Court File and Parties

Ontario Court of Justice

Heard: August 11, 2025 Ruling: August 29, 2025

Court File No.: BARRIE # 20-38105961

Between:

His Majesty the King Applicant

— And —

Christopher Russell Respondent

Reasons for Ruling

In the Matter of an Application for CCTV & Support Person

Counsel:

• Mr. J. Park, Counsel for the Applicant Crown
• Mr. E. Ehlers, Counsel for the Respondent Christopher Russell

Before: C.A. Brannagan J.

Reasons for Ruling

Background

[1] Christopher Russell and Charmaine Jolicoeur were intimate partners for more than a decade. They had four children together, each of whom is currently under the age of 10. Mr. Russell and Ms. Jolicoeur separated in October of 2018.

[2] On February 28, 2020, Mr. Russell entered into a s. 810 recognizance in relation to Ms. Jolicoeur for a period of 12 months. He was required by court order to not have any contact or communication with her, and he was to remain 100m away from her.

[3] On August 11, 2020, Mr. Russell is alleged to have breached the bond by violating the non-communication and remain-away conditions. He is now charged with a single count of breaching a recognizance, contrary to s. 811 of the Criminal Code of Canada. The trial of this matter is scheduled to be heard before me on October 9, 2025.

[4] The Crown applies for an order for Ms. Jolicoeur to testify in the trial against her former intimate partner by way of CCTV, pursuant to s. 486.2(2), while in the company of a support person, pursuant to s. 486.1(2). The Crown submits that these testimonial aids would facilitate her ability to provide a full and candid account of the acts complained of.

[5] Mr. Russell opposes the use of testimonial aids for Ms. Jolicoeur. He asks that I order her to testify at this trial in-person. He resists the Crown's application on two bases:

i. Mr. Russell submits that there is no objective evidence on this application that can assist the court in determining whether the testimony of Ms. Jolicoeur will be facilitated by use of the testimonial aids sought by the Crown; and,

ii. If the court opines that a testimonial aid would facilitate Ms. Jolicoeur's ability to testify, the Applicant has failed to show why testifying behind a privacy screen (which is unopposed), rather than by CCTV, would be insufficient.

Issues

[6] The issues are twofold:

i. Whether the complainant should be permitted to make use of the testimonial aids provided for under ss. 486.1(2) and 486.2(2); and,

ii. Whether the Applicant must demonstrate that a privacy screen would be insufficient before the court may consider the testimonial aid of CCTV.

Evidence on the Crown's Application

[7] The evidentiary basis for the Crown's application consists of two affidavits from two persons involved in the criminal justice system – a Victim Witness Services Worker ("VWSW"), and a police officer with the Barrie Police Service ("BPS").

[8] None of Ms. Jolicoeur, the VWSW, or the police officer testified at the application hearing held before me on August 11, 2025. While viva voce testimony may be heard on the s. 486.2(2) application, it is not required; rather, it is a discretionary call that may be made by the presiding justice: s. 486.2(4). There is no similar provision for s. 486.1(2). In any event, I made no such order in this case.

The VWSW Affidavit

[9] The first of the two affidavits submitted by the Crown is a 12-paragraph document from Lianne Rivet who affirmed that she has been a VWSW for 18 years. She is the VWSW assigned to Ms. Jolicoeur's case.

[10] Ms. Rivet spoke with Charmaine Jolicoeur about testifying in court and the use of testimonial aids on April 11, 2025. During this conversation, Ms. Rivet observed Ms. Jolicoeur's voice to be "quivering, and she was very emotional". The following points emerge from that conversation, which I have determined to be relevant:

i. that Ms. Jolicoeur would pass out if in the same room as Mr. Russell;

ii. that she is triggered when she hears his name, when she is talking about him and especially when in his presence;

iii. that testifying in the same room as Mr. Russell will cause her to have a panic attack, rendering her unable to answer questions or remain focused; and,

iv. that she is very intimidated by Mr. Russell, and fears retaliation from him, stating that she is significantly impacted by what he has done in the past.

[11] Ms. Jolicoeur requests to testify from outside of the courtroom by CCTV, with a support person – either her mother or step-mother.

[12] She does not wish to testify behind a screen inside the courtroom because of her concerns about being in Mr. Russell's physical presence which, she says, will adversely impact upon her ability to tell the court what happened to her.

The BPS Affidavit

[13] The second affidavit submitted by the Crown is a 10-paragraph sworn document from Officer Allport, a member of the BPS, and an assisting officer in the case.

[14] His affidavit offers some limited context to the case. He tells the court that the parties were in a 12-year common-law relationship, the demise of which resulted in Mr. Russell entering into the s. 810 peace bond that is central to this litigation.

[15] Officer Allport swears that on August 11, 2020, Ms. Jolicoeur reported to the BPS that the Respondent had breached the non-communication and non-attend conditions of that bond by attending at her residence on three different dates. He notes that "the victim was fearful of her safety, which prompted her to report the incidents."

[16] His affidavit further advises that he spoke with Ms. Jolicoeur on June 20, 2025, concerning Mr. Russell's upcoming trial. I view the following point as being relevant for my consideration on this application:

i. She expressed that her physiological response to the possibility of testifying in the presence of Mr. Russell was profuse sweating and a panic attack.

Testimonial Aids under Sections 486.1(2), Support Person & 486.2(2), CCTV

[17] Section 486.1(2), Support person – Other witnesses, provides:

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 a support person of the witness' choice be permitted to be present and to be close to the witness while the witness testifies 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.

[18] In s. 486.1(3), Parliament has enumerated seven different factors for the application judge to consider in determining whether to make an order under s. 486.1(2).

[19] Subsection 486.1(4) generally restricts the support person from being a witness in the proceeding, while subsection 486.1(5) provides the presiding justice with the discretion of ordering that the support person and the witness not communicate with one another during the witness' testimony.

[20] Section 486.2(2), Testimony outside court room – Other witnesses, provides:

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.

[21] Parliament has enumerated several non-exhaustive factors in s. 486.2(3) for the presiding justice to consider in determining an application under s. 486.2(2). But for subsections (f) and (f.1) – which are not relevant to this proceeding – the remaining factors in s. 486.2(3) are the same as those found in s. 486.1(3). The enumerated factors 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;

(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.

Issue #1: Whether the Complainant Should Be Permitted to Make Use of the Testimonial Aids Provisions under ss. 486.1(2) and 486.2(2)

[22] The objective of the judicial process is the attainment of truth. That process must be a fair one, reflecting both the rights of an accused and those of society. It must enable the trier of fact to "get at the truth and properly and fairly dispose of the case", while ensuring that the defendant retains the opportunity to make a full defence: R. v. Levogiannis, [1993] 4 S.C.R. 475, at para. 19.

The Canadian Victims Bill of Rights

[23] The Canadian Victims Bill of Rights was enacted in recognition of the harmful impact that crime has on victims and society, to ensure that victims' rights are considered throughout the criminal process and, inter alia, in recognition that consideration of victims' rights is in the interest of the proper administration of justice: Canadian Victims Bill of Rights, S.C. 2015, c. 13, s. 2, at Preamble; Interpretation Act, R.S.C., 1985, c. I-21, s. 13.

[24] In Canada, victims are guaranteed the right to request testimonial aids when appearing as a witness in a criminal proceeding. That right is to be exercised through the mechanisms provided by law: Canadian Victims Bill of Rights, at ss. 13 and 19(1).

[25] The rules of evidence and criminal procedure have evolved through the years to accommodate the truth-seeking functions of the courts. The testimonial aids provisions are tailored to achieve that end, providing the mechanisms through which the evidence of victims may be facilitated: Levogiannis, supra, at paras. 20, 21, 24.

[26] In enacting the Canadian Victims Bill of Rights in 2015, Parliament relaxed the test found in both ss. 486.1(2) and 486.2(2) from one where the court had to form the opinion that the order was "necessary to obtain a full and candid account from the witness of the acts complained of", to one where it must form 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" [emphases added].

[27] The Supreme Court of Canada has interpreted the phrase "proper administration of justice" to include "specific fundamental values such as the ability of courts to control their own process in furtherance of the rule of law", while providing an "intelligible standard … according to which the judiciary [could] exercise the discretion conferred": R. v. Hall, 2002 SCC 64, at para. 103, citing to CBC v. New Brunswick, [1996] 3 S.C.R. 480, at paras. 36-43, and 59, respectively.

When The Testimonial Supports Provisions May Be Relied Upon

[28] The testimonial supports provided for in ss. 486.1(2) and 486.2(2) "permit accommodation of vulnerable witnesses who may experience mental or emotional distress if compelled to testify in open court and/or in the presence of the accused": R. v. J.L.K., 2023 BCCA 87, at para. 30; R. v. Arevalo, 2025 ONSC 3851, at para. 15.

[29] It is uncontroversial that the testimonial aids provisions do not require any measure of exceptionality for their invocation: Levogiannis, supra, at para. 34; R. v. Blake, 2019 ONSC 6026, at para. 20; R. v. J.S., 2023 ONSC 1599, at para. 27.

[30] All that is required is the court's assessment of whether, in its opinion, the testimonial aid in question would facilitate the witness' ability to provide a full and candid account of the acts complained of, or that use of the testimonial aid would be in the interest of the proper administration of justice.

[31] The evidence in support of the application must have "some reasonable relevance to the necessity requirement of the statute", which can allow the judicial officer to formulate the required opinion referred to in the applicable subsection: R. v. P.M., [1990] O.J. No. 2313 (C.A.), at para. 17.

[32] The test for ordering a testimonial aid is not an onerous one, it is simply one that must be met on the civil standard of proof, that is, a balance of probabilities: R. v. J.D., 2022 ONSC 2540, at para. 14.

[33] The decision to make an order under the testimonial aids provisions is at the discretion of the application judge: R. v. Allen, [2007] O.J. No. 1353 (Ct. Jus.), at para. 13.

[34] The Respondent takes the view that the two affidavits filed by the Crown in support of its application cannot assist this court in determining whether Ms. Jolicoeur's testimony would be facilitated by her testifying from outside the courtroom via CCTV.

[35] The Respondent's main objection concerning these affidavits is that their contents speak to the complainant's subjective state of mind, and that the Crown has not presented any objective evidence in support of its application.

[36] However, evidence in support of these types of applications need not take any particular form and judges may consider, among other things, the nature of the allegations and the circumstances of the case: Levogiannis, supra, at para. 34; ss. 486.1(3)(c) and (d) and 486.2(3)(c) and (d).

[37] Expert evidence is not required on an application such as this, and hearsay evidence is admissible: J.D., supra, at para. 12.

[38] In my view, the VWSW and BPS affidavits offer sufficient evidence that is reasonably relevant to my ability to formulate the required opinion under ss. 486.1(2) and 486.2(2).

[39] I also accept, pursuant to Levogiannis and the factors enumerated within ss. 486.1(3) and 486.2(3), that the nature of the allegations (an alleged breach of a recognizance in the context of an intimate partner relationship) and the circumstances of the case (that the alleged breaches occurred multiple times, within less than six months of the bond's imposition) may inform the exercise of my discretion.

Section 810 Recognizance in an Intimate Partner Context

[40] Ms. Jolicoeur seeks the use of testimonial aids in the context of an alleged breach of a s. 810 peace bond. During oral submissions, I asked the litigants if I could consider whether the court that ordered the bond must have accepted that Ms. Jolicoeur was possessed of a reasonable fear of Mr. Russell for that order to have issued.

[41] In response, the Applicant submitted that I could take notice of the fact that the issuing court must have accepted that Ms. Jolicoeur actually feared Mr. Russell, and that her fear was reasonably based. The Applicant's position is that, in these types of applications, the subjective mind of the complainant is very relevant.

[42] For the Respondent, Counsel submitted that he assisted Mr. Russell in voluntarily entering into the bond on February 28, 2020. He said that at that time his client made no admission as to criminal or civil liability. Counsel urged me not to consider the subjective fear of Ms. Jolicoeur as described on this application, or in relation to the peace bond, submitting that her alleged fear is not objectively ascertainable in either case.

[43] Having considered both positions, I am of the view that for the s. 810 recognizance to have issued, the issuing court must have been satisfied that Ms. Jolicoeur had reasonable grounds to fear that Mr. Russell would cause personal injury to her, or to her intimate partner, or to her child, or would cause damage to property.

[44] It is immaterial whether the Respondent chose not to show cause and entered the bond of his own free will to avoid the potentially more consequential outcome of a criminal trial, or if the Crown was put to task in showing cause — in either case the result is the same, in that the issuing court must have been satisfied that the requisite grounds existed for Mr. Russell to enter into the recognizance.

[45] The lack of any acknowledgment of criminal or civil liability by Mr. Russell in entering into the bond is an altogether separate and distinct analytical issue from the issuing court's conclusion that Ms. Jolicoeur's fear of Mr. Russell was reasonably grounded.

[46] As already noted, much objection was made by the Respondent about the complainant's concerns being subjective in nature. However, her subjective fear is an inherent consideration in both the testimonial aids provisions, and in s. 810.

[47] For a s. 810 recognizance to issue, s. 810(1) requires the court to consider the complainant's actual fear of the defendant (the subjective component), while s. 810(3) requires the court to assess whether those fears are reasonably grounded (the objective component) before it may order the defendant to enter into the recognizance: R. v. Soungie, 2003 ABPC 121, at para. 12, citing R. v. Banks, [1995] 4 W.W.R. 698.

[48] The requirement of reasonable grounds for the complainant's fear lends objectivity to her subjective apprehension of fear. It connotes a reasonably-based sense of apprehension about a future event: R. v. Budreo, 46 O.R. (3d) 481, at para. 52. Only where the court is satisfied that both the subjective and objective conditions are met can it legally require the defendant to enter into a recognizance.

[49] As to the testimonial aids provisions at issue here, ss. 486.1(3) and 486.2(3) require the court to consider several enumerated objective factors that are specific to the individual witness who seeks use of the testimonial aid: (a) the age of the witness; (b) the witness' mental or physical disabilities, if any; (c) the nature of the offence (which presupposes consideration of the witness's role in it), (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; etc.

[50] For a court hearing a testimonial aid application, there is no question that it must consider these enumerated objective factors as they subjectively relate to the specific, individual witness who seeks to invoke the relevant provision(s), based on the evidentiary record before it.

[51] On balance, considering the nature of the offence, the long-standing intimate partner relationship between the parties, and society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system, I am satisfied that the evidence on this application allows me to form the opinion that Ms. Jolicoeur is a witness who may experience mental or emotional distress if compelled to testify in open court and/or in the presence of the accused.

[52] It is also telling that, five and one-half years after Mr. Russell entered into the recognizance, Ms. Jolicoeur indicates that she remains fearful of him.

[53] I therefore agree with the Applicant that Charmaine Jolicoeur should be permitted to make use of the testimonial supports provisions under ss. 486.1(2) and 486.2(2).

Issue #2: Whether the Applicant Must Demonstrate that a Privacy Screen Would Be Insufficient Before the Court May Consider CCTV as a Testimonial Aid

[54] The Respondent submits that, should the court find that a testimonial aid would facilitate Ms. Jolicoeur's ability to testify at this trial, testifying in-court behind a privacy screen would be appropriate, and the Crown has failed to establish that a screen would insufficiently address the complainant's concerns.

[55] To be clear, the Respondent does not oppose the complainant testifying in-court behind a privacy screen, while the Applicant and the complainant do oppose it.

[56] Boiled down to essentials, Mr. Russell submits that Ms. Jolicoeur should testify behind a screen, as opposed to by CCTV, because her being physically located inside the courtroom would be preferable for reasons of trial fairness and credibility assessment.

Trial Fairness

[57] To the former point, the right in Canada to confront a witness in a criminal trial exists as "a qualified right and can be subject to exceptions designed to achieve some valid purpose in the administration of justice." Moreover, "the right to face one's accusers in this day and age is not to be taken in the literal sense. It is simply the right of an accused to be present in court, to hear the case against him and to make answer and defence to it": R. v. Allen, supra, at para. 27, citing to R. v. Levogiannis, 62 C.C.C. (3d) 59 and R. v. R(M.E.), 49 C.C.C. (3d) 475.

[58] In response to the submission that it is necessary for a central witness to testify from inside the courtroom, it has been held that: "Justice is not a place; it is a service. All parties do not have to walk through the courthouse door for a criminal trial to take place. A fair adjudicative process can still occur, when appropriate, with a principal witness testifying via videoconference": R. v. Arevalo, supra, at para. 19.

[59] Nor does s. 486.2(2) require the witness to be physically present at the courthouse where the trial is taking place: R. v. Ross, 2024 ONSC 4077, at para. 9.

Witness Credibility

[60] To the latter point, that an issue of witness credibility exists in a given case is an incomplete answer to the question of whether a witness should be permitted to make use of the various testimonial aids available under s. 486.2(2), since the "credibility of witnesses is almost always a factor in trials to some degree": R. v. Mapp-Farouk, 2020 ONSC 5040, at para. 23.

[61] It is also now commonplace for courts to receive evidence by videoconferencing technologies, including from complainants who are providing central and contested evidence: R. v. Brooks, 2020 ONCJ 692, at paras. 9-10; R. v. O'Dea, 2021 ONSC 3706, at paras. 17, 20-21; R. v. Husbands, 2018 ONSC 6831, at para. 16.

Statutory Interpretation: No Sequential Paramountcy of Testimonial Aids

[62] A plain reading of s. 486.2(2) does not evince of any hierarchy or sequential paramountcy of testimonial aids. The wording does not provide that one form of support be rejected before another may be applied for and considered by the court.

[63] Again, for ease of reference, s. 486.2(2) states:

Despite section 650, in any proceedings against an accused, the judge or justice may […] 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 [emphases added].

[64] As the provision plainly reads, the available options for testimonial supports are disjunctively, rather than conjunctively, associated. The 'associated words rule' (noscitur a sociis) should be invoked in such instances; that is, where two or more terms are linked by "and" or "or", rules of statutory interpretation require that "the terms draw their colour from each other": R. v. Ali, 2019 ONCA 1006, at para. 69.

[65] This rule requires that "a term or an expression should not be interpreted without taking the surrounding terms into account. The meaning of a term is revealed by its association with other terms: it is known by its associates": R. v. Ali, 2018 ONSC 2838, at para. 61, citing to Opitz v. Wrzesnewskyj, 2012 SCC 55, at paras. 40-41.

[66] Read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the s. 486.2(2) testimonial aids provision, its object and Parliament's intention in legislating it, the terms "outside the court room", or "behind a screen", or "other device" found in that provision draw their meaning from each another, connoting a menu of options available to the party who seeks to invoke the provision: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, for Driedger's 'modern principle' of statutory interpretation.

[67] Again, there is nothing within either the plain meaning or the statutory construction of s. 486.2(2) that requires the exhaustion of one testimonial aid option over another before the next may be considered. Had Parliament intended any kind of sequential paramountcy of testimonial supports, we must presume that Parliament would have made clear such an intention; in this case, such an interpretation can be neither expressly nor impliedly assumed.

[68] The threshold consideration for testifying via CCTV is no different from, nor more stringent than, the threshold for a witness to testify behind a privacy screen. The test for both is the same; that is, whether "the 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".

[69] Simply stated, in-court testimony behind a privacy screen and out-of-court testimony via CCTV are "equal alternatives": J.D., supra, at para. 6.

Conclusion

[70] The Crown applies for an order from this court for Ms. Jolicoeur to testify from the Victim Witness Assistance Program ("VWAP") office in the courthouse via CCTV, in the company of a support person of her choosing.

[71] On this record, I am satisfied that the psychological and physiological distress that Ms. Jolicoeur may suffer if required to testify inside the courtroom, in the presence of Mr. Russell, is such that she may invoke the testimonial supports provided for under s. 486.2(2).

[72] I also find that testifying in the company of a support person of her choosing may further facilitate Ms. Jolicoeur's ability to testify against her former intimate partner.

[73] Accordingly, I allow the Crown's application as pleaded and permit Charmaine Jolicoeur to testify at this trial from the VWAP office in the courthouse via CCTV, such that she is not required to see Christopher Russell during the giving of her testimony.

[74] Ms. Jolicoeur may also testify in the presence of a support person of her choosing, subject to the following caveats: (1) that person shall not be a witness to this proceeding; and (2) Ms. Jolicoeur and her support person shall not be permitted to communicate during the giving of her evidence.

Released: August 29, 2025

Signed: Justice C.A. Brannagan

Footnotes

[1] The Rivet affidavit makes mention of Mr. Russell being associated to "bikers". The Respondent specifically rejects this allegation, and I give no weight to the suggestion. I focus, instead, on the complainant's psychological and physiological aspects, as communicated through the affidavit.

[2] Several paragraphs in the affidavit discuss the possibility of the complainant testifying from her home. In oral submissions, I asked the Crown whether it was applying for the complainant to testify from her home or from the courthouse. The Crown confirmed that its application was to have her testify from the courthouse only. Additionally, I have disregarded from the Allport affidavit any mention of Mr. Russell's alleged associations, choosing to focus, instead, on the complainant's stated psychological and physiological issues, as communicated through the affidavit.

[3] Pursuant to s. 2 of the Criminal Code, the term "victim" includes a person against whom an offence has been committed, or is alleged to have been committed. The court's use of this term does not detract in any way from the presumption of innocence that Mr. Russell continues to enjoy in this proceeding.

[4] It is noteworthy that in the case of peace bond applications, the applicant/informant bears the onus to establish that the defendant should be required to enter into the bond, while the standard of proof is the civil standard of proof on a balance of probabilities: R. v. Budreo, 46 O.R. (3d) 481. The onus and standard of proof on both the testimonial aids application, and a peace bond application, are the same.