ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 13-00018-00MO
DATE: 2015-11-19
REDACTED DATE: 2015-11-19
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.A.
Accused
Jeremy Schaffer, for the Crown
James Weppler, for the Accused
HEARD in Gore Bay: November 13, 2015
BAN OF PUBLICATION PURSUANT TO S. 486.4
OF THE CRIMINAL CODE OF CANADA
REDACTED RULING ON MOTION
DEL FRATE, J.
[1] The Crown brings a motion pursuant to s. 486.1(2) of the Criminal Code of Canada to permit the complainant to testify by CCTV and with a support person.
[2] The Crown submits that the complainant, who is presently 18 years and 8 months of age, should be afforded this opportunity since she is barely over the age of 18. She should be spared the trauma of having to testify in the court room and of having to face the accused. The Crown suggests by testifying in this manner it would facilitate full and candid disclosure.
[3] The Crown has referred me to several Supreme Court of Canada decisions and in particular R. v. C.C.F., [19973 S.C.R. 1183 and R. v. L.(D.)(O.), 1993 46 (SCC), [1993] 4 S.C.R. 419. These decisions describe the numerous challenges that a young person would have in testifying in an open court setting considering the trauma that he or she may have undergone at the time of the alleged offence. This is particularly so in a situation where the alleged conduct may have been imposed by a person in a position of trust.
[4] The defense submits that since the complainant is over the age of 18, the judge has discretion in permitting the witness to testify outside of the court room provided an evidentiary basis has been met. This onus is on the Crown. Such a process permits the judge to assess the individual situation and rule on whether it is appropriate under the circumstances.
[5] There is no doubt that testifying is a stressful experience, especially if the witness is young and is asked to recount unpleasant experiences. Parliament has recognized this fact and thus enacted s. 486.1(1) of the Criminal Code making it mandatory that anyone under the age of 18 “shall” testify outside of the court room or with the assistance of a screen. Parliament has also seen fit to enact s. 486.1(2) of the Criminal Code granting the judge discretion as to whether the same procedure is necessary for persons over the age of 18. It has made such a distinction to permit the judge to analyze whether such a system would facilitate obtaining a full and candid account from that particular witness.
[6] This exercise of discretion requires an evidentiary basis. In this case, the Crown submits that I should take judicial notice and exercise common sense since the complainant is “barely” over the age of 18. Further, the Crown has filed the report of Marnie Hall Brown, the Executive Director of the Manitoulin Family Resources. She has been counselling the complainant until one year ago. She opines that I consider granting the CCTV application since it would permit the complainant to give the court a better opportunity to provide a full and candid account of the events.
[7] Her report is of some assistance. However, it would have been more authoritative had a CV been attached to it so that I could determine whether she has the expertise to express the opinions outlined in the report. As well, her opinions are based on experiences from one year ago at a time when the complainant was under the age of 18. A more current assessment would have been preferable.
[8] I must also consider the current court facilities in Gore Bay. At the preliminary hearing the complainant testified via video from the jury room that is adjacent to the main court room. The Crown proposes having the complainant testify from the Crown’s office that is situated one floor below. From what I have heard so far in all likelihood, either in examination in chief or in cross-examination, the complainant will be referred to exhibits and portions of her statement. Her statement is not numbered. Although not an insurmountable exercise, challenges will arise.
[9] I am also mindful that this is a jury trial. I must consider the effect of not having the complainant in the court room while testifying. This is in spite of the instructions that I am obliged to give the jury when such a procedure is undertaken. There must be the appearance of fairness to all parties, and explaining that the witness is testifying from the Crown’s office may have a prejudicial effect on the accused.
[10] Accordingly, I intend to adjourn this application to the commencement of the trial at which time the complainant can be questioned and I can then determine whether she should testify via CCTV, with the assistance of a screen, or without any of these devices. I propose that this inquiry take place following the selection of the jury and with the assistance of a screen. I am open to whatever suggestions counsel may wish to make on this proposal.
[11] At this motion, and pursuant to my earlier ruling, there was a review of the videotaped statement taken by Constable McComb. Counsel are in agreement that the deletions made during their submissions are in order and the appropriate revisions of both the videotaped statement and the transcribed version will be reviewed by them as quickly as possible. Should any issues arise, I encourage counsel to contact me to discuss these matters prior to the commencement of the trial.
[12] Order to issue as per reasons.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: November 19, 2015
Redacted: November 25, 2015
COURT FILE NO.: CR 13-00018-00MO
DATE: 2015-11-19
REDACTED DATE: 2015-11-19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.A.
RULING ON MOTION
BAN OF PUBLICATION PURSUANT TO S. 486.4
OF THE CRIMINAL CODE OF CANADA
Del Frate, J.
Released: November 19, 2015
Redacted: November 25, 2015