COURT FILE NO.: CR093822
DATE: 20120105
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
S. Ferrone, for the Crown
- and -
Asizkpor Dessouza
E. Ghebria
Defendants
HEARD: January 4, 2012
RULING ON CROWN S.714.1 APPLICATION
Ricchetti, J.
The Application
[1] The Crown brings this application under s. 714.1 of the Criminal Code seeking to have Ms. M.G. testify at trial by way of a video link.
The Charges
[2] Mr. Dessouza has been charged with:
a. Sexual assault on M.G. with a weapon on April 27, 1996; and
b. Uttering a death threat to M.G. on April 27, 1996.
[3] The jury trial of this matter was scheduled to commence this week. This was a pre-trial application by the Crown.
Preliminary Objections by the Defence
[4] The Defence objected to the late filing of this application by the Crown.
[5] What is admitted by the Defence is that the issue of having the evidence of Ms. G. by video link was raised at an earlier Judicial Pre-Trial. The Defence recalls advising that he would object to this. The Crown recalls that the Defence was to advise as to its position. It matters not. What is relevant is that the issue was clearly known to the parties some many months ago.
[6] Further, this issue was of a concern to Defence counsel because Defence counsel wrote on January 2, 2012 to the Crown advising that the Defence assumed the Crown was not pursuing this method of giving Ms. G.’s evidence. Of course, this was not the Crown’s intention. The Crown had believed the Defence had no issue with the proposed method of taking evidence.
[7] The result was the Crown brought this application.
[8] Prior to the hearing of the application, on January 3, 2012, the Defence submitted that he did not have time to deal with this application as it had been raised so late by the Crown. However, the court canvassed with Defence counsel whether the Defence needed more time to respond to the application. The Defence did not want an adjournment but instead asked to be permitted to argue the application the next day. That is exactly what occurred.
[9] While there is no Criminal Rule applicable to this application or any guidance in the Criminal Code for notice of this application, the Defence has a right to reasonable notice of any such application and a reasonable opportunity to respond. In this case, the Defence had both. The Defence has had notice of the application for months. The Defence did not seek any further time to prepare to respond to this application when given the opportunity and was prepared to deal with this on January 4, 2012.
[10] There is no other suggestion of prejudice by the Defence such as the availability of some evidence on the issue that would have otherwise been brought forward.
[11] As a result, the Crown's application will be heard.
[12] The Defence also raises an issue with the sufficiency of the application. The Defence points to bald statements in the Crown's application, some of which were not borne out by the evidence called by the Crown, to suggest the application should be summarily dismissed. I disagree. The evidence to be applied to the Crown’s application is the evidence of Constable Tides and the evidence agreed to by counsel. There is sufficient information in the Crown's application to identify the relief sought and the basis for seeking the relief.
The Evidence
[13] The Crown called Constable Chris Tides. Constable Tides is the Officer in charge of this case.
[14] Ms. G. is the complainant in this case. She was 18 years old at the time of the alleged sexual assault. The allegations are that Mr. Dessouza sexually assaulted Ms. G. while holding a knife to her and then threatened her with death if she told anyone.
[15] Ms. G. is now 33 years old. Ms. G. resides in Ottawa. She is married and has three children. She has a job.
[16] Ms. G. attended for the 1997 preliminary hearing which did not proceed because Mr. Dessouza failed to attend. There is no suggestion Ms. G. wasn't prepared to attend at the preliminary hearing scheduled for 2003. Ms. G. attended for the 2009 preliminary hearing and gave evidence. Ms. G. was prepared to and in some cases attended court the prior trial dates scheduled in this court – with arrangements having been made by Constable Tides to fly her to Brampton and have her remain here for several days. Each time the matter failed to go ahead Ms. G. became more reluctant to attend yet again to deal with this matter.
[17] Ms. G. has told Constable Tides she will not personally attend this trial despite being subpoenaed to do so even if she has to be arrested. She will agree to testify by way of video link with the Ottawa courthouse.
[18] Defence agreed that the court file could be reviewed for a history of what occurred during these proceedings.
Analysis
[19] s. 714.1 of the Criminal Code provides as follows:
A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that 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.
Location and Personal Circumstances
[20] The Crown relies on the location and personal circumstances of Mr. G. to support its application. Even if the court accepted all of the evidence of Constable Tides with respect to the difficulties Ms. G. would suffer as a result of coming to testify at this trial, such as the impact on her new employment, daycare expenses and travel time, these circumstances would not weight very heavily in favour of testimony by video link. Many of these difficulties are shared by most witnesses. Ms. G.'s refusal to attend to testify is nothing new. There are provisions in the Criminal Code to deal with this situation. In short, there was nothing exceptional or highly unusual in these circumstances as it relates to Ms. G. to testify in person.
Costs
[21] The costs to be incurred to have Ms. G. come from Ottawa are not a factor in favour of permitting testimony by video link.
Nature of the Anticipated Evidence
[22] There is no doubt this factor weighs heavily in favour of requiring Ms. G. to attend this trial and give viva voce evidence. She is the complainant. She is the only eye witness. Her testimony is critical to the Crown. Her cross examination is critical to the Defence.
[23] The Defence has a right to make full answer and defence. No doubt Mr. Dessouza seeks to confront Ms. G. with regard to her allegations and to have Ms. G. cross examined. This can still be accomplished despite the use of a video link.
[24] There can be no doubt that it is best when the evidence is given in court. The uncertainties which arise during a trial affecting witnesses: such as a witness' exclusion during objections; the efficient use of exhibits, such as the ability to ensure the witness has the exhibit and is looking at the right portion of the exhibit; and the ability of the trier of fact to observe the witness, are best achieved with live testimony by a witness. However, this right to have a witness give evidence in person before the accused at trial is not absolute. See:
• S.709 Commissioned evidence; • S. 714.1 Video link evidence; • S. 715 Previously given evidence; • S. 486.2(1) under 18 years old or mental or physical disability; and • S. 486.2(2) any witness outside the courtroom or behind a screen or other device.
[25] What must be remembered is that the ability to hear Ms. G.'s evidence and to cross examine Ms. G. will not be seriously impacted if it is done with a reliable, continuous video link. In essence, Ms. G. will be in the virtual presence of the parties and the court during her testimony. Ms. G.'s answers to the questions can be considered and weighed by the trier of fact. Her demeanour can be observed - bearing in mind using demeanour as the primary basis for assessing credibility or even the most significant factor in assessing credibility is dangerous.
[26] Because of the importance of the evidence and, as in this case, where there are no countervailing compelling factors to excuse the witness from having to personally attend, the court readily acknowledges it would be only in the rarest of cases a court would grant an order under s. 714.1 of the Criminal Code to permit a complainant to testify by way of video link.
All of the Circumstances
[27] If the above were the only factors to be considered, the Crown’s application would have been dismissed. However, the section clearly requires the court to consider all of the circumstances of the case.
[28] This is a rare and exceptional case. Let me describe the history of these proceedings:
Preliminary Hearing
• April 27, 1996 -date of alleged offence • Mr. Dessouza arrested • April 28, 1996 - first appearance • Preliminary Hearing scheduled for September 08, 1997 • September 08, 1997 Preliminary Hearing - Mr. Dessouza failed to attend
- Bench warrant issued • December 18, 2001 - Mr. Dessouza arrested upon his return to Canada • Mr. Dessouza released • Preliminary Hearing scheduled for January 7, 2003 • January 7, 2003 - Mr. Dessouza failed to attend -Bench warrant issued • November 5, 2008 - Mr. Dessouza arrested upon his return to Canada • Preliminary Hearing scheduled October 29, 2009 • October 29. 2009 - Preliminary Hearing held - Committed to trial
Trial
• December 1, 2009 - Mr. Maharaj counsel for Mr. Dessouza • December 18, 2009 - Mr. Isreal is new counsel for Mr. Dessouza • February 26, 2010 - trial date set on consent for May 31, 2010 • April 23, 2010 - Mr. Isreal removed as counsel for Mr. Dessouza • May 4, 2010 - Mr. Dessouza told trial will proceed with or without counsel • May 14, 2010 - New counsel to be retained - trial was adjourned • June 14, 2010 - Mr. Hope is counsel of record for Mr. Dessouza • June 30, 2010 - Mr. Hope no longer counsel for Mr. Dessouza. Order made for amicus to cross examine complainant. Ms. J. Johnson agrees to act as amicus • July 19, 2010 - Ms. Johnson advises not acting • August 31, 2010 - new trial date set for February 14, 2011 • January 7, 2011 - Mr. Dessouza retains new counsel but the trial date remains • February 4, 2011 - new counsel obtains adjournment of the trial to April 26, 2011 • February 7, 2011 - new trial date is inconvenience for new counsel - trial adjourned to August 2, 2011 • June 21, 2011 - new counsel removed as counsel of record - Mr. Dessouza told trial to proceed with or without counsel • June 30, 2011 - Mr. Dessouza told trial will continue with or without counsel • July 8, 2011 - Mr. Starr is approved as amicus to cross examine complainant • Rowbotham application brought - scheduled to be heard August 15, 2011 • July 28, 2011 - trial adjourned • September 6, 2011 - trial date set for January 3, 2012
[29] As can be seen from the above, Mr. Dessouza caused approximately 9 years of delay in this matter as a result of his leaving the country and failing to attend court in 1997 and 2003. Ms. G. was prepared to testify at the preliminary hearings and did attend and testified at the preliminary hearing in October 2009 – some 13 years after the alleged sexual assault and death threat occurred. Ms. G. has been forced to continue to deal with this, no doubt difficult and traumatic event and the repeated stress of potentially having to publicly discuss the events and be cross examined on what happened. She has not been able to get on with her life or put this behind her.
[30] However, that was not the end of the difficulties for Ms. G.. The trial was initially set for May 31, 2010 on consent of Mr. Dessouza’s counsel. Ms. G. had to be and was ready to testify about these events again. However, because of a late change in counsel by Mr. Dessouza and despite the fact he had been told the trial would proceed with or without counsel, the trial did not proceed.
[31] The second trial date was set for February 14, 2011. Just days before this trial date, Mr. Dessouza once again changed counsel. The trial was adjourned to April 26, 2011. Within days, that new trial date is changed by Mr. Dessouza’s new counsel to August 2, 2011. Ms. G. attended and was ready to testify.
[32] Mr. Dessouza subsequently changed counsel several times or indicated to the court he would act on behalf of himself.
[33] Shortly before the August 2, 2011 trial date, a Rowbotham application was brought returnable on August 15, 2011. The trial had to be once again adjourned.
[34] The evidence of Constable Tides was that Ms. G. had agreed to and did attend the previous trial dates except for the August 2011 date because it was adjourned in advance. This time Ms. G. told Constable Tides that she would not attend any new trial date.
[35] The position of Ms. G. is not entirely surprising. The charges are almost 16 years old. She has moved on with her life. She has a new life. She has been forced to continue to live with this matter the entire time. She has been diligent about attending the preliminary hearings. She has been diligent and was prepared to attend all the prior trial dates.
[36] In my view, there is very little negative impact on the Defence in being required to cross examines Ms. G. by way of video link. To some extent, any such impact is lessened by the fact Mr. Dessouza’s counsel has cross examined Ms. G. at the preliminary. The evidence will not be a total surprise. Further while a cross examination over a video link may not be as compelling to a jury, neither will the examination in chief of the Crown’s primary witness. I note that the exact same circumstances would occur if an order was granted under s. 486.2(1) of the Criminal Code permitting Ms. G. to testify outside of the court room. Typically, these orders, when granted result in a video link with the witness in another part of the courthouse.
[37] On the other hand, we are at this point because of the actions of Mr. Dessouza over the past almost 16 years. The truth finding aspect of a trial will be avoided because Mr. Dessouza had acted in a way to delay and frustrate this matter from being adjudicated on its merits unless Ms. G.’s evidence is obtained through the video link.
[38] All of the factors, including the importance of Ms. G.'s evidence, Mr. Dessouza's right to make full answer and defence and the history of this proceedings, make this a highly unusual and rare case.
[39] The circumstances of this case favours granting the Crown’s application.
[40] The case law provided by counsel does not really assist. This is not a case where the location or personal circumstances are a factor in granting the application.
Conclusion
[41] Balancing the above factors and because the circumstances are so unique, I am satisfied the Crown has satisfied this court that it would be appropriate in all to the circumstances to permit Ms. G. to testify by video link.
[42] The Crown’s application for the testimony of Ms. G. to be by video link is granted.
[43] Ms. G.’s evidence will be taken in the following method:
i. done through a reliable two way video link at the Ottawa courthouse which permits the Brampton courtroom to see and hear Ms. G. at all times and for Ms. G. to see and hear the Brampton courtroom;
ii. Ms. G. will be sworn or affirmed at the Ottawa courthouse prior to giving her evidence but while on the record in Brampton;
iii. only court personnel will be present during Ms. G.’s evidence;
iv. arrangements will have to be made for Ms. G. to use the video link to see any exhibits which may be put to her during her evidence;
v. we will start Ms. G.’s evidence at 10 am in the morning;
vi. Ms. G. will be ordered not to discuss the details of this case with anyone during breaks, lunch or overnight if necessary;
Ricchetti, J.
Released: January 5, 2012.
COURT FILE NO.: CR093822
DATE: 20120105
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Asizkpor DESSOUZA
Defendant
REASONS FOR JUDGMENT
Ricchetti, J.
Released: January 5, 2012