ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR15-134 DATE: 20161012

BETWEEN:

Her Majesty the Queen Elizabeth Barefoot, for the Federal Crown

• and -

Michael Bemister Bernard Cugelman, for the Accused Accused

HEARD: October 11, 2016

REASONS FOR DECISION ON CROWN PRETRIAL APPLICATION: Audio-Video Link Testimony

Conlan J.

I. Introduction

The Charges

[1] Michael Bemister stands charged on a multi-count Indictment, as follows.

Michael Bemister stands charged that, on or about the 14th day of August, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did traffic in a substance included in Schedule I to wit: Fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 15th day of August, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did traffic in a substance included in Schedule I to wit: Hydromorphone, contrary to section 5(1) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: Fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did unlawfully possess a substance included in Schedule II to wit: cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession proceeds of property, $4840 in Canadian currency, of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession a firearm, to wit a 22 calibre rifle without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession a firearm, to wit a 22 calibre rifle without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did without lawful excuse store a firearm, to wit: a 22 calibre rifle in a careless manner contrary to section 86(1) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did without lawful excuse store a firearm, to wit a 22 calibre rifle in a careless manner contrary to section 86(1) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a prohibited weapon, to wit a flick knife without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a prohibited weapon, to wit a flick knife without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code.

[2] The accused has elected to be tried in the Superior Court of Justice, by a judge sitting alone. The trial commenced in Owen Sound on October 12, 2016. It is expected to last a few days.

The Application

[3] On October 11, 2016 in Walkerton, I heard an Application brought by the Crown to have the evidence at trial of witness Jesse Watson heard remotely via an audio-video link between the Owen Sound Courthouse and a location in Midland, Ontario.

[4] The Crown relied on both subsections (1) and (2) of 486.2 of the Criminal Code. For ease of reference, those two subsections are set out below.

Testimony outside court room — witnesses under 18 or who have a disability

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, 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.

Other witnesses

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, 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 if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

[5] The Defence opposed the Application.

[6] Mr. Watson’s evidence at trial is anticipated to relate to counts 1 and 2. It is alleged that he, on one occasion obtained fentanyl from the accused and, further, also on one occasion, he obtained hydromorphone from Mr. Bemister.

[7] Mr. Watson has nothing to add to the other nine counts on the Indictment. Thus, his testimony at trial is expected to take no more than one day.

[8] The evidence on the voir dire came exclusively from the Crown. It consisted of (i) an affidavit sworn by a paralegal employed by the prosecutor, which affidavit included as an exhibit a letter from Mr. Watson’s family physician dated October 7, 2016, (ii) an affidavit from police officer Mike Holovaci (“Holovaci”), which affidavit summarized a telephone conversation between the officer and Mr. Watson on October 4, 2016 during which Mr. Watson expressed his concerns about testifying in person at the trial, and (iii) an affidavit sworn by a lawyer employed by the prosecutor, which affidavit outlined the inquiries made concerning the availability of remote testimony from various locations.

[9] In addition to his affidavit, Holovaci testified on the voir dire and was cross-examined by counsel for the accused.

[10] At the conclusion of the hearing of the Application, I granted the relief sought by the Crown, on terms. These are my reasons for so deciding.

II. Analysis

Preliminary Objection by the Defence

[11] This Application was served and filed late. The materials were not served on the Defence until September 30, 2016, and some additional material was not served until October 7th.

[12] Ideally, the Crown would have moved faster after first being made aware of Mr. Watson’s potential desire to testify remotely on or about September 7, 2016.

[13] The Defence encouraged the Court to not entertain the Application at all. I rejected that invitation.

[14] I indicated that the Application would be heard but the Defence would be free to request a recess or an adjournment of the Application and/or the trial itself. A recess was taken. No adjournment was requested.

[15] Mr. Cugelman was able to fully cross-examine Holovaci and make thorough submissions on the Application. There was no prejudice to Mr. Bemister.

The Merits of the Application

[16] All of the cases filed by the Crown in support of the Application and the submissions by both counsel focussed on subsection (2) of 486.2.

[17] In my view, it is unnecessary to resort to that subsection. The Application can be disposed of on the basis of subsection (1).

[18] Subsection 486.2(1) deals with two categories of witnesses: (i) those under 18 years old, and (ii) those who may have difficulty communicating their evidence by reason of a mental or physical disability.

[19] As Mr. Watson is 28 years old, only the second category is relevant here.

[20] On an application under subsection 486.2(1), for a witness who is 18 years of age or older, the Crown bears the onus of proving, on a balance of probabilities, three things. First, it must be established that the witness is able to communicate evidence. Second, it must be proven that the witness may have difficulty doing so. Third, there must be a link between the witness’ potential difficulty in communicating his or her evidence and a mental or physical disability on the part of the witness.

[21] Once those things are established by the Crown, there is a presumption in favour of out-of-court or obstructed view testimony by the witness.

[22] That presumption is rebuttable if the Defence satisfies the Court, on a balance of probabilities, that the order sought would interfere with the proper administration of justice.

[23] All of the factors outlined in subsection (3) of 486.2, dealing with, for example, the need to protect the witness from intimidation or retaliation, are not relevant to an application under subsection 486.2(1). Those factors are relevant only to an application under subsection (2) – witnesses who are not minors or persons with a disability.

[24] There is no question that Mr. Watson is able to communicate evidence. He testified and was cross-examined at the Preliminary Inquiry.

[25] There is no question that Mr. Watson is mentally disabled. The letter from his family physician confirms a myriad of psychiatric diagnoses and a history of head trauma.

[26] The only possible debate could be on the issue of whether Mr. Watson may have difficulty communicating his evidence by reason of his mental disability.

[27] In my view, there is an adequate evidentiary foundation to make that finding. Mr. Watson told Holovaci that he is involved with Community Living and has a worker assigned to him to assist with daily living activities. He also advised Holovaci that he takes medication for an acquired brain injury.

[28] Although the Defence objected to some hearsay evidence during the course of the voir dire, such as comments made to Holovaci by Mr. Watson’s probation officer, there was no objection to the admissibility of statements made by Mr. Watson himself to Holovaci during their telephone conversation on October 4, 2016.

[29] Further, although the doctor’s letter does not say so explicitly, its content in outlining a host of serious psychiatric diagnoses (including ones related to schizophrenia, personality disorder, panic and anxiety disorder and depression) supports a reasonable inference that Mr. Watson’s ability to communicate his evidence may be compromised by his mental disabilities.

[30] No objection was taken to the admissibility of the doctor’s letter.

[31] I recognize that Mr. Watson testified in person at the Preliminary Inquiry, however, that does not mean that the Application must be dismissed by this Court. It simply is a function of the fact that no request for out-of-court testimony was advanced at that time.

[32] On balance, I am satisfied that the Crown has met the three requirements in subsection 486.2(1), and thus, there is a presumption that the relief sought will be granted.

[33] On whether the Defence has rebutted the presumption in favour of Mr. Watson testifying at trial remotely, I conclude that it has not.

[34] In fact, I see no prejudice at all to Mr. Bemister.

[35] I gather that Mr. Cugelman already made significant gains in cross-examining Mr. Watson at the Preliminary Inquiry. His ability to do the same at trial will in no way be shackled by Mr. Watson testifying remotely.

[36] Further, the terms that I outlined will ensure that the process runs efficiently and fairly.

[37] Finally, as I indicated at the time of my oral ruling, I reserve the right to revisit the issue during Mr. Watson’s testimony if, after hearing from counsel, it becomes clear that, for whatever reason, the proper administration of justice requires that the witness attend the Courtroom in person.

III. Conclusion

[38] For all of the above reasons, I granted the Crown’s Application to have the evidence at trial of Mr. Watson given by audio-video link from an out-of-court location.

Conlan J.

Released: October 12, 2016