Adeyemi Ogunbitan, 2014 ONSC 2324

COURT FILE NO.: CRIM 0062-14
DATE: 20140414

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Steven Browne, Adrian Williams, Amal Greensword & Adeyemi Ogunbitan

Applicants

A. Cornelius for the Crown

M. Moon for Amal Greensword and Adrian Williams for the Applicant
M. Addie for Steven Browne

HEARD: April 3, 2014

RULING ON AMAL GREENSWORD AND ADRIAN WILLIAMS' MANDAMUS WITH CERTIORARI IN AID APPLICATION

Ricchetti, J.:

THE BACKGROUND

[1] The Defendants are charged with the first degree murder of Dwayne Thompson on November 1, 2012.

[2] The Crown's theory is that Mr. Thompson was lured to an apartment complex for a drug deal but the true purpose was to allow the accused to shoot and kill him.

[3] Margaret Warner was with Mr. Thompson when three men appeared and confronted Mr. Thompson. Ms. Warner became scared and ran off. Ms. Warner heard shots and saw Mr. Thompson's body fall to the ground.

[4] Sometime later, Ms. Warner provided a description of the men during her videotaped statements to the police. Ms. Warner had not previously met the three men who confronted Mr. Thompson.

[5] Ms. Warner did not identify any of the accused during the photographic lineups.

[6] During the course of the preliminary hearing before Justice J. J. Keaney, which had commenced on January 6, 2014, the Crown brought an application to have Ms. Warner testify by closed circuit television (CCTV) from another room in the courthouse. The Crown called, Officer Colagiovanni, a Peel police officer, to testify at the voir dire on the Crown's s. 486.2(2) application. Some of the Defendants opposed the Crown application.

[7] Justice Keaney released his reasons on the Crown s. 486.2(2) application on January 27, 2014. Justice Keeney stated:

I accept the officer's evidence as to Ms. Warner's concerns and reluctance to testify. As previously stated, not all her concerns can be remedied. I am satisfied that in the absence of taking any step there is a risk the Court could not obtain a full and candid account from her of the acts complained of. I believe the provision of closed circuit T.V. or a screen is necessary to achieve that end.

(emphasis added)

[8] Ms. Warner then proceeded to testify via CCTV. Her evidence in-chief took approximately one day. While the Defence counsel expressed some concern amongst themselves regarding Ms. Warner's appearance, no issue was raised on the record prior to or during Ms. Warner’s examination- in-chief and no application was brought until after the Crown had concluded its examination-in-chief. Subsequently, the Defence brought an application to have Ms. Warner remove her "wig" and "glasses" prior to the commencement of the cross- examination. Justice Keaney advised he would not make the order requested. Justice Keaney provided his written reasons on this application on January 29, 2014. His reasons include the following:

Her appearance that day [during Ms. Warner's examination in chief] was somewhat different from how she appeared on a surveillance video taken on the night in question filed as an exhibit at trial.

Her hair was longer, although not dissimilar in colour. It is suggested by the opposing Defence Counsel that this is a wig.

She wore glasses to testify, not seen on the surveillance video.

In his argument, Mr. Moon, counsel for the accused Greensword, argued that these were sunglasses that prevented him seeing her eyes. I have looked closely at her appearance through the closed circuit T.V. I do not agree that these are sunglasses. They are glasses with, at best, a very slight tint to them, as are seen quite commonly.

In her examination in chief, she did not identify any of the accused.

Moving counsel submits that solely on the basis of the witness's professed apprehension at testifying, I should conclude that any change in her appearance now is solely an effort to not appear as her true self before the Court.

I cannot accept that submission on the basis as to what has been put before me. Her appearance is not dramatically changed. The colour of the wig is not dramatically difference from seen on the closed circuit video. The glasses do not shield the eyes from scrutiny.

In the exercise of discretion, I do not conclude that the two defendants applicants have made out a case that any of the accused rights on preliminary inquiry are infringed or disadvantaged. I do not accept that removal of the glasses or the wig (if that is what it is) will serve to further the fulfillment of the accused' purposes. I am not persuaded that the accused rights to make a full answer and defence is in any way impaired.

[9] Justice Keaney dismissed the application.

[10] The preliminary inquiry is ongoing but Ms. Warner's evidence has been adjourned until after this application is heard and decided.

THE APPLICATION

[11] Essentially, the Applicants submit that the Preliminary Inquiry Justice committed two reviewable errors:

a) making an order permitting Ms. Warner to testify by way of CCTV without a proper evidentiary foundation to have made the order; and

b) refusing to hold a voir dire with respect to a "wig" and "glasses" worn by Ms. Warner while testifying by CCTV from another room.

THE DEFENCE POSITION

[12] Adeyemi Ogunbitan does not support the position of Mr. Williams and Mr. Greensword in this application.

[13] Steven Browne's counsel adopted the submissions of Mr. Williams and Mr. Greensword's counsel on this application.

THE S. 486.2(2) APPLICATION

[14] The Applicants summarizes its position on this part of the application as:

In sum, Justice Keaney failed to require the Crown to call Warner to give evidence viva voce to justify its application. The only supposed evidence before Keeney J. was untested, unconfirmed and inadmissible hearsay from Colagiovanni. (para. 24 of the Applicant's factum)

[15] The Applicants submit Keaney J. failed to consider that Ms. Warner contacted CrimeStoppers, gave police videotaped statements, and did not express any concerns during her police interviews. The Applicants submit this evidence is suggestive that it was not necessary Ms. Warner testify by CCTV.

THE "WIG" AND "GLASSES" APPLICATION

[16] The Applicants submit that Keaney J. should have held a voir dire to determine why Ms. Warner was wearing the “wigs” and “glasses” and whether any of her rights were engaged to justified the "wigs" and "glasses". Keaney J. refused.

THE LAW

Part 1 - Are Errors of law on the face of the record reviewable?

The Positions

[17] The Applicants submit that relief, by way of certiorari, can be granted if the Applicants establish Justice Keaney committed "an error or jurisdiction or an error of law on the face of the record". The Applicants submit relief is available for an error of law because, unlike a certiorari application to review a committal or discharge, these rulings by Keaney J. are a "final determination of an issue". (see paras. 40-41 of the Applicant's factum)

[18] The Applicants rely on R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331 at paras. 57-58.

[19] The Crown submits that the scope of the review is limited to where the preliminary inquiry judge has made a jurisdictional error.

Analysis

[20] I do not accept the Applicant's position that, in these circumstances, certiorari is available to review errors of law on the face of the record.

i) Fundamental Approach to the Review of Preliminary Inquiries

[21] I do not accept that a committal or discharge at a preliminary inquiry, the very raison d'etre of a preliminary inquiry, is an interlocutory decision whereas, as suggested by the Applicants, a decision or ruling on evidentiary or procedural matters at the preliminary inquiry are final decisions resulting in a broader scope of review by way of certiorari. This makes little sense.

[22] In Cunningham supra, Rothstein J. explained why a reviewing judge must be satisfied the preliminary inquiry judge exceeded his jurisdiction on a certiorari application:

[E]xcess of jurisdiction is the standard for a preliminary inquiry judge’s decision to either commit an accused to trial or issue a discharge. This high threshold for review is premised on the fact that a preliminary inquiry does not result in a final determination of guilt or innocence; therefore, there is less need for broad supervisory remedies. (para. 57)

ii) Procedural and Evidentiary Rulings by a Preliminary Inquiry Judge have consistently been held not reviewable by way of Certiorari

[23] As a general proposition of law, the Supreme Court has repeated time and again, that an evidentiary rulings, constituting an error of law by the preliminary inquiry judge, are not a reviewable jurisdictional error by way of certiorari. The Supreme Court repeated this in R. v. Deschamplain 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17:

The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice … constitutes an error of law, not a jurisdictional error. Errors of law are not reviewable by way of certiorari.

See also R. v. Dubois 1986 60 (SCC), [1986] S.C.J. No. 21; R. v. Skogman 1984 22 (SCC), [1984] 2 S.C.R. 93; and R. v. Russel [1991] O.J. No. 4862 (Ont. C.A.).

[24] Focusing on evidentiary rulings at a preliminary inquiry, evidentiary rulings by the preliminary inquiry judge are not jurisdictional errors: Attorney General for Quebec v. Cohen, 1979 223 (SCC), [1979] 2 S.C.R. 305, at pp. 307-308.

[25] Chief Justice Laskin in R. v. Forsythe, (1980) 1980 15 (SCC), 2 S.C.R. 268, dealt with the issue whether certiorari was available to quash a committal for trial where defence questions had been disallowed of the complainant by the preliminary inquiry judge. The Supreme Court held that there would be very few situations where a loss of jurisdiction will occur during a preliminary inquiry. Chief Justice Laskin stated as follows:

In speaking of lack of jurisdiction, this Court was not referring to lack of initial jurisdiction of a judge or a magistrate to enter upon a preliminary inquiry. This is hardly a likelihood. The concern rather was with the loss of this initial jurisdiction and, in my opinion, the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed. However, jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code. … In the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses. Mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence would not, in my view, amount to a jurisdictional error. However, the judge or magistrate who presides at a preliminary inquiry has an obligation to obey the jurisdictional prescriptions of s. 475 of the Criminal Code.

See also R. v. Dubois 1986 60 (SCC), [1986] 1 S.C.R. 366 at para 19.

iii) Errors of law at a preliminary inquiry are only reviewable by way of certiorari where third party rights are affected

[26] The other difficulty is that the Applicants fail to recognize the distinction in the authorities that an "error of law on the face of the record” at a preliminary inquiry is reviewable by way of certiorari only where third parties rights are involved.

[27] This distinction was clearly recognized by Doherty J.A. in R. v. N.S., Doherty J.A. stated:

[23] Where an accused or the Crown seeks to review, by way of extraordinary remedies, decisions made at the preliminary inquiry, the moving party must normally demonstrate jurisdictional error: e.g., see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, [2004] S.C.J. No. 73; Québec (Attorney General) v. Cohen, 1979 223 (SCC), [1979] 2 S.C.R. 305, [1979] S.C.J. No. 50. However, where the moving party on the extraordinary remedy application is a "third party", that is a party other than the accused or the Crown, and the challenged order finally decides the rights of the third party, extraordinary remedy relief will lie on the more traditional grounds of both jurisdictional error and error of law on the face of the record: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 254 C.C.C. (3d) 1, at paras. 57-58; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, at pp. 864-67 S.C.R.

(emphasis added)

[28] At best, a procedural ruling, such as whether a voir dire should be held, is no different than an evidentiary ruling. Perhaps the procedural ruling might even be an error of law, but as the case law clearly states, an error of law committed by a preliminary inquiry judge is not reviewable by certiorari since it is not a jurisdictional error.

[29] Let me distinguish the cases referred to by the Applicants:

a) R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331 - at issue was an application by the defence lawyer to get off the record. The lawyer's interests were engaged;

b) Dubois v. R., (1986), 1986 60 (SCC), 25 C.C. C. (3d) 221 (S.C.C.) - this case does not stand for the proposition suggested by the Applicants. Justice Estey stated the following:

9. The starting point in the analysis of the position of the preliminary hearing judge is found in the judgment of Judson J. in Patterson v. The Queen, supra, where he wrote at p. 411:

I intend to confine these reasons within the very narrow issues raised by the case and to repeat what has been emphasized so often that if it is sought to review a committal for trial, there is only one ground for action by the reviewing Court and that is lack of jurisdiction.

This was a certiorari proceeding in which it was asserted that the committing judge, by declining to order the production of a statement given by a Crown witness to the police, had thereby committed an error of law reviewable by certiorari. Although Spence J. dissented, he agreed that certiorari would not lie to correct errors "made by a magistrate in the performance of his duties" (p. 419). Judson J.'s statement of the law has been specifically confirmed in three subsequent decisions [page373] of this Court (Cohen, Forsythe and Skogman, supra) and must be taken as settled.

c) R. v. N.S. (2010), 2010 ONCA 670, 262 C.C.C.(3d) 4 (Ont. C.A.) - this involved the witness' Charter rights.

d) R. v. J. M. 2012 ONSC 2910, [2012] O.J. No. 2199 (S.C.J.) – this case does not deal with a decision made in a preliminary inquiry. Instead, this was a “traditional” certiorari application where the facts at issue were unique and without the availability of a remedy by way of certiorari, a profound injustice to the accused:

In my view, the normal or traditional grounds for bringing a certiorari application ought to be available in the present case. Unlike the preliminary inquiry context, there is a need for broad supervisory remedies because of the potential impact on the defendant's interests. The failure of a sentencing judge to review a s. 515(9.1) endorsement could result in grave injustice - namely, the incarceration of an offender beyond what is deserved. This result is contrary to fundamental principles of sentencing, including the requirement that all sanctions be "just"¹² and "proportionate to the gravity of the offence and the degree of responsibility of the offender."¹³

Conclusion

[30] I conclude that, in the circumstances of this case, certiorari is not available to review errors of law committed by a preliminary inquiry judge.

Part 2 - Is Denial of Natural Justice Reviewable

[31] The often quoted statement on when denial of natural justice occurs as a result of a decision or ruling at a preliminary inquiry is the Supreme Court in Forsythe supra:

In speaking of lack of jurisdiction, this Court was not referring to lack of initial jurisdiction of a judge or a magistrate to enter upon a preliminary inquiry. This is hardly a likelihood. The concern rather was with the loss of this initial jurisdiction and, in my opinion, the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed. However, jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code: see Doyle v. The Queen [1976 11 (SCC), [1977] 1 S.C.R. 597.]. Canadian law recognizes that a denial of natural justice goes to jurisdiction: see Alliance des Professeurs catholiques de Montreal v. Labour Relations Board of Quebec [1953 45 (SCC), [1953] 2 S.C.R. 140.]. In the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses. Mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence would not, in my view, amount to a jurisdictional error. However, the judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 of the Criminal Code.

In Attorney General for Quebec v. Cohen [1979 223 (SCC), [1979] 2 S.C.R. 305.], this Court was faced with an attempt by an accused to quash a decision of a magistrate during the course of a preliminary inquiry and before there was a committal for trial. Pigeon J., speaking for this Court, noted that this was an unprecedented proceeding. The decision which the accused sought to quash was a refusal by the magistrate to allow accused's counsel to put questions to a Crown witness on cross-examination in respect of depositions taken ex parte and in camera, under Criminal Code, s. 455.3(1)(a), by a magistrate before whom an information had been laid against the accused. An order to quash was denied on the ground that a ruling on the admissibility of evidence, even if erroneous, did not go to jurisdiction. There can be no gainsaying the correctness of this conclusion.

(emphasis added)

[32] A similar statement by the Supreme Court was made in Dubois, supra at para 19 where the court determined that, unless the ruling goes to the “basic rights” of the accused amounting to a violation of natural justice, no jurisdictional error is committed:

In summary, it is clear enough that no jurisdictional error is committed where the justice incorrectly rules on the admissibility of evidence or incorrectly decides that a particular question or line of questioning cannot be pursued at the preliminary inquiry. This is, of course, subject to the important condition that rulings in the course of a preliminary hearing on evidentiary questions as to the extent of limitation on the basic right to cross-examine or to call witnesses, may develop into a violation of natural justice and fall within the condemnation of Forsythe, supra, and hence be subject to judicial review.

[33] An example of where the court did quash the committal was where there was a breach of natural justice is in R. v. George (1991) 69 C.C.C. (3d) 468 (Ont. C.A.). The Court of Appeal in George, supra, concluded that the preliminary inquiry judge's refusal to permit ANY cross examination was a breach of natural justice and thereby, quashed the committal.

[34] However, even where there has been a denial of natural justice, this court retains the discretion as to whether to grant any relief on a certiorari application. The courts have exercised their discretion to deny any relief, in situations where the denial of natural justice was such that the defendant had not suffered any prejudice. In R. v. Papadopoulos, 2005 8662 (ON CA), [2005] 201 C.C.C. (3d) 363 (Ont. C.A.), the defence had not made submissions on post offence conduct which the preliminary inquiry judge relied on to commit the accused to trial. A certiorari application was brought. The reviewing judge determined that there had been a breach of natural justice but declined to exercise his discretion to quash the committal. The defendant appealed to the Court of Appeal. The Court of Appeal stated:

13.....The reviewing judge concluded that even though there had been a jurisdictional error in the form of a denial of natural justice, certiorari should not issue to quash the committal because the applicants had suffered no prejudice. In doing so, he relied upon the decision of this court in R. v. Harrington, [2004] O.J. No. 259.

14 In Harrington, the preliminary inquiry judge refused to allow counsel to make submissions on all issues except one. This procedural error amounted to a denial of natural justice. The reviewing justice agreed there had been a denial of natural justice, but refused to quash the committal because in his view there was no prejudice to the applicant since committal for trial had been inevitable. This court upheld that decision, relying upon the power contained in paragraph 686(1)(b)(iv) of the Criminal Code ("the proviso"), which states that an appellate court may dismiss an appeal where,

notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

15 Section 784(2) of the Criminal Code makes s. 686 applicable to appeals from a dismissal of an application for an extraordinary remedy such as certiorari.

APPLICATION TO THIS CASE

THE S. 486.2(2) (CCTV) APPLICATION

[35] The Applicant submits that all Keaney J. had before him was hearsay evidence – no expert evidence and no evidence of Ms. Warner.

[36] In my view, it was proper for Keaney J. to have relied on the evidence of Officer Colagiovanni on the voir dire. In the present case, there was no objection by the Applicants when Officer Cologiovanni gave his evidence which the Applicants now object to as hearsay evidence.

[37] There is no requirement for the witness, the subject of the application, to testify at the voir dire. R. v. C.D. (2010) 2010 22061 (ON SC), 257 C.C.C. (3d) 531 (Ont. S.C.J.) did not, contrary to the suggestion by the Applicants, differ from the approach taken by Keaney J. Justice Nordheimer heard evidence from the police officers and ruled on the Crown application solely on that evidence. Justice Nordheimer reserved the right to have the witnesses testify by CCTV on the voir dire if he considered it necessary. However, he determined this was not necessary for him to do so to decide the application based on the police officer’s evidence. Clearly, Justice Keaney did not need to hear from Ms. Warner for the purpose of deciding the application. That was a determination within the jurisdiction of Justice Keaney to make.

[38] In R. v. Levogiannis 1990 6873 (ON CA), [1990] O.J. No. 2312 the Court of Appeal reviewed the trial judge's decision to permit a child to testify behind a screen based on the expert evidence of a psychologist. The child did not testify at the voir dire. The Court of Appeal had this to say:

In my view, there was a sufficient evidential base to support the trial judge's ruling.

The complaint is made that, at one point, Dr. Sas said "merely" that the complainant would have "difficulty" testifying without the screen and the fact is noted that the complainant gave his evidence at the preliminary inquiry without the screen. The trial judge was aware of these factors and other, countering, ones. It must be kept in mind, providing there is an evidential basis for it, the making of the order depends on the judge's forming an opinion that the requirements for the provision have been met. It appears to me that, in making the decision turn on the trial judge's opinion, the intent of the provision is to vest substantial responsibility in the trial judge on this issue, with little scope for review.

The appellant also submits that the trial judge should have, at least, attempted to see if the complainant could give evidence without a screen before making the order. I think that it is wrong to lay down categorical requirements with respect to the kind of evidence that must be put before a judge before an order can be made. See Maryland v. Craig, supra, at p. 5050 L.W. In some cases, it would be wrong and self-defeating to require the complainant to testify without the benefit of an order under the subsection.

(emphasis added)

[39] With respect to the Applicants’ submissions that Keaney J. failed to take into account other evidence which demonstrated, according to the Applicants, that it was not "necessary" for Ms. Warner to give evidence by CCTV, is simply challenging whether Keaney J. made the right decision and not whether he made a jurisdictional error. The Applicants disagree with Keaney's decision. However, that does not go to jurisdiction.

[40] In any event, I do not accept the Applicant's submission that, just because Ms. Warner came forward and gave the police videotaped statements, she was not fearful for her safety to a point it was necessary for her to give evidence by CCTV.

[41] Justice Keaney's reasons, read in their entirety, sets out the considerable clear evidence that Ms. Warner would not testify if compelled to do so in open court before the Applicants. Justice Keaney had an evidentiary basis and accepted this evidence.

[42] I am not persuaded that the Applicants could not cross-examine Officer Colagiovanni. No doubt he had notes of his conversations with Ms. Warner. The Applicants’ counsel could probe the nature and extent of Ms. Warner’s expressed concerns and her actions which the Applicants suggest Justice Keaney did not consider.

[43] To use the language in Legiovannis, supra, Justice Keaney had a “sufficient evidentiary record” for him to consider and make the order. It was Justice Keaney’s decision to make and he did. Even if wrong, this is not a jurisdictional error subject to review by way of certiorari.

[44] I reject the suggestion that Keaney J. failed to exercise the right test under s. 486.2(2). In his reasons, Justice Keaney stated: "I am satisfied that in the absence of taking any step there is a risk the court could not obtain a full and candid account from her of the acts complained of.” The Applicants say this demonstrates that Keaney J. did not apply the right test. I disagree. Justice Keaney went on to say in the very next sentence: "I believe the provision of closed circuit T.V. or a screen is necessary to achieve that end". This tracts the language of the section. In any event, even if Keaney J. had made an error in granting the order, he had jurisdiction to make the order. There is no jurisdictional error.

[45] I am not persuaded that Keaney J. made a jurisdictional error with respect to his ruling on the s. 486.2(2) application.

The "WIG" AND "GLASSES" APPLICATION

[46] The Applicants seeks a remedy which would require Keaney J. to hold a voir dire with regard to the "justification for her manner of dress" (see para. 61 of the Applicant's factum).

[47] The Applicants conceded in oral argument that the "wig" (if it indeed was a wig) did not cover Ms. Warner's face and was not an issue. The Applicants focused on her glasses.

[48] Contrary to the Applicants' submissions, this case is very different from R. v. N.S. 2012 SCC 72. In N.S. the Supreme Court stated:

As a general rule, witnesses in common law criminal courts are required to testify in open court, with their faces visible to counsel, the judge and the jury. Face-to-face confrontation is the norm, although not an independent constitutional right: R. v. Levogiannis 1990 6873 (ON CA), (1990), 1 O.R. (3d) 351 (C.A.), at pp. 366-67, aff’d 1993 47 (SCC), [1993] 4 S.C.R. 475. To be sure, long-standing assumptions of the common law can be displaced, if shown to be erroneous or based on groundless prejudice — thus the reforms to eliminate the many myths that once skewed the law of sexual assault. But the record before us has not shown the long-standing assumptions of the common law regarding the importance of a witness’s facial expressions to cross-examination and credibility assessment to be unfounded or erroneous.

On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence.

[49] Having determined that the accused’s rights to full answer and defence had been engaged by the witness wearing a niqab, the Supreme Court had to go on to deal with whether the witness should be permitted to wear the niqab or remove it when giving evidence - a determination which required a balancing of the accused's rights of a fair trial and N.S.' religious rights to wear the niqab. A voir dire would be necessary to understand and evaluate N.S.’s rights.

[50] In my view, the court does not have to embark upon a voir dire to determine the witness’ rights to wear her clothing, hair, glasses, makeup or such other items, if the court determines that the accused’s rights to a fair trial are not being infringed. Where the court concludes that what the witness is wearing does or might impair the rights of the accused to a fair trial, the court is required to embark upon the necessary enquiry. This enquiry may be as informal as suggested by Doherty J.A. in N.S. by asking the witness why the witness is wearing sunglasses or more formally in a voir dire where the witness’s rights or medical reasons or other possible reasons, can be fully explored under oath or cross examination. However, the court does not have to hold a voir dire if the court determines that the accused’s right to a fair trial is not infringed by the manner in which the witness presents him or herself to the court. In these circumstances, where there is no breach of the defendant's rights to a fair trial, what would be the point of a voir dire?

[51] In this case Justice Keaney determined that the glasses were lightly tinted and did not prevent the witness’ eyes from being seen. He made a determination that the defendant's rights to a fair trial were not compromised.

[52] In any event, even if Keaney J. erred (of which I am not persuaded on the record before me), would it rise to the level of a breach of natural justice and thereby, constitute a jurisdictional error?

[53] In my view it would not. In many ways, this procedural ruling has significantly less impact on a defendant's rights to a fair trial than in the cases where the defendant in a preliminary inquiry was prevented from asking certain questions during cross-examinations or refused production of documents during the preliminary - neither of which were found to be reviewable as a jurisdictional error by the Supreme Court.

[54] The Applicants rely on Doherty, J.A.'s comments in N.S. at paragraphs 42-44 as indicative that Keaney J. was required to hold a voir dire. I disagree. First, Keaney J. found that what Ms. Warner was wearing were not sunglasses unlike Doherty J.A.’s example which was used to demonstrate an example where the witness’ eyes were blocked from view by the cross-examiner. Keaney J. found that the glasses did not shield her eyes from being seen by counsel. Second, Justice Keaney specifically concluded it did not impact on the questioner's ability for a full and proper cross examination – he found that the accused's "rights to make a full answer and defence" was not impaired.

[55] Again, Justice Keaney had the jurisdiction to decide whether the Applicant’s right to make full answer and defence was impaired by the glasses and determined they did not. Justice Keaney determined he didn't need to hold a voir dire on this issue. Even if wrong, this would not amount to a jurisdictional error.

CONCLUSION

[56] The application is dismissed.

Ricchetti, J.

Released: April 14, 2014

Adeyemi Ogunbitan, 2014 ONSC 2324

COURT FILE NO.: CRIM 0062-14
DATE: 20140414

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Steven Browne, Adrian Williams, Amal Greensword & Adeyemi Ogunbitan

RULING ON AMAL GREENSWORD AND ADRIAN WILLIAMS' MANDAMUS WITH CERTIORARI IN AID APPLICATION

Ricchetti J.

Released: April 14, 2014