J.M. v. Clouthier et al.
[Indexed as: M. (J.) v. Clouthier]
Ontario Reports
Ontario Superior Court of Justice,
Hennessy J.
January 15, 2013
113 O.R. (3d) 624 | 2013 ONSC 221
Case Summary
Civil procedure — Discovery — Examination for discovery — Videotaping examination — Plaintiff suing defendant for damages for historic sexual assault that took place when defendant was parish priest — Defendant elderly and suffering from high blood pressure and diabetes — Plaintiff permitted to videotape defendant's examination for [page625] discovery and to tender recordings as evidence at trial if defendant was unable to appear — Higher than usual risk existing in circumstances of this case that defendant would be unable or unwilling to appear at trial — Videotaping of examination for discovery and tendering of videotape at trial causing no real prejudice to defendant.
The defendant C was convicted of historic sexual assaults on the plaintiff and others that took place when C was a parish priest. The plaintiff brought a civil action against C and the diocese. C would be eligible for parole well before a trial was scheduled. He was 71 years old and suffered from diabetes and high blood pressure. The plaintiff brought a motion pursuant to rule 34.19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permitting him to video and audio record C's examination for discovery and to tender the recordings as evidence at trial in the event that C was unable to appear at trial.
Held, the motion should be granted.
Given C's age and health status, there was a higher risk than average that he would be unavailable at trial. There was also a risk that he might absent himself from the trial intentionally. The video recording of his examination for discovery would not cause him any real prejudice or inconvenience; nor would he be prejudiced if a video recording of his discovery was available to supplement a transcript at trial. On the other hand, the plaintiff might be prejudiced if he had to rely on a printed transcript of C's examination for discovery. In the circumstances, there was no good reason to deny the trier of fact the best record of the evidence.
Cases referred to
Midland Resources Holding Ltd. v. Shtaif (2009), 2009 67669 (ON SC), 99 O.R. (3d) 550, [2009] O.J. No. 5216, 87 C.P.C. (6th) 256 (S.C.J.), consd
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 31, 31.11(6), 34.19, 34.19(1), 36, 36.01, 36.04(4)
MOTION for an order permitting the plaintiff to videotape the defendant's examination for discovery.
Robert P. Talach, for plaintiff.
Michael C. Birnie, for respondent.
[1] HENNESSY J.: — The plaintiff makes this motion for an order pursuant to rule 34.19 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] permitting them to video and audio record the examination on discovery of the defendant and in the event that the defendant Bernard Clouthier is unable to appear at trial that the recordings be tendered as evidence.
[2] On November 8, 2012, I released an order permitting the video recording of the examination for discovery. These are my reasons for that ruling.
Background
[3] The defendant Bernard Clouthier was convicted of four counts of historical sexual assault. He was sentenced to five [page626] years in the penitentiary. The sexual assaults took place when he was a parish priest in the Roman Catholic Diocese of Sault Ste. Marie. He did not testify at his trial. His mandatory release date is October 2014. The complainants in that trial are the plaintiffs in these actions.
[4] There is a parole hearing scheduled in January 2013. The examinations for discovery were scheduled to take place in November 2012 after an earlier scheduled date was adjourned. There has been some difficulty in scheduling the examinations.
[5] Bernard Clouthier is 71 years old. He has been a diabetic for approximately 30 years. His diabetes is controlled by diet. He was diagnosed with high blood pressure in 2007, which is controlled with daily medication.
[6] The diocese is also a defendant and did not attend on this motion
Rule 36 Taking Evidence Before Trial
[7] Because Rule 36 is central to the discussion of this motion, I make the following brief comments on it.
[8] Traditionally known as taking evidence de bene esse, rule 36.01 allows for the taking of evidence before trial for the purpose of preserving the evidence and having the testimony available to be tendered as evidence at the trial when it appears that it may become unavailable because of the incapacity, absence or possible death of a witness. A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
[9] The evidence obtained pursuant to a Rule 36 order may be admitted if the trial judge permits and may be admitted as transcript, video or audio record (rule 36.04(4)).
[10] In exercising its discretion under rule 36.04(4) to use the evidence obtained before trial, the court shall take into account
(a) whether the party is unavailable to testify by reason of death, infirmity or sickness;
(b) whether the party ought to give evidence in person at the trial; and
(c) any other relevant consideration.
[11] Examinations under Rule 36 presume from the outset that the recorded examination before trial will be tendered at trial. Rule 36 permits that a videotape is one of the ways to put that evidence before the court. [page627]
Rule 34.19
[12] On the other hand, rule 34.19 allows the recording by videotape of pre-trial examinations including examinations on discovery "by order of the court" for unspecified purposes in unspecified circumstances. Rule 34.19(1) reads as follows:
34.19(1) On consent of the parties or by order of the court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the court along with the transcript.
[13] In this case, the plaintiff seeks to preserve the examination for discovery on video tape in the event that the defendant for whatever reason is not available to testify at trial.
[14] An order under rule 34.19 does not provide for a cross-examination or re-examination as does Rule 36, which is based only on the likelihood that the person will not be available for trial.
Position of the Parties
[15] At the time this motion was heard, the defendant was still incarcerated. The plaintiff argues that by virtue of age, health status, environment or by intention, the defendant is at risk of being unable to give evidence at trial, and that should this defendant not be present at trial, then an video and audio recording of the examination would be the best evidence to present at trial, especially when compared to the alternative, which would be a printed transcript.
[16] The plaintiff relies on Rule 31. Rule 31.11(6) permits a party with leave of the trial judge to read into evidence all or part of the evidence given on examination for discovery as the evidence of [the] person examined, to the extent that it would be admissible if the person were testifying in court.
[17] The plaintiff argues that a video recording of the examination for discovery would be better evidence than reading in the "cold pages of a transcript" should the defendant not attend trial. The plaintiff argues that the age and health status of the defendant, and the risk that he would intentionally not attend trial, weigh in favour of having the best evidence from the examination for discovery available if it must be used. The plaintiff notes that the defendant may find it convenient to change his place of residence, now that he is a convicted sex offender. Counsel for the plaintiff notes that there is still a close relationship between Clouthier and the diocese and speculates that the defendant Clouthier's absence would be to the advantage of the diocese, as he would have knowledge of facts which may be persuasive on the question of liability of the diocese, i.e., what and [page628] when did the diocese know about the conduct of the defendant Clouthier. Clouthier will be eligible for parole well before a trial is scheduled.
[18] The plaintiff argues that the video recording of the examination is minimally intrusive and will not cause any prejudice to the defendant Clouthier.
[19] The defendant argues that he has not had any serious health problems in the past and does not currently have any serious health problems. The defendant works five days per week in one of the employment programs in the federal institution where he is incarcerated. The defendant further argues that in the absence of criteria, either in the Rules or in case law for the granting of an order for video recording an examination, the court should look to the issue of convenience and prejudice to the defendant.
[20] Counsel for the defendant submits that the preparation and conduct of a video recorded examination would be significantly different than an examination that only resulted in a printed transcript. He argued that there would be a complete change in the dynamic of an examination which is video recorded for possible showing to a jury compared to an examination that was simply audio recorded. Therefore, he argued that the preparation for a video recorded examination will necessarily be more extensive and of a different character than the usual preparation for an audio recorded examination. These differences, argues counsel, will take more time and incur more cost to the defendant.
[21] The defendant also argues that there are other technical problems which may arise should it be necessary for whatever reason to put excerpts of the examination to a jury. While it is easy to read in excerpts of a transcript, he argues that editing and splicing a video tape would be difficult and cause problems which may be prejudicial to the defendant.
[22] The defendant argues that if the plaintiff has legitimate concerns about the health or ability of the defendant to give evidence at trial, then he should seek an order pursuant to Rule 36, which would allow the taking of evidence before trial, to be tendered at trial. In response, the plaintiff argues that to conduct a Rule 36 examination of the plaintiff now for trial would deprive the plaintiff of an opportunity to conduct an examination for discovery of the defendant and secondly would not allow the plaintiff to fine tune his cross-examination of the defendant based on circumstances as they evolved before trial.
[23] The defendant argues that videotaping the examination creates a serious inconvenience to him as it increases the time [page629] and cost of preparation, and creates the risk of technical problems that may arise if and when the video is used in court.
Discussion
[24] With respect to the argument regarding possible technical issues which may arise if the video recording is admitted by the trial judge, those matters would best be left to the trial judge if and when the plaintiff seeks to introduce the video recording. At this point, these unspecified technical problems are speculative and based on the use to be made of this video recording and are not part of the consideration of whether to permit the video recording.
[25] On the issue of convenience, I do not accept that the preparation for and the conduct of the examination will entail great additional work or cost. One can imagine that there are other reasons why one might want to videotape an examination, i.e., the party examining is not available to personally attend the examination and wants to review the examination with counsel when it is more convenient. Or there might be photos, charts or other demonstrative evidence that will be discussed at the examination that are best shown by videotape rather than audio tape. In addition to the circumstances of this case, other reasons will undoubtedly arise where one party will show how helpful it would be to the parties or the trier of fact to have a video recording in addition to the audio recording of an examination for discovery. In those cases, no one would argue that the extra time and preparation should defeat the better recording of the examination.
[26] To the extent that new technology is available to capture the evidence, it may take some adaptation on the part of all participants in the justice system. A video recording is admittedly a different method of recording an examination for discovery. However, given the extensive use of video cameras in modern life and communication, I cannot say that it is so different that it requires much additional preparation. In the area of criminal law, courts and juries have been watching video interviews for a decade. There is nothing magic about them. Of course, counsel will give some additional advice to his client prior to the examination that is specifically relevant to the video recording. I cannot see how this changes the preparation for or conduct of the examination in any meaningful way, presumably counsel can come to some agreement with respect to going on and off the video record at certain break points in the examination. Experienced counsel do as much when there is audio recording and I [page630] see no reason why that sort of collegial problem-solving would not be useful in the case of a video recorded examination.
[27] Considering all of the arguments made on behalf of the defendant, I do not agree that the video recording of an examination for discovery would cause any real prejudice or inconvenience. The placement of a video camera in the room where any examination is taking place need not be intrusive. More and more people conduct business and personal calls with the addition of small unobtrusive video cameras. The introduction of this technology into the equation in and of itself poses no prejudice.
[28] Unfortunately, this Rule has not had the benefit of much judicial analysis. The decision of Newbould J. in Midland Resources Holding Ltd. v. Shtaif (2009), 2009 67669 (ON SC), 99 O.R. (3d) 550, [2009] O.J. No. 5216 (S.C.J.) permitted video conferencing of an examination where the party being examined was in Moscow and the lawyer conducting the examination was in Toronto. The issue before him was the time, expense and convenience of international travel as it relates to having parties and counsel convene in a single location. However, Newbould J. must have presumed that all or portions of the examination as recorded on video could ultimately be used at trial when he stated, at para. 27: "A videotape from a video conference is of more assistance to the trier of fact than the cold pages of a transcript." This statement underscores the fact that a video recording is the preferable and better evidence when compared to the "cold pages of a transcript". In this respect, there is prejudice to the plaintiff if he is left to bring important evidence through the reading of a transcript, which may be lengthy when another mode of capturing and presenting the evidence is available.
[29] The plaintiff urges me to adopt the factors set out in Rule 36 as analogous grounds for granting leave to video record the examination. In response, the defendant argues that Rule 34 should not be used as s. 36 "lite". He argued that if the grounds existed for a order pursuant to Rule 36, the evidence would be taken as if it was to be the trial evidence, with full examination, cross-examination and re-examination so that in the event the defendant did not attend trial, the best and tested evidence could be provided to the trier of fact.
[30] The plaintiff did not bring a Rule 36 motion primarily because of the adverse effect this order would have on important advocacy opportunities. He argues that it would be reckless of him to finalize his examination of the defendant so early in the process and without the benefit of an examination for discovery. The claim against the diocese is based on their interventions with the plaintiffs, some of which occurred in the presence of the [page631] plaintiff. These interventions form the basis of the claim for punitive damages. The plaintiffs have not had the opportunity to hear the defendant testify on any of these points.
[31] Rule 36 is primarily a rule permitting a full examination of a witness outside of and prior to the trial process. The fact that rule 36.04(4) permits that examination to be introduced by video recording simply underscores the utility of a video recording for the trier of fact. To the extent an examination for discovery may have to be used at trial, there is no discernable difference between it and other preserved evidence that would justify a ban on using this technology.
[32] I accept that there is a higher risk than average of this plaintiff's unavailability. His age and health status suggests that he will be at risk of adverse health conditions sooner than later. The risks of high blood pressure and diabetes are well known and particularly well covered in the popular media these days. In addition to what I may call general knowledge about these conditions, the plaintiff filed material found on the Internet from legitimate and credible sources underscoring the serious health risks of both of these conditions. The evidence put forward was completely adequate for the purpose for which it was intended. I do not accept the defendant's argument that even a consideration of this evidence opens the floodgate to possible expert evidence on health risk factors.
[33] Counsel for the defendant minimizes these health risks and submitted that the defendant currently appears to be in fine form, independent and participating in employment activity. However, should anything happen to the defendant that makes him unavailable for trial, the only evidence will be the examination for discovery in whatever form it exists.
[34] The risk that the defendant Clouthier may intentionally be absent from the trial is also present. His local reputation suffered dramatically and it is unlikely that he would be welcome in any pastoral role even if the diocese wished to assign him. It would be easy to understand how and why a person in his circumstances might wish to leave the jurisdiction.
[35] It is a known fact and I accept that different people learn and absorb information differently. We permit demonstrative aids, photos, written jury charges, charts and graphs, all to supplement oral evidence. For some people, the reading-in of a transcript of any length may be very difficult to absorb. This kind of person may retain the information better if they could listen and watch the deponent. For others, a reading-in may be sufficient. I can see no reason to deny the trier of fact the better evidence where it causes no prejudice to the party being video recorded. [page632]
[36] There are no limiting factors set out in the Rules or any case law on the issue of permitting video recording of examinations for discovery. I can see no cogent argument that making a video recording of an examination would cause any prejudice to the defendant either from a cost or time perspective. Nor is there any compelling argument that the defendant would be prejudiced if at trial a video recording of his discovery was available to supplement a transcript. The act of video recording is minimally intrusive. On the other hand, should the plaintiff be required to rely on the evidence from the examination for discovery, he may be prejudiced if he had to rely on a printed transcript in lieu of a video recording. There is no good reason to deny the trier of fact the best record of the evidence.
Motion granted.
End of Document