ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1880/12

DATE: 2013-01-24

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

C.D. and G.T.

Respondents

L. Scaringi, for the Crown

A. Burton, for the Respondent, C.D.

L. Gross, for the Respondent G.T.

HEARD: January 14, 2013

THE HONOURABLE MR. JUSTICE P. B. HAMBLY

REASONS FOR JUDGMENT

The Charges and the Application

[1] C.D. (C.D.) and G.T. (G.T.) are charged jointly with two counts of sexual interference and two counts of sexual assault between September 1, 2010 and October 31, 2011 in Toronto and in Niagara Falls on S.O.1 (S.O.1). C.D. is charged alone with one count of sexual interference and two counts of sexual assault on S.O.1 between June 1, 2011 and August 31, 2011 in Toronto. He is also charged with assault on S.O.1 on October 29, 2011 and on October 31, 2011 in Niagara Falls. S.O.1 was between seven and eight years old when these events were alleged to have happened. The two accused are to be tried before a court composed of a judge and jury, presided over by me, commencing on June 10, 2013.

[2] The crown has brought an application to have S.O.1 testify from a room outside the courtroom via closed-circuit TV with only S.O.1 and a support person in the room, pursuant to section 486.2 (1) of the Criminal Code. The crown may seek to have S.O.1’s evidence introduced by way of a video recording made of an interview of her by Sgt. G. Beaulieu on October 31, 2011, pursuant to s. 715.1 of the Criminal Code. Pursuant to section 486.2 (1) of the Criminal Code, on application by the crown, the court is required to make an order permitting a witness who is under 18 to testify from a room outside of the courtroom unless the court is of the view that the order would interfere with the proper administration of justice. The accused do not oppose an order that S.O.1 testify from a room outside of the courtroom via closed-circuit TV and that she be accompanied by a support person. They take the position that counsel for the accused and for the crown should be in the room when S.O.1 testifies or is asked to adopt the video recording and that counsel for the accused should be permitted to cross-examine her in the room in her physical presence. On January 15, 2013, I allowed the crown’s application with written reasons to follow. These are my reasons.

The Allegations

[3] From about 2002, C.D. and S.O.2 (S.O.2) were involved in an intimate relationship. S.O.1 was born from this relationship in 2003. They lived in many cities in Canada including Yellowknife, Ottawa, Montreal, Toronto and Niagara Falls. In about 2006 G.T. began living with them. C.D. became sexually involved with G.T. He and S.O.2 became estranged.

[4] On October 31, 2011, C.D., G.T. and S.O.1 were at a residence in Niagara Falls. A neighbor reported a concern about the way S.O.1 was being treated to the police. On that day the police arrested S.O.2 and brought her and S.O.1 to the police station. Sergeant Beaulieu of the Niagara Regional Police Force interviewed S.O.1. He videotaped the interview. The police released S.O.2. On November 1, 2011 the police arrested C.D. and G.T. on the charges before the court. C.D. has been in custody since that date. G.T. was released.

Joint Charges

1. Toronto Counts of Sexual Interference And Sexual Assault

[5] Between June 1 and August 31, 2011, at a residence in Toronto, C.D. removed S.O.1’s clothing. He rubbed his erect penis across her face, while G.T. performed cunnilingus on her.

2. Niagara Falls Counts of Sexual Interference and Sexual Assault

[6] Between June 1, 2010 and December 31, 2010 at a residence in Niagara Falls, S.O.1 removed her clothing, on C.D.’s instructions. He digitally penetrated S.O.1’s vagina and G.T. performed cunnilingus on her.

C.D. Alone

3. Toronto Charges of Sexual Assault and Sexual Interference

[7] Between June 1 and August 31, 2011, C.D. and G.T. were at their residence in Toronto with S.O.1. C.D. and G.T. removed their clothing. C.D. instructed S.O.1 to remove her clothing, which she did. On the instructions of C.D., S.O.1 stroked and masturbated his penis. C.D. masturbated himself until he ejaculated. He told S.O.1 that this is how babies are made. G.T. watched this take place.

4. Niagara Falls Charges of Assault

[8] 1. On October 29, 2011, C.D. put his hand over S.O.1’s mouth and nose to stop her from coughing. He struck her on the back of the head. He grabbed her and threw her on the ground.

2. On October 31, 2011, at a residence in Niagara Falls, C.D., G.T., S.O.2 and S.O.1 were present. C.D. and S.O.2 were arguing. S.O.1 spoke to S.O.2. C.D. struck S.O.1 on the back of the head, pinched her in the forearm and swore at her.

Analysis

[9] Where witnesses, counsel and the accused are positioned, in my view, is solely in the discretion of the trial judge to be determined in the interests of a fair trial. (see R. v. Lalonde (1999), 1999 2388 (ON CA), 138 C.C.C. (3d) 441 at para. 19 and R. v. Spagnolli, [2011] O.J. No. 3548 at para. 2)

[10] In R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475 the accused was charged with sexual interference on a 12 year old boy. The crown sought to have the child testify behind a screen pursuant to s. 486 (2.1) of the Criminal Code. This procedure permitted the accused to see the witness but the witness could not see the accused. This section of the Criminal Code at the time stated the following:

486 (2.1) Notwithstanding section 650, where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273 and the complainant is, at the time of the trial or preliminary inquiry, under the age of eighteen years, the presiding judge or justice, as the case may be, may order that the complainant testify outside the court room or behind a screen or other device that would allow the complainant not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant.

[11] The crown called the evidence of a child psychologist, who testified that the complainant was experiencing a great deal of fear about testifying in court. The trial judge held that the evidence satisfied the criterion of the “exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant” and allowed the application. The accused was convicted. He appealed on the grounds that he had a right guaranteed by sections 7 and 11(d) of the Charter to confront the complainant in court face to face. The Supreme Court of Canada, in the judgment of Justice L’Heureux Dube, held that the confrontation face to face by the accused of the complainant was not a principle of fundamental justice guaranteed by s. 7 and was not required by s. 11(d) for the accused to have a fair trial. The purpose of a trial is to get at the truth. Face to face confrontation of a child by the accused must give way to this objective.

[12] She stated the following:

20 In my view, the main objective pursued by the legislative enactment presently challenged is to better "get at the truth", by recognizing that a young child abuse victim's evidence may, in certain circumstances, be facilitated if the child is able to focus his or her attention on giving testimony, rather than experiencing difficulties in facing the accused. Section 486(2.1) of the Criminal Code recognizes that a child may react negatively to a face-to-face confrontation and, as a result, special procedures may be required to alleviate these concerns. Professor Nicholas Bala, in "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System", in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice (1993), 232, writes in this connection (at p. 248):

Parliament has recognized that victims of child sexual abuse may be traumatized by the process of testifying in court. Children are invariably more than simply nervous about being in court; they often are afraid of facing their assailant again. There have, for example, been cases involving children so frightened of the accused while testifying that they were physically ill on the witness stand and the prosecution had to be stopped, or so frightened that they were unable to answer questions.

21 The use of the words "full and candid account of the acts complained of" in s. 486(2.1) of the Criminal Code cannot express more clearly what this section purports to achieve. That this is a valid purpose is beyond doubt. The only question is whether the effect of s. 486(2.1) deprives an accused of his or her right to a full defense and fair trial. In my view, it does not.

[13] In R. v. L. (D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419, the accused, who was the female child complainant’s grandfather, was charged with sexually assaulting her by fondling her. The trial judge permitted the crown to introduce the child’s evidence by a video tape pursuant to s. 715.1 of the Criminal Code. The accused was convicted. At the time the section stated the following:

715.1 In any proceeding relating to an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273, in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape.

[14] The Supreme Court of Canada, in the judgment of Justice L’Heureux Dube, in a decision which was released at the same time as Levogiannis, held that the section did not violate sections 7 and 11(d) of the Charter. She disagreed with Justice Doherty, who expressed the opinion in R. v. Toten (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5, that the purpose of the section was not to protect children. She emphasized the trauma suffered by children who are victims of sexual abuse and the concern that they not be “double victimized” by the trauma of testifying. She stated the following:

36 … In our quest for the truth, if the defendant's rights must not be infringed, neither must the complainant be further victimized. Children require special treatment to facilitate the attainment of truth in a judicial proceeding in which they are involved. These special requirements stem not so much from any disability of the child witness, but from the fact that our ordinary criminal and courtroom procedures have been developed in a time when the participation of children in criminal justice proceedings was neither contemplated nor plausible. A "court system, established with adult defendants and witnesses in mind, does not easily accommodate children's special needs" …. Children have suffered and continue to suffer immense hardship from the court process. I do not believe that, when drafting s. 715.1, the legislators could have ignored detailed accounts, such as set out by Spencer and Flin, supra, at p. 72:

• I was accused of lying, fabrication and made to feel as though I was the accused and not an innocent nine-year-old victim....The defence lawyer treated me roughly as though I was 19 instead of nine-year-old, shouting at me, muddling me, confusing me. I hated him and still do for the way he treated me. The trouble is that after 23 years I still have horrible dreams now and then -- not about the incident at the cinema [the assault], but of the court appearance I made.

• At the age of seven I was indecently assaulted by a lad who was known to our family. Trying to explain to my parents was hard but to stand up in court and explain was impossible. He sat there watching me all the time. Of course he got away with it like so many do.

It has also been observed that court proceedings often have severe and dire consequences on a child's ability to get on with her or his daily life. In a significant number of cases, the fear of contaminating required testimony has forced the delay of needed therapy and counselling …. Finally, a research paradigm designed to calculate the incidence of stress suffered by child witnesses revealed many instances of nervous behaviour by children testifying in court. Children called to testify demonstrated great nervousness through acts such as twisting hair, attempting to leave the witness stand or the courtroom before the end of the session and in one instance crying …. (citations ommitted)

[15] With the consent of the crown, I viewed the room where the child will testify. It is a small room. She will testify at the head of a table beside a support person. What the defence proposes is that the two defence lawyers and the crown sit at the table across from the child while she testifies. They would of course be dressed in their black gowns. Although the child could not see the accused because he would be in the court room with the judge and the jury, in my view, confronting three lawyers in black gowns in close proximity to her would be equally intimidating to the child as being required to testify in the presence of the accused. It has the potential to thwart the truth seeking function of the trial which the Supreme Court of Canada held must take priority over face to face confrontation of the accused and the complainant.

[16] It must also be kept in mind that parliament has strengthened the section. It now reads as follows:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, 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, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

[17] The restriction to sexual offences has been removed. Now, in all proceedings on application of the crown, the court is required to order that a witness under the age of 18 testify behind a screen or outside the court room “unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice”. The requirement in the previous section that the crown introduce evidence to satisfy the court that the standard has been met is removed. There is no suggestion that having the complainant testify from a room outside the court room with no one but her and a support person would interfere with the proper administration of justice. Section 715.1 has also been strengthened by making it apply to all offences.

Conclusion

[18] For these reason the application of the crown is allowed. The complainant will testify in a room outside of the court room via closed circuit television with only a support person in the room with her.

P.B. Hambly J.

Released: January 24, 2013

COURT FILE NO.: 1880/12

DATE: 2013-01-24

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

C.D. and G.T.

REASONS FOR JUDGMENT

P.B. Hambly J.

Released: January 24, 2013