Court File and Parties

COURT FILE NO.: CR-14-00002183 DATE: 20160921 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. K.M.

BEFORE: Justice M.L. Edwards

COUNSEL: Ms. J. Lee, Counsel for the Crown Ms. M. Fernandes, Counsel for K.M.

HEARD: August 2, 2016

Endorsement

[1] At the commencement of the trial in this matter, Crown counsel sought an order allowing the complainant, S.L., to testify outside the courtroom, or behind a screen or other device that would allow her not to see the respondent. The application was brought pursuant to section 486.2(2) of the Criminal Code of Canada. The accused in this case is charged pursuant to section 271(1) of the Criminal Code with Sexual Assault. He is also charged with offences contrary to sections 151 and 152 of the Criminal Code.

[2] At the time of the alleged offences S.L. was between the ages of 13 and 14, and by the time she commenced her evidence in the trial before this Court she was nearly 19 years of age.

[3] In support of the Crown’s application an affidavit of Emmeline Duggan was filed, who is employed with the York Region Victim Witness Assistance Program. Ms. Duggan was the worker assigned to the prosecution of K.M., and had spoken with S.L. and her family on numerous occasions.

[4] Ms. Duggan was in attendance during the preliminary hearing and sat with S.L. as she testified. S.L. was 17 years of age at the time of the preliminary hearing. S.L. testified outside the courtroom by a closed circuit television (CCTV).

[5] In her affidavit filed in support of the Crown application, Ms. Duggan states:

S.L. does not have concerns with testifying inside a courtroom, but has expressed her discomfort and anxiety of seeing K.M. in court while recounting their intimate and sexual history.

I understand S.L. would prefer to testify behind a screen over testifying via closed circuit television.

[6] Section 486.2 of the Criminal Code permits certain categories of witnesses to testify outside of the courtroom, or by way of the utilization of a screen or other device so that the witness will not see the accused.

[7] As S.L. is over the age of 18, section 486.2(1) does not apply as this section only applies in a situation where the witness is under the age of 18 years, or the witness is in a situation where he or she is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability. None of those preconditions apply to S.L.

[8] The factors to be considered on an application pursuant to section 486.2(2) are set forth in subsection (3). In that regard the relevant factors as they apply to S.L. include her age, the nature of the offences, the nature of the relationship between the accused and S.L., and society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system.

[9] There was no issue on this application with respect to S.L. requiring the order for her security, or to protect her from intimidation or retaliation.

[10] The thrust of the argument before the Court really came down to a question of whether or not S.L. should testify behind a screen, or outside of the courtroom through the facilities of CCTV.

[11] I am satisfied on the basis of the affidavit evidence of Ms. Duggan, that given the nature of the charges and the fact that S.L. will be recounting allegations of what can only be described as a very intimate and sexual history alleged as against K.M., that it is appropriate for the Court to exercise its discretion and allow S.L. to testify behind a screen.

[12] There was no real argument that there would be any impediment to counsel for K.M. in her cross-examination of S.L. There was no suggestion that any such inability to cross-examine S.L. would impact on trial fairness.

[13] At the time I made my Ruling allowing for the use of a screen, I had not had the opportunity to actually see a demonstration of how counsel would be able to conduct their examination in-chief and cross-examination. Having now watched both the examination in-chief and two days of cross-examination of S.L., it is fair to observe that the use of the screen, in my view, did not impact whatsoever on the ability of either counsel to conduct their examination of S.L. Counsel had, for all intents and purposes, an unobstructed view of S.L. during the course of their examination.

[14] I am satisfied that even with the benefit of hindsight, having seen the use of the screen in this case, that the original order made by this Court allowing for the examination of S.L. utilizing the screen has in no way impacted on trial fairness.

Justice M.L. Edwards Date: September 21, 2016