SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

S.T.F.A.

PROCEEDINGS AT COURT

(Evidence of Witness E.P.)

BEFORE THE HONOURABLE JUSTICE R. DELFRATE with a Jury

on November 24, 25, 26, 2015, at Gore Bay, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM

PUBLICATION PURSUANT TO SECTION 486.4 OF THE

CRIMINAL CODE OF CANADA

APPEARANCES:

S. Schaffer and S. Haner Counsel for the Crown

J. Weppler Counsel for S.T.F.A.

DELFRATE, J. (Orally)

The complainant wishes to testify via CCTV, being closed circuit television, since she does not feel comfortable testifying in the presence of the accused and of Mr. Weppler.

The complainant is presently 18 years and 8 months of age. She is a student in grade 12, but is also taking make up courses.

The accused is her mother’s live-in boyfriend and prior to these charges, they all lived together. She has two younger sisters and another sister from S.T.F.A. and her mom. While they were living together there was the usual interaction amongst the family members. However, the complainant never did like the accused.

Following the incidents, the complainant moved out and I believe she now resides with her maternal grandmother G.P..

She testified that she felt comfortable when she gave the video statement to Officer McComb and when she testified at the preliminary via CCTV. She does not want to see the accused nor Mr. Weppler. She is angry at the accused and her mom, and Mr. Weppler. She is angry at her mom especially since she gets the impression she does not believe her. The complainant believes testifying in the presence of the accused invades her privacy. She believes that by testifying via CCTV she can have outbursts without any interruptions in the proceedings and without no one else seeing her. She also feels that testifying via CCTV she does not have to worry about the accused stepping out of this courtroom being found not guilty.

Actually, it appears that she is more fearful of Mr. Weppler than of the accused.

Section 486.2(2) of the Criminal Code states that a judge may order that that a witness testify outside the courtroom if it would facilitate a full and candid account from that particular witness, or if it is in the interest of the proper administration of justice. The proper administration of justice must apply to both the complainant and the accused, and I must keep in mind of the potential prejudicial effect of the screen while she testifies.

As mentioned, the complainant is 18 years and 8 months of age. She testified in a straightforward manner in-chief. She exhibited confidence. She is well spoken and acted quite maturely.

In cross-examination however, she became quite combative and at one point, over a rather very proper question, had an outburst and walked out of the courtroom. Upon resumption of the proceedings, she was calm, lucid and comfortable and very cooperative in answering the questions.

In my view, the complainant’s fears are not well founded. Her belief that she can explode in the video room and the jury not realize that she has exploded is not realistic. Obviously, the video will depict all of her actions and everything that she says and does.

Her fear of the accused and of Mr. Weppler is also not realistic.

The accused has been in court for some three days for the pretrial motions and for the selection of the jury, and for the complainant’s testimony in this application. There is no evidence that at any time he reacted in an untoward manner. He has assisted his counsel throughout in a very professional manner. There have been no outbursts or any indications that he will not abide by a court order that he remain normal in the courtroom.

The other aspect about fear is that at some point, in the not too distant past, the complainant was prepared to have the accused and her mom drive her back to Wikwemikong from the hospital in Sudbury.

In my view, testifying via a screen meets the requirements of Section 486.2(2). The privacy is afforded to the complainant and the accused is not prejudiced, especially in the presence of the jury, when I intend to instructed the jury prior to her testimony that such a procedure is permitted and that this procedure has nothing to do with the guilt or innocence of the accused. The jury is not to draw any inferences of any kind from its use. The jury cannot use this procedure to conclude, or help it to conclude, that the accused is guilty of the offences charged.

In my view, the use of the screen has nothing to do with how much or how little it may believe or rely on the evidence of the complainant. It does not affect her testimony one way or the other.

Accordingly, keeping in mind the interests of justice, the complainant will testify using a screen.