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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: August 25, 2025
Court File No.: Toronto Region 4810 998 23 48115940
Between:
His Majesty the King
— and —
S.K.A.
Before: Justice C. Faria
Heard on: August 20, 2025
Oral Decision: August 20, 2025
Written Reasons for Ruling of s. 486.2 CCTV Application: Released on August 25, 2025
Counsel:
Nilam Lakhani — counsel for the Crown
Yuvika Johri — counsel for the accused S.K.A.
Faria J.:
I. Overview
[1] S.K.A. is charged with 9 criminal offences. He is alleged to have sexually assaulted his wife twice, assaulted her five times, and uttered two threats to her during April and May 2023 contrary to the Criminal Code.
[2] Before the start of the trial, the Crown filed an application requesting the complainant testify via CCTV, or in the alternative, behind a screen, pursuant to s. 486.2(2). The Defence filed a response opposing the application.
[3] On the first day of trial, August 18, 2025, the Crown withdrew its application. The trial began with the evidence of K.P., the complainant, testifying in person and without any testimonial aids.
[4] On August 20, 2025, the second day of trial, the Crown renewed its application and requested K.P. continue the examination in-chief via CCTV. The Defence continued to oppose the use of either CCTV or a screen.
[5] Submissions were heard. An oral ruling was made the same day granting the application, with reasons to follow. These are my reasons for the ruling.
II. Evidence
[6] The Crown filed an affidavit from D.C. Julia Kotes signed August 7, 2025. She summarizes a conversation she had with the complainant, K.P. on June 23, 2023. A brief summary of her affidavit is as follows:
- K.P. is 32 years old.
- She married S.K.A in August of 2021 and they share a son.
- K.P. has not seen or communicated with S.K.A. since May 28, 2023. Their son lives with her, and they have no custody agreement or family court order regarding that child.
- K.P. received an e-transfer from S.K.A. of 5000 Indian rupees with no message on June 20, 2025. This is the only money she has received since their separation on May 28, 2023.
- The charges are physical, sexual, and threatening in nature.
- K.P. said she feels scared of S.K.A. She knows he can control her and has done so in the past, even with a look.
- K.P. said that his look makes her unable to speak freely.
- K.P. said S.K.A.'s look impedes her ability to express details and explain what happened to her.
- K.P. said she is nervous, has "stage fright" and having to see S.K.A. in the courtroom and face him adds to these feelings. She feels she will not recall all the details during the trial if he is looking at her.
- K.P. believes she will be very emotional seeing him and this will be a distraction.
- K.P. is requesting a testimonial aid so she can concentrate without fear.
[7] The Crown added that after testifying in person in the courtroom, in the presence of S.K.A. on Monday, August 18, 2025, K.P. renewed her request to testify outside the courtroom with Officer in Charge (OIC) for the day, P.C. Westcott. She stated she was unable to testify to details and complained S.K.A.'s presence negatively affected her.
[8] The Defence did not cross-examine either D.C. Kotes, or OIC Westcott.
III. Position of the Parties
[9] The Crown relied on her factum, submitting that K.P. requires a testimonial aid to provide the court with a full and candid account of the allegations. She argues that given the nature of the allegations and the fears of the complainant, permitting K.P. to testify outside the courtroom, or in the alternative, behind a screen, will facilitate K.P.'s testimony.
[10] The Crown further submitted that K.P.'s testimony in person without a testimonial aid on the first day of trial demonstrated good faith and an effort to testify without accommodation. K.P.'s renewed request is now based on her experience, not just her anticipated fear.
[11] The Defence submitted the Crown has not met its onus. She submits K.P.'s feelings of nervousness are normal for all witnesses. K.P. can avoid looking at S.K.A. if she chooses.
[12] The Defence further submitted that if K.P. is permitted to testify via CCTV, the technology cannot be relied upon to not negatively impact her cross-examination, and presentation of exhibits to K.P. This, she submitted, will affect S.K.A.'s right to a fair trial and full answer and defence.
[13] In addition, the Defence submitted that K.P. demonstrated on the first day of trial that she is well able to testify without an aid as she provided detailed answers to the Crown's questions.
IV. Legal Principles
[14] 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.
[15] Per s. 486.2(3), the factors to considered are:
(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.
[16] The onus is on the Applicant Crown on a balance of probabilities.
[17] The Canadian Victim's Bill of Rights, which came into force in July 2015 states:
13 Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the offence.
V. Analysis
[18] Jurisprudence and the development of the legislation provide context and guidance to my analysis.
[19] The Supreme Court determined in R. v. Levogiannis, [1993] 4 S.C.R. 475 at paras. 17, and 31-34 that 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.
[20] 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, R. v. Turnbull, 2017 ONCJ 309 at paras. 5-6.
[21] Parliament changed the language of s. 486.2(2) from the order having to be "necessary to obtain a full and candid account from the witness of the acts complained of", [emphasis added] to "would facilitate the giving of a full and candid account by the witness of the acts complained" which is a lower threshold.
[22] 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."
[23] 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.
[24] Moreover, the Supreme Court has been repeatedly clear that complainants testifying in a sexual assault case can experience revictimization, testifying can be traumatizing and harmful to them, and the nature of some alleged sexual offences will often favour the granting of accommodations, R. v. Barton, 2019 SCC 33 at para. 1, R. v. R.V., 2019 SCC 41, at para. 33, and R. v. D.D., 2000 SCC 43, at para. 60.
[25] In this case, the particularly relevant factors are s. 486.2(3)(c) (d) (e) (f) (g) and (h).
[26] The nature of the allegations, as outlined in the Applicant's factum and not disputed by the Defence, occurred in April and May of 2023. The specifics of the charges are that:
i. The two sexual assaults are penetrative in nature. During the first incident, S.K.A. attempted to remove K.P.'s clothing, she said "no", he slapped her face, mounted her, put his penis in her mouth, physically moved her and then forcefully penetrated her vagina and ejaculated in her. The second allegation of sexual assault was also penetrative and included slapping K.P. in the face.
ii. The assaults include S.K.A. allegedly twisting K.P.'s arm, breaking her bracelet in the process, slapping her face, pushing her repeatedly causing her to fall, on one occasion the fall caused an injury to her leg, and punching her in the face.
iii. The threats include telling K.P. he would kill her and her son.
[27] These are serious allegations of violations that require evidence of a personal, intimate nature. The evidence can be, and in this case, K.P. states would be, difficult for her to provide in the presence of S.K.A.
[28] These charges are in the context of an intimate partner relationship. K.P. married S.K.A. in August 2021, and joined him in Canada in March 2023. She informed D.C. Kotes that she has no support system in Canada. I find the nature of the allegations combined with the nature of the relationship, in addition to the dependence of K.P. on S.K.A. as a newcomer to Canada, exacerbates her vulnerability to S.K.A. I accept her articulation that being in his presence in the courtroom impedes her ability to testify against him.
[29] K.P. has clearly expressed she is afraid of S.K.A. and feels controlled by his look. His presence further exacerbates her nervousness and difficulty speaking in public. Although she did not use the word "intimidated", I find the description of her fear and her need to avoid his looking at her while she testifies fits the definition of feeling intimidated.
[30] Society has an interest in ensuring that complainants of sexual assaults can participate in the criminal justice court process in a way that allows them to provide a full and candid account of their evidence to the court. It is for this reason that the wording changed from "necessary" to "facilitate".
[31] Defence is correct that a witness' nervousness and discomfort are insufficient to meet the Crown's onus. However, when fear is expressly articulated, as in this case, and the witness' feelings are elevated to the point identified as impeding testimony, then these feelings are a barrier to a full and candid account. This barrier impedes the court's the truth-seeking function.
[32] In this case, the nature of the charges, the nature of the intimate partner relationship, and the fear the complainant expresses require accommodation. This is particularly so when the ability of the court to ameliorate a barrier to testifying in a full, frank and candid manner, by permitting a witness to testify via CCTV is easily available.
[33] In addition, I also consider the fact K.P. tried to testify in the presence of S.K.A. without a testimonial aid. I observed her avoiding eye contact with S.K.A. coming into the courtroom, while testifying and when leaving the courtroom. I observed her look down and away frequently when the Crown asked her questions. I also observed her become emotional and try to regulate herself. Her effort showed a good faith attempt to proceed with out accommodation.
[34] The Defence concern with the technology not working is valid, particularly if it occurs at an inopportune time during cross-examination.
[35] Given the dependence on technology that permeates the courtroom process, this is possible. But it is no different than a court reporter's recording technology unexpectedly failing, the internet going down unpredictably, or the loss of computer functionality by any of the litigants.
[36] Since the COVID-19 pandemic in 2020, criminal courts in this jurisdiction have been using remote appearance technology regularly in criminal proceedings, including trials, when warranted. The possibility of a technical challenge does not impact S.K.A.'s right to full answer and defence or to a fair trial.
[37] In addition, the CCTV process enables the Defence to put exhibits to the witness as if she were in the courtroom. The court's ability to observe the witness' demeanour and response during cross-examination is not affected, and in some instances, is better via the CCTV with full facial and body view than in the courtroom.
[38] All the factors relevant to this case favour the granting of the application.
VI. Conclusion
[39] I find the Crown has met its onus on a balance of probabilities. I grant the application for the complainant K.P. to continue her evidence via CCTV.
Released: August 25, 2025
Signed: Justice C.C.G. Faria