ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 09-30325
Date: 2012/07/10

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – TOBY LITTLE OTTER LAND Respondent

David Elhadad and Carl Lem, for the Applicant
Anne London Weinstein and Neil Weinstein, for the Respondent

Heard: June 27-28, 2012

PRE-TRIAL RULING #2 REGARDING Support persons under s. 486.1

AITKEN j.

Nature of the Application

[ 1 ] The Crown seeks an order under ss. 486.1(1) or (2) of the Criminal Code , R.S.C. 1985, c. C-46 that a support person of the witness’ choice be permitted to be present and to be close to prospective witnesses, J.G-M., Thérèse Germain, and Kim Haines, while that witness testifies. The Defence consents to such an order being made under s. 486.1(1) in regard to Thérèse Germain and Kim Haines, due to their acknowledged mental disabilities, but takes the position that inadequate evidence has been adduced to establish that a support person is required for J.G-M. under either s. 486.1(1) or s. 486.1(2) of the Code .

Legislative Framework

[ 2 ] Under s. 486.1(1), the judge shall make an order allowing a support person if the witness is under 18 years of age or if the witness has a mental or physical disability, unless the judge is of the opinion that the order would interfere with the proper administration of justice. Thus, this section creates a presumption in favour of a support person in regard to witnesses under 18 years of age and those with a mental or physical disability. The presumption can be rebutted upon any opposing party satisfying the presiding judge that provision of a support person would interfere with the proper administration of justice.

[ 3 ] J.G-M. is now 18 years of age. There is nothing in the wording of the section which implies that the relevant time to consider the age of the witness is any time other than when she is testifying. Therefore, this aspect of s. 486.1(1) does not apply to J.G-M. This leaves open the consideration of whether the Crown has established that Ms. G-M. suffers from any mental or physical disability. That will be considered shortly.

[ 4 ] Under s. 486.1(2), the judge may make an order allowing a support person if the judge is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of . Thus, there is no presumption in favour of a support person for those witnesses not covered under s. 486.1(1). In making this determination, the judge must, under s. 486.1(3), take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of the relationship between the witness and the accused, and any other circumstances that the judge considers relevant.

[ 5 ] In opposing an order for a support person for J.G-M., the Defence argues that: (1) inadequate evidence has been tendered to establish that Ms. G-M. has either a physical or mental disability under s. 486.1(1); (2) inadequate evidence has been tendered to establish that a support person is necessary under s. 486.1(2); and (3) the evidence that Ms. G-M. can provide does not relate to “the acts complained of” under s. 486.1(2) in that she was not present at the apartment when Dominic Doyon was killed.

Analysis

[ 6 ] The evidence on this voir dire relating to J.G-M. is limited.

[ 7 ] Ms. G-M. is currently 18 years of age and will still be 18 when she testifies at trial in the fall of 2012. Thus, Ms. G-M. is a youthful witness, though an adult. She did not present – either in her interviews with Detective Francine Taillefer or at the Preliminary Inquiry – as being shy, intimidated, or reticent to talk. As well, she professed to remembering quite well the events of which she spoke, though she acknowledged she could not be clear in regard to certain details. In short, there is inadequate evidence before me to the effect that Ms. G-M.’s youth would create a barrier to her being able to provide a full and candid account of what she observed.

[ 8 ] There is no suggestion that Ms. G-M. is under any physical disability that would bring her under s. 486.1(1) or be relevant under s. 486.1(2).

[ 9 ] There is no direct evidence that she suffers from any mental disability that would bring her under s. 486.1(1) or be relevant under s. 486.1(2).

[ 10 ] The Crown asks the Court to infer, after watching the videotape of her interviews with Detective Taillefer and after reading the transcript of her evidence at the Preliminary Inquiry, that Ms. G-M. does have some mental disabilities. More specifically, the Crown argues that it is clear from the way Ms. G-M. answered some questions on each occasion that she is immature, she has difficulty understanding some questions, and she loses patience easily.

[ 11 ] The Court is unable to draw these inferences either from the interviews Ms. G-M. had with Detective Taillefer or from her testimony at the Preliminary Inquiry. During the interviews, Ms. G-M. answered questions clearly and without hesitation. On the rare occasion when she did not understand a question, one could see why she may have had difficulties.

[ 12 ] At the Preliminary Inquiry, the videotapes of Detective Taillefer’s two interviews with Ms. G-M. were played as part of Ms. G-M.’s evidence in chief and then Crown counsel asked Ms. G-M. some additional questions. Many of those questions were leading. Crown counsel also jumped from topic to topic in a manner which many witnesses would find confusing. Nevertheless, Ms. G-M. had no obvious difficulty understanding and answering the questions. She was then subjected to lengthy cross-examinations by Mr. Land’s then-counsel, Gary Barnes, and by Mr. St. Cyr’s counsel, Matthew Webber. Her evidence was dissected, prodded, and analyzed in detail. Ms. G-M. remained responsive and coherent throughout. It was only under re-examination, when Crown counsel asked her to define certain words used during cross-examination, that Ms. G-M. “lost it”, swore in English and French, refused to answer any more questions, and stormed out of the courtroom. Her grandmother, Hélène Giroux, who had been acting as Ms. G-M.’s support person, explained: “It’s because she loses patience when she’s too long, and she gets confused, and when she gets confused, she loses patience, and that ...” After a short recess, Hélène Giroux was able to coax J.G-M. back into the courtroom, and her re-examination was completed. By this time, Ms. G-M. had been in the witness box for the entire day going over the same limited evidence repeatedly.

[ 13 ] The evidence falls short of persuading me that mental disability is a concept that applies to Ms. G-M. under ss. 486.1(1) and (2) in terms of making it more difficult for her to provide a full and candid account of what she heard and observed.

[ 14 ] There is no question that Ms. G-M. was fond of Dominic Doyon and considered him her boyfriend. Clearly, she was upset at his passing. In terms of the nature of the offence impacting on Ms. G-M.’s ability to testify on her own, Mr. Land is not charged with an offence against Ms. G-M. Ms. G-M.’s physical and emotional integrity was not challenged by Mr. Land as a result of the offence with which he stands charged, or any other offence. Ms. G-M. did not witness the offence in question.

[ 15 ] During questioning at the Preliminary Inquiry, J.G-M. testified that she had only known Toby Land for approximately two months prior to Mr. Doyon’s death. Initially, Mr. Land had been very friendly with her; however, when he learned she was only 14 years old, he tried to dissuade her from being at the apartment and would ask her if she did not have somewhere else she could stay. In her statement, Ms. G-M. described Mr. Land as giving her a negative look on the day of Mr. Doyon’s death, when she left the apartment building; however, when questioned at the Preliminary Inquiry, she agreed that Mr. Land had his head down but his eyes raised and looking at her. That was the extent of the look he had given her. She acknowledged that Mr. Land had never threatened her and had never been aggressive with her.

[ 16 ] The Court does note that J.G-M. was able to testify for a full day at the Preliminary Inquiry. She may have been assisted in this regard by the presence of her grandmother as a support person; however, there is no evidence in this regard. In fact, the only evidence was that the relationship between Ms. G-M. and her grandmother had rocky moments when Ms. G-M. felt the need – even as a 14-year old – to leave her grandmother’s home from time to time and live on the street or stay with friends in order to give her grandmother, and herself, a break.

[ 17 ] The Court has not been pointed to any other factors that may be relevant to this analysis under ss. 486.1(2) and (3).

Disposition

[ 18 ] Taking all of these factors into account, I am not of the opinion that an order under s. 486.1(2) is necessary to obtain a full and candid account from J.G-M. of what she heard or observed on May 4, 2009 or on any earlier day that might be of relevance in this case. In that I have arrived at this conclusion, it is unnecessary for me to determine whether any of the evidence which Ms. G-M. could give of relevance in this case relates to “the acts complained of”, as that term is understood under s. 486.1(2).

[ 19 ] The Application in regard to Thérèse Germain and Kim Haines under s. 486.1(1) is granted. The Application in regard to J.G-M. under both ss. 486.1(1) and (2) is denied.

Aitken J.

Released: July 10, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Applicant – and – TOBY LITTLE OTTER LAND Respondent pre-trial ruling #2 regarding SUPPORT PERSONS UNDER S. 486.1 Aitken J.

Released: July 10, 2012