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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
DATE: 2025-04-17
COURT FILE No.: Brampton 24 31101758
BETWEEN:
HIS MAJESTY THE KING
— AND —
GAGAN AJIT SINGH
Before Justice Christopher K. Assié
Heard on April 15, 2025
Reasons for Judgment released on April 17, 2025
Mr. Moses Otim — counsel for the Crown
Ms. Victoria Struguresco — counsel for the accused Gagan Ajit Singh
C.K. Assié, J.:
Introduction
[1] The Crown has brought an application pursuant to s. 714.1 of the Criminal Code to permit the complainant in a sexual assault case to testify remotely by video from another province. The defence objects to the application. The defence also raises a jurisdictional issue. Counsel takes the position that only the trial judge (or a case management judge appointed under s. 551.1 C.C.) has the authority to decide the issue. Given that I am not the trial judge, the defence submits that I cannot adjudicate the application.
[2] The two questions I must decide are:
Is a trial judge or case management judge appointed under s. 551.1 C.C. the only jurist who can decide a s. 714.1 C.C. application?
If I conclude I have jurisdiction to hear the application, should the Crown’s application be granted in this case?
Background
[3] Mr. Singh is scheduled to be tried in the Ontario Court of Justice in Brampton on April 23rd through 25th, 2025. The application was brought before me on April 15th in ‘plea court’ – a catch all court that deals with resolutions and with motions that cannot be heard before a justice of the peace.
[4] I am currently not assigned to hear Mr. Singh’s matter. I say ‘currently’ because in this jurisdiction it is common for several matters to be assigned to a trial court. As matters are completed and a court opens up, trials from other courts are moved before whichever jurist is free to hear the case. It may very well be that on April 23rd I end up being the trial judge. However, as it stands now, the trial coordinator has the matter scheduled to begin before a per diem jurist who is not available to hear the application prior to the first day of trial.
[5] The problem with leaving the decision to the first day of trial is that either the Crown forces the witness to come in person, thus obviating the need for the application, or the Crown waits until the day of trial, and if the application is unsuccessful, seek an adjournment. Leaving the decision to a later date would be unhelpful to the parties and to the administration of justice.
Do I have jurisdiction to decide a s. 714.1 C.C. application if I am not the trial judge?
[6] I asked both counsel to provide me with jurisprudence on this point. Neither were able to present any caselaw on the jurisdictional issue. My own caselaw research was fruitless.
[7] The defence position rests on two arguments:
Only a trial judge has jurisdiction to hear evidentiary applications and s. 714.1 C.C. is effectively an evidentiary application.
Section 551.3(1) C.C. provides an exhaustive list of issues a case management judge may adjudicate as though they were acting as the trial judge. Any issue listed in the section is thus within the absolute jurisdiction of the case management judge or trial judge. Consequently, any issue listed in the section may only be decided by trial judge or case management judge.
[8] As to the argument that a s. 714.1 C.C. application is an evidentiary application, I respectfully disagree. A s. 714.1 C.C. application determines the manner in which evidence is presented – not its admissibility.
[9] I also have difficulty accepting the argument that any issue listed in s. 551.3(1) C.C. is solely within the jurisdiction of the trial judge or case management judge. The section reads as follows:
551.3 (1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by
(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances;
(b) encouraging the parties to make admissions and reach agreements;
(c) encouraging the parties to consider any other matters that would promote a fair and efficient trial;
(d) establishing schedules and imposing deadlines on the parties;
(e) hearing guilty pleas and imposing sentences;
(f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented;
(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to
(i) the disclosure of evidence,
(ii) the admissibility of evidence,
(iii) the Canadian Charter of Rights and Freedoms,
(iv) expert witnesses,
(v) the severance of counts, and
(vi) the separation of trials on one or more counts when there is more than one accused; and
(h) ordering, in each case set out in subsection 599(1), that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried.
[10] Section 551.1 C.C. provides the authority for the chief justice, or designate, to appoint a case management judge. The case management judge is given the authority to make procedural, jurisdictional, and evidentiary rulings that are typically within the exclusive jurisdiction of the trial judge. The trial judge is bound by the rulings made by the case management judge unless the trial judge is satisfied that it would not be in the interests of justice if, for example, fresh evidence is adduced.
[11] The defence points to subsection (a) of section 551.3(1) C.C. The section lists one of the areas a case management judge has the authority to address, which is with “assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances.” The argument is that since a s. 714.1 C.C. application considers the “witness’ needs and circumstances,” then only a trial judge or case management judge can hear the application.
[12] The problem with that argument is it requires omitting the first part of the sentence – “assisting the parties to identify witnesses to be heard.” I’m not being asked to assist the parties to identify witnesses to be heard. I’m being asked to decide how a witness, who has already been identified by one of the parties, may be heard. Even if I am wrong on that point, the second problem with the argument is the belief that any issue that touches a “witness’ needs and circumstances” is the exclusive purview of the trial judge or case management judge. Section 486.2 C.C. relates to the manner in which a witness in a sexual assault trial may testify – behind a screen or by video. It explicitly grants the authority for any jurist having jurisdiction in the judicial district where the proceedings will take place to make the decision. Simply because an issue is listed in s. 551.3(1) C.C. does not make it the exclusive jurisdiction of a trial judge or case management judge.
[13] The opening paragraph of section 714.1 C.C., states as follows:
714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including…
[14] I emphasized the wording of the section – “the court.” It does not say “the trial judge.”
[15] The language used in s. 714.1 C.C. is similar to s. 715.235(1) C.C., which states:
715.235(1) The court may, with the consent of the prosecutor and the offender, allow an offender to appear by audioconference or videoconference for sentencing purposes.
[16] Section 715.235(1) C.C. grants jurisdiction to the court to permit an offender to be sentenced by video conferencing. Under section “4(ii) Guilty Pleas” of The Practice Direction of the Ontario Court of Justice dated March 31, 2025, titled, “Mode of Appearance for Ontario Court of Justice Criminal Proceedings,” permission to appear by video may be granted by any judicial officer presiding at a prior court appearance or through a written application submitted to the court to grant the permission. The authority to permit the offender to appear by video is not limited solely to the jurist who hears the plea.
[17] Given that the language in s. 714.1 C.C. is identical to s. 715.235(1) C.C. as it relates to which jurist has jurisdiction to decide the issue, I find that I have the jurisdiction to decide the remote testimony application even though I am not currently assigned as the trial judge.
[18] The defence position on jurisdiction becomes even more untenable when section 714.1 C.C. is compared to s. 486.2 C.C. – a clause that deals with permitting a witness to testify from outside the courtroom, including via video link. Section 486.2(2.1) C.C. states:
486.2(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
[19] In the case at bar – a case in which the witness is a complainant in a sexual assault trial – the Crown could have brought an application under s. 486.2 C.C. to have the witness testify by video link and I would have the jurisdiction to decide the matter. However, the defence position is because the Crown brought the application under s. 714.1 C.C. to have the complainant in a sexual assault trial testify by video link, I do not have the jurisdiction to decide the matter. I have difficulty accepting that position.
[20] Furthermore, there are great practical reasons to permit any jurist to hear this type of application. If the trial judge has exclusive jurisdiction to decide the application, then either the application will wait until the morning of trial or the trial coordinator will have to assign a trial judge to hear the application ahead of time. Waiting until the morning of trial is unworkable. The parties need to know whether their witnesses may testify by video or whether they need to travel prior to the morning of trial.
[21] Having the trial coordinator assign jurists ahead of time also causes difficulty to the efficient use of judicial resources. Trial courts have several trials scheduled for the same day. As a matter ends in a courtroom, a trial from another courtroom is moved into that courtroom. If all trials with a s. 714.1 C.C. application had to be heard by the jurist who decided the application, then that would make it impossible to move cases on the morning of trial. Currently, the only matters that cannot be moved are those with ss. 276/278 C.C. applications because s. 278 C.C. explicitly states that those applications must be heard by the trial judge. Given the post-pandemic experience, s. 714.1 C.C. applications have become more routine and requiring jurists seized of routine applications would further make the justice system less efficient.
[22] The fact that a s. 714.1 C.C. application can be heard by a jurist other than the trial judge does not limit the authority of the trial judge to make revisions to the order. The trial judge maintains the ability, as the facts change, to control the trial process in their court.
[23] In conclusion, I find that any judge having jurisdiction in the judicial district where the proceedings will take place to have the jurisdiction to hear an application under s. 714.1 C.C.
Should the witness be permitted to testify from another province in this case?
[24] Now that I have concluded that I have jurisdiction to hear the application, I must decide the merits of the Application.
Background
[25] Mr. Singh is charged with sexual assault, uttering threats, and extortion. The parties have advised that the case against Mr. Singh rests entirely on the testimony of the complainant. The Crown has filed an affidavit from the officer in charge of the case as part of the s. 714.1 C.C. application. No viva voce evidence was called. The officer in charge’s affidavit contains information provided from the complainant to an employee of the Victim Witness Assistance Program and to another officer who has been acting as a liaison with the complainant.
[26] To summarize the information contained in the affidavit, the complainant has moved to another province and does not plan to return to this jurisdiction anytime soon. If the complainant was required to attend court, she would not have to take time off work or school and would not incur any financial loss. Though she currently assists her mother because of her difficulty walking following a foot injury, the complainant has a brother who is also available to assist their mother. The affidavit details that the complainant is able to use Zoom and will be able to testify from a suitable location in her home without distractions or interruptions.
[27] Without asking the details of where the complainant resided, I confirmed with the Crown that she lived in a metropolitan area that had direct flights to our jurisdiction.
Position of the Parties
[28] The Crown’s position is the witness should be permitted to testify by video because she lives in another province and is assisting with her mother’s recovery. Furthermore, the Crown notes that there is no requirement for “exceptional circumstances” to be present for the application to be granted.
[29] The defence position is that the witness should testify in person because an assessment of the complainant’s credibility will be crucial in this case, that there needs to be “exceptional circumstances” to justify departing from the presumption that witnesses testify in person, and that the Crown has not satisfied its burden to depart from the presumption.
Analysis
[30] Section 714.1 C.C. reads as follows:
714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including
(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness were to appear in person;
(c) the nature of the witness’ anticipated evidence;
(d) the suitability of the location from where the witness will give evidence;
(e) the accused’s right to a fair and public hearing;
(f) the nature and seriousness of the offence; and
(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.
[31] The starting position is that all witnesses are expected to testify in person. As Justice O’Marra recently stated in R. v. E.R., et al. (7 April 2025), Brampton 23-Y3110456-03 (OCJ):
[24] Section 714.1 is a remedial provision that permits the court to facilitate the evidence of a witness who seeks to give testimony other than the usual manner. (See: R. v. Denham, 2010 ABPC 82, [2010] A.J. No. 1435 (Alta. Prov. Court) and R. v. K.S., 2020 ONCJ 328 at para. 15.)
[25] A witness seeking the accommodation of s. 714.1 must have a reason to invoke the section. It is not the law of Canada that witnesses have the option to give virtual evidence simply because they would prefer to do so. Implicit in this principle is the recognition that the best evidence – in-person testimony – remains the default standard for taking evidence in a criminal proceeding. (See: R. v. Heyman, 2000 YTTC 502 (Yukon Territorial Court) and R. v. K.S. at para. 16.)
[26] Remote witness testimony is increasingly essential in maintaining trial fairness while allowing the criminal justice system to evolve alongside technological advances and societal needs. The use of remote testimony has been increasingly important in recent years since the advent of the COVID-19 pandemic. (See: R. v. Levogiannis, [1993] 4 S.C.R. 475, at para. 22.)
[32] Much has been written about what is gained and lost with remote testimony. A significant disadvantage that I would add to the list of losses when remote testimony is employed is the loss of solemnity. Requiring a witness to attend the courthouse emphasizes the seriousness of the occasion and the importance of the process on the witness. There is a reason why judges and clerks wear robes, why counsel are required to wear business attire, and why counsel are required to address the court standing from a lectern. The formality of the process is meant to impress upon the participants the importance of the trial. The hope is that this will lead to the presentation of the best quality evidence. We must recognize that adopting procedures that reduce the solemnity of the occasion will negatively impact the quality of evidence presented. In some instances, the court may find this is an acceptable bargain; the court may find it is better to have lower quality evidence than not to have it at all. However, we must not be blind to the trade off and we should attempt to minimize it when possible.
[33] The first factor in the analysis under s. 714.1 C.C. is an inquiry into the location and personal circumstances of the witness. In this case the witness lives in a metropolitan area in another province that has direct flights to our jurisdiction. She would not have to take time off from work or school. She does not have small children for whom she is the primary caregiver. Though she assists her mother, the affidavit fairly acknowledges that her brother is able to fulfill her role.
[34] The second factor is the cost that would be incurred if the witness were to appear in person. I was not advised of the details regarding the expenses. However, I can infer it would include the cost of a return domestic plane ticket, food, taxis, and hotel accommodations, all of which would be covered by the government.
[35] The third factor is the nature of the witness’ anticipated evidence. In this case, the witness’ evidence is the entirety of the Crown’s case. There are no other witnesses. The defence will hotly contest her credibility.
[36] The fourth factor is the suitability of the location from where the witness will give evidence. The affidavit advises that the witness has the ability to use Zoom and the ability to testify from a room in her home in which she will not be disturbed or interrupted. The Crown advised that the witness had ‘Zoomed’ into court earlier in the morning of the Application and had logged off, though I did not notice her. The Crown further advised, as an officer of the court, that he spoke to her over Zoom and there were no technological issues.
[37] The fifth factor is the accused’s right to a fair and public hearing. On the one hand, the accused’s right to a fair and public hearing would be minimally impacted. The video link is public and accessible to anyone who attends court physically – and virtually by anyone who connects by Zoom. The scope of cross-examination would not be impacted. However, the loss of solemnity in having a witness testify from her home may negatively impact the accused’s right to a fair trial. Furthermore, courts are generally less willing to allow remote testimony the more important the witness is to the ultimate issue in the trial and the more their credibility will factor in the case (See: R. v. S.D.L., 2017 NSCA 58 at para. 32).
[38] The sixth factor is the nature and seriousness of the offence. Though there are no categories of offences for which remote testimony cannot be used, the more serious the offence, the higher the burden is on the party attempting to displace the presumption of in person testimony. The offence in this case is sexual assault, extortion, and uttering threats. The offences are serious and demand a significant reason to depart from the presumption of in person testimony.
[39] In conclusion, Mr. Singh faces very serious criminal allegations. The consequence of being convicted is likely a lengthy custodial sentence. The complainant in this matter has no employment, education, family obligations, or mobility difficulties that would prevent her from attending in person. Furthermore, she lives in a metropolitan area in which she can access direct flights to this jurisdiction. This is a case where the request for remote testimony is out of convenience and not necessity. The witness’ inconvenience in this case fails to displace the presumption that her testimony should be provided in person.
[40] The Crown’s application is dismissed.
Released: April 17, 2025
Signed: Justice Christopher K. Assié