function of the court, the interests of justice, and caselaw she relied on in her factum.
[10] Mr. Bornfreund, counsel for Mr. Herrington, submitted that a screen was not warranted as this is a “single” count of assault, there were no injuries alleged, a relationship has continued between the parties, they have seen each other face to face, and there is no ground for concern of intimidation, retaliation, or fear.
IV. Legal Principles
[11] Section 486.2(2) reads:
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation.
(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.
[12] The onus is on the Applicant Crown on a balance of probabilities.
[13] Four additional general principles also apply. Firstly, an order made pursuant to s. 486.2 does not inherently compromise an accused’s right to a fair trial, the ability to make full answer and defence, or fundamental justice; R. v. Levogiannis, [1993] 4 S.C.R. 475 at paras. 17, and 31-34.
[14] Secondly, direct evidence from the relevant witness is not necessary, and an affidavit provided by a police officer may be sufficient to demonstrate that the requested order should be granted, for example, R. v. Turnbull, 2017 ONCJ 309 at paras. 5-6.
[15] Thirdly, s. 486.2(2) previously required that such an order be “necessary to obtain a full and candid account from the witness of the acts complained of”, [emphasis added], whereas the amended provisions have lowered that threshold to a less stringent test. In particular:
a) the amended provisions now permit these orders to be made if a judge is of the opinion that the order “would facilitate the giving of a full and candid account by the witness of the acts complained”, [emphasis added], with “facilitate” plainly meaning “to make easy or easier”, “less difficult”, or “more easily achieved.”
b) the amended provisions introduced a new, separate and alternative basis for granting the order, whereby a judge may grant such relief if they are of the opinion that the requested order “would otherwise be in the interest of the proper administration of justice”;
c) by lowering the statutory requirements for granting these orders to Parliament indicated its intention to implement a considerable shift in the legal landscape in relation to such matters, and make testifying by CCTV or behind a screen a more commonplace occurrence; and
d) to obtain an order requested pursuant to s. 486.2(2) the Crown accordingly need only demonstrate satisfaction of either branch of the new 486.2(2) threshold, on a balance of probabilities.
[16] Finally, the Supreme Court of Canada has recognized and emphasized the courts are to remove barriers to the truth-seeking process and to promote the truth-seeking goal. In pursuit of these goals, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth, R. v. Levogiannis, [1993] 4 S.C.R. 475 at paras. 23 and 33.
V. Analysis
[17] Of the seven named factors to consider when determining whether a s. 486.2(2) order should issue, five apply to the case at bar, namely s. 486.2(3) (c), (d), (e), (g) and (h).
[18] The nature of the offence, assault, is one of violence. Unlike property, drug or fraud offences, for instance, the alleged offence by its nature involves alleged physical, non-consensual, contact between the parties, and personal and physical violation. The Defence submission that this is “just one count of assault” with “no alleged injuries” is not helpful. There need not be more than one allegation, or that there be injuries for an assault to be serious, particularly in the context of an intimate relationship, which is the next consideration.
[19] The parties were involved in a long-standing intimate relationship. Whether it was the “over 10 years” as Sgt. Gialousis thought it to be, or the 17 years Counsel submitted was the duration of the relationship, there is no dispute Ms. Wu and Mr. Herrington have co-parented three mutual children in an intimate partner domestic relationship for over a decade. An allegation of assault within this domestic context, is one of intimate partner violence. It attracts the statutorily recognized vulnerability of a complainant, and the breach of trust such alleged violence violates.
[20] Ms. Wu specifically expressed the threat to her sense of security to Sgt. Gialousis. She told him that she would become emotional and uncomfortable in the presence of Mr. Herrington, and unable to testify in a way that permits her to speak directly and truthfully. Discomfort is a reality for many, if not most civilian witnesses, who are unfamiliar or inexperienced with the courtroom process. Emotionality is also a reality. These factors, neither alone, nor together, are necessarily sufficient to warrant a testimonial aid. However, when emotion and discomfort are elevated to the point that a witness identifies, articulates, and communicates that these emotions and discomfort will impede her ability to testify, then these feelings have reached a level that negatively impacts a witness’ sense of personal security and ability to testify. This is a barrier to the truth-seeking function of a trial.
[21] Counsel submits that the complainant has seen the defendant face to face pursuant to a bail variation, for the purpose of access to the children and is thus able to tolerate being in Mr. Herrington’s presence. However, this submission is not of assistance. Those interactions are of a limited nature, unlike the nature, duration, or purpose of testifying in a courtroom, where Ms. Wu would be seeing Mr. Herrington watch and focus on her testifying for several hours. Ms. Wu should not be intimidated or afraid, to have her sense of security sufficiently compromised, in a way that negatively impacts her ability to testify – which is what she informed the officer will occur if she must testify without a screen.
[22] Intimate partner violence is a long-standing problem in our communities. It has been recognized by Parliament and courts for decades. Legislation, such as s. 718.2(a)(ii) statutorily identifies violence perpetuated by an offender on an intimate partner to be an aggravating factor. There are demonstrated examples of Parliament’s and the criminal justice system’s societies’ interest in encouraging the reporting and participation of victims and witnesses in the criminal justice process. These examples include specialized domestic violence courts, police investigative guidelines of domestic violence, targeted resources such as VWAP, and the enactment of the Canadian Victims Bill of Rights in 2015.
[23] Finally, the ability of the court to ameliorate a barrier to testifying in a full, frank and candid manner, by permitting a witness to testify behind a simple device such as a screen, which does not affect a defendant’s right to full answer and defence and to a fair trial, is a relevant consideration in ensuring the criminal trial process is an open, and accessible process in its truth seeking pursuit.
VI. Conclusion
[24] Having reviewed the evidence of Sgt. Gialousis and in light of the factors I must consider pursuant to s. 486.2(3), I accept his evidence in its totality and find the Crown has met its onus on a balance of probabilities. I grant the application for the complainant witness, Ms. Wu, to testify behind a screen.
Released: April 4, 2025
Signed: Justice Cidalia C. G. Faria