Court File and Parties

Court File No.: 115-R2126 Date: 2017/04/13

Ontario Superior Court of Justice

Between: Her Majesty The Queen, Applicant – and – Rashid Belem and Ernesto Henriquez, Respondents

Counsel: Tara Dobec, for Crown K. Hyslop, for Respondent, Belem J. Langevin, for Respondent, Henriquez

Heard: April 6, 2017

Reasons for Decision

SHEARD J.

Nature of the Application

Nature of the Application

1The Crown brings an application for the following:

(i) an order under section 714.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“CCC”) that the complainant in this matter, Stephen Rowe (“Rowe”) give evidence from the courthouse in Nanaimo, British Columbia, via video (“video-link”);

(ii) an order pursuant to section 486.2 of the CCC that Rowe be permitted to testify outside the courtroom via closed circuit television (“CCTV”); and

(iii) an order directing that cross-examination of Rowe be conducted by defence counsel from the courtroom.

2The Respondents do not oppose the s. 486.2 order and acknowledge that the triers of fact, in this case, a jury, will receive Rowe’s evidence either via CCTV or by video link. The Respondents do oppose the s. 714.1 order and, for similar reasons, wish to be in the same room as Rowe (i.e. outside the courtroom) when they conduct their cross-examination of him.

Background

Background

3The Respondents are charged with a home invasion robbery of Rowe on December 26, 2014. The Respondents take no issue with the alleged facts of the offences as set out in paragraphs 3 through 9 of the Crown’s Application. They are briefly summarized as follows:

(a) Rowe is trained as an electronics engineer. He was forced to retire in 2012 due to mental health issues, which include social anxiety disorder and major depressive disorder. By 2014, Rowe was a recluse, unemployed, and abusing drugs;

(b) In the spring of 2014, Rowe met some young men in his neighbourhood from whom he bought drugs. Through the summer of 2014, these men began to spend more time in Rowe’s apartment, where they began to store drugs and to cook crack cocaine. Rowe became uncomfortable with the situation, but his voiced concerns were ignored;

(c) Throughout, Rowe was being treated by a psychiatrist, Dr. Richard Levine. In November or December 2014, Rowe told Dr. Levine about his predicament. With the support of Dr. Levine, Rowe began to deny entry to the drug dealers: he ignored their calls and declined to buzz them into his apartment. He did continue to allow one of them, “Max”, to enter his apartment so he could buy drugs from him;

(d) On December 26, 2014, Max appeared to be acting “weird” while at Rowe’s apartment. The door was open and Rowe saw a man known to him as “Chico”, who had stored and cooked drugs in his apartment. He saw another young man, known to Rowe as “Stretch”, running up the stairwell to his apartment. Rowe tried to close his door but “Chico” and “Stretch” got there first and barged in. “Chico” assaulted Rowe, breaking his nose and knocking out a tooth. Max went through the apartment and stole Rowe’s collection of swords and his iPod. On their way out of Rowe’s apartment with his belongings, the men threatened Rowe;

(e) Rowe did not call police at the time but later told Dr. Levine about the incident. With the assistance of Dr. Levine, Rowe reported the matter to police on January 10, 2015. Rowe provided the police with descriptions of “Chico”, “Max” and “Stretch” and phone numbers for the first two. After the police investigation, photo lineups were compiled and Rowe identified the Respondent, Rashid Bellum as “Max” and the Respondent, Ernesto Henriquez, as “Chico”. Phone records confirm Rowe’s account. “Stretch” remains unidentified.

Evidence on the Application

Evidence on the Application

4The Crown called two witnesses who gave evidence on the application: Ottawa Police Services Detective Chris Fahey and Dr. Richard Levine.

5Detective Fahey had interviewed Rowe on January 13, 2015, and was able to provide a brief summary of the alleged facts of the offences and to provide his personal observations of Rowe.

6Detective Fahey confirmed that Rowe has a social anxiety and phobia and is not comfortable in public. Detective Fahey spoke with Rowe on April 5, 2017 and was able to provide current evidence of Rowe’s financial and personal situation. In March 2015, Rowe relocated from Ottawa to Vancouver Island. He lives by himself and his three pets in a trailer park, in a remote area, approximately 45 minutes from Nanaimo. Rowe lives on social assistance of $610.00 per month. He supplements this by working as a janitor one day per week from which he earns $200.00 per month. Rowe’s rent is $600.00 per month and he must pay for his other expenses from the remaining $210.00.

7Rowe advised Detective Fahey that he remains on a waiting list for a local psychiatrist and continues to suffer from social anxiety, which worsened after he discontinued psychiatric counselling (Dr. Levine practises in Ottawa, Ontario). Rowe takes three prescription medications: Ativan, Effexor, and Ritalin. In addition, Rowe reported to Detective Fahey that he had suffered a severe back injury (“crushed” discs in his back) for which he receives weekly physiotherapy sessions. Rowe told Detective Fahey that travelling to Ontario to testify would cause him great mental distress and would exacerbate his back injury.

8In his evidence, Detective Fahey identified what he understands to be Rowe’s concerns:

(a) he fears for his physical safety: the Respondents are not in custody and “Stretch” has never been identified;

(b) his mental state: although Rowe takes prescription medications for these, his mental condition has declined because has not been able to secure a psychiatrist to provide him with counselling;

(c) his physical condition: Rowe’s back injury would be exacerbated by the flight from Vancouver Island to Ottawa; and

(d) his financial situation: Rowe lives off $810.00 per month of which rent consumes $600.00, leaving him with no money to front his travel or accommodation costs. Detective Fahey estimates those costs at $600.00, assuming a four-day stay in Ottawa for the trial. Even though Rowe is entitled to seek reimbursement of those expenses, covering those costs at first instance would pose a hardship for him. In addition, there are costs of the trip that Rowe would not be entitled to recover such as the costs of caring for his three pets while he was away and his potential lost income for that week.

9On cross-examination, Detective Fahey agreed that examining a witness via CCTV or video link is not the same as examining them in person. Detective Fahey also agreed that someone from the Ottawa Police Service could pick Rowe up from the Ottawa airport, thereby saving him that transportation expense. Detective Fahey further acknowledged that he had not looked into whether it was possible to make arrangements to cover Rowe’s travel expenses to save Rowe from having to front those expenses himself.

10The evidence of Detective Fahey was consistent with the November 10, 2015 interview conducted of Rowe by Constable Jordan Reid of the Oceanside RCMP detachment, located on Vancouver Island, near Nanaimo. In that interview, Rowe confirmed that he has three pets, who would require care if he were required to travel to Ottawa to give evidence. Rowe also identified financial hardship to him if he was required to make that trip. Finally, he confirmed that, while he had thought it might be beneficial to him from a “psychological standpoint” to be able to confront his attackers, Rowe stated that even saying that out loud brought back nightmares. Rowe did not think travelling to Ottawa was a viable option for him. Rowe stated that he was able to give evidence via CCTV but thought he was “not there yet” to be able to handle things in person.

Evidence via Video Link

Evidence via Video Link

11Detective Fahey was also able to give evidence about the Preliminary Hearing, which he attended. It took place in Ottawa on March 21, 2016 and Rowe testified from the Nanaimo courthouse, via video-link. Detective Fahey stated that the audio and the video at the Ottawa courthouse had been good. He said that there were no time delays in hearing a question or an answer. Detective Fahey acknowledged that there is a time zone difference between Ontario and British Columbia, but stated that the court had been able to accommodate that difference by starting at 11 a.m. Ontario time, 8 a.m. Vancouver Island time. Rowe was able to make the 45 minute trip from his home to the Nanaimo courthouse for his 8 a.m. start time. Rowe testified for approximately two hours.

12Should the s.714.1 application be granted, the Crown proposes to follow a protocol similar to that used for the Preliminary Hearing: Rowe would give his evidence from the Nanaimo courthouse via video-link. If required, the assistance of the Oceanside RCMP would be sought. In any event, Rowe’s evidence would be given in a courtroom-like setting with the assistance of court staff. In advance of the trial, the Crown would provide Rowe with hard copies of the documents that it anticipated putting to Rowe on his examination-in-chief. For other documents, if any, the Crown proposed sending them to Rowe a sealed envelope, which would only be opened at the trial, and under the direction of the trial judge.

13The Respondents express concern over logistics: they argue that a trial is a fluid thing and that the documents or exhibits to be put to a witness cannot always be predicted in advance of the start of trial. More important to the Respondents is their desire to have their lawyers be in the same room when cross-examining Rowe. Counsel for the Respondent, Henriquez argues that to get at the truth, it is better that the witness and the examining lawyer be in the same room so that the examining lawyer can “look the witness in the eye”.

14Any issues or concerns about the logistics of making documents available to be put to Rowe by defence counsel, could be addressed in a trial management conference. Given the nature of the case, it would not be unreasonable for documents to be put into electronic format for easy transmittal and remote viewing.

15As more fully explored later in these reasons, the argument that, to get at the truth the examining lawyer must be able to look the witness in the eye, has been rejected by the courts.

The Evidence of Dr. Richard Levine

The Evidence of Dr. Richard Levine

16Rowe has been Dr. Levine’s patient since August 25, 2011. He found Rowe to be very intelligent with a rich array of interests and suffering from a severe social phobia. In the course of counselling, Dr. Levine encouraged Rowe to get out of his apartment and to make friends. The friends made by Rowe include the two Respondents.

17Rowe confided to Dr. Levine that he had become fearful of his new friends. He feared retaliation if he threatened to throw them out of his apartment. When these new friends were coming to Rowe’s apartment, Dr. Levine observed Rowe’s condition deteriorating. Dr. Levine encouraged Rowe to stand his ground with his new friends. When he saw Rowe two weeks later, Rowe had a bloodied face and a broken nose and had been robbed of his prized Japanese swords.

18As a result of the assault, Rowe was afraid to leave his apartment. He was losing weight. Dr. Levine encouraged him to contact the police, which Rowe did.

19Dr. Levine stated that, because of Rowe’s severe social phobia, in social situations Rowe sweats and has a racing heart. Dr. Levine described such an episode as a “panic attack”. Dr. Levine stated that Rowe’s declining mental health caused his career to deteriorate. Dr. Levine prescribed medications for Rowe: Ativan, used for panic attacks; Ritalin, to treat Rowe’s ADHD; and Effexor, an anti-depressant, used to treat Rowe’s depression. Dr. Levine stated that Rowe has periods of depression which are helped by Effexor, but that medication does not help with Rowe’s social phobia. As a result of his mental health issues, Rowe could no longer work and, when living in Ontario, was supported by ODSP (Ontario Disability Support Program).

20Dr. Levine continued to talk to Rowe after his move to British Columbia, and most recently on April 4, 2017. Dr. Levine stated that Rowe expressed concerns about testifying at the upcoming trial. More important to Rowe than his concern about funding the travel costs is his phobia about being around or in contact with people. That is something that he would have to do if he were required to travel to Ottawa. Dr. Levine says that Rowe’s social phobia would trigger a cascade of symptoms and that requiring Rowe to travel to Ottawa would be a major hardship.

21Dr. Levine stated that he found Rowe to be in worse shape now than he was when in Ontario. Dr. Levine noted that Rowe has made unsuccessful efforts to secure a psychiatrist and remains on a waiting list for one.

22Dr. Levine stated that travel to Ottawa for this trial would be “ill advised” for Rowe and that it would be a “major psychological imposition” on a person such as Rowe who is very fragile. Dr. Levine was strongly of the opinion that it would be a much better medical option for Rowe to give his evidence via video-link from British Columbia rather than to require him to travel to Ottawa and suffer the psychological stresses attendant to that travel.

23Dr. Levine was asked for his views on Rowe being examined via CCTV. Specifically, he was asked about the impact upon Rowe if cross-examining counsel were with him in the same room. Dr. Levine was candid in his answer. He stated when first asked to think about this, he thought that it was only the two Respondents who would intimidate Rowe. But on reflection, Dr. Levine concluded that the experience of being cross-examined would trigger anxieties in Rowe and that Rowe would do better if the lawyers were not in the room with him; the closer the proximity to people, the more difficult it is for Rowe.

24On cross-examination, Dr. Levine acknowledged that whether Rowe gives evidence here or in British Columbia via video-link, he will still have to deal with police officers and others. He agreed that the bigger difficulty for Rowe is the travel. However, he stated that it would be better for Rowe if he were able to return to his own home (and pets) at the end of each day.

25Dr. Levine was candid in acknowledging that Rowe is a bright and articulate person and would be able to express himself if he found having the lawyers in the room with him during cross-examination to be too stressful.

The Law

The Law

26Subsection 714.1 of the CCC states:

A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present; and

(c) the nature of the witness’ anticipated evidence.

27The parties agree that an order under this section is discretionary.

28The Crown argues that it is not necessary for all three factors to be present for the Court to exercise its discretion in granting an order under s. 714.1.

29The Respondents do not oppose the CCTV application and recognize that the triers of fact, in this case, the jury, will be deprived of the “best view” of Rowe as a witness. However, they argue that their concession in not opposing the CCTV application “should not result in further negative consequences to the ability of the defence to cross-examine”.

30The Respondents argue that “having defence counsel able to make direct observation of the witness’s demeanour would at least allow for comments to be made regarding any aspects that may not be seen well on the video screen.”

31The right of a complainant to be shielded from the view of an accused is not new. In 1993, the Supreme Court of Canada concluded that the accused’s right to a fair trial as guaranteed by the Canadian Charter of Rights and Freedoms, was not infringed by allowing the witness to be shielded from the accused when testifying (R. v. Levogiannis, [1993] 4 S.C.R. 475). In Levogiannis, the complainant was a 12-year-old boy. He was permitted by s. 486(2.1) of the CCC to give his evidence from behind a screen that kept him from seeing the accused. In all other respects, the trial was conducted in the usual manner. Although the facts here are different from Levogiannis – here Rowe will not be cross-examined in the courtroom - the principles laid out in that case still apply. In Levogiannis the Court stated: “The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth” (at p. 483). That objective applies here.

32Levogiannis, and later cases, held that there is no right of an accused to have a face-to-face confrontation with the complainant and that an accused’s right to a fair trial was not infringed by allowing the child complainants to give evidence from behind a screen as permitted by s. 486.2 of the CCC (see R. v. J.Z.S., 2010 SCC 1, [2010] 1 S.C.R. 3, aff’g R. v. S. (J)., 2008 BCCA 401, 315 D.L.R. (4th) 24). In this case, that is conceded.

33As stated by L'Heureux-Dubé J. in Levogiannis and adopted by the British Columbia Court of Appeal in R. v. S. (J.), at para. 35, the “rules of evidence and procedure have evolved through the years in an effort to accommodate the truth-seeking functions of the courts, while at the same time ensuring the fairness of the trial.”

34J.Z.S. referred to s. 486.2, including s. 486.2(7). That subsection, now 486.2(5), reads:

A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony. [Emphasis added]

35Although counsel for all parties agreed that s. 486.2 is silent on whether the cross-examiner is to be in the room with the witness, by its wording, s. 486.2(5) does appear to contemplate that counsel for the accused may not be present in the same room as the witness who is giving evidence outside the court room.

36Based on the submissions of counsel and the experience of this Court, there does not appear to be a uniform practice about the location of cross-examining counsel: in some trials, defence counsel conducts the cross-examination in the room occupied by the witness and, in others, from the courtroom via CCTV. Counsel were not able to find any cases that have addressed that narrow point.

37A determination of this question may influence the determination of the s. 714.1 application: As the parties have agreed to allow Rowe to testify via CCTV and absent an inherent or statutory right of defence counsel to be in the same room with him during cross-examination, then the question may be what difference, if any, does it make to the accused’s right to a fair trial to allow Rowe to testify via video-link?

38I conclude that s. 486.2 does not presume or require that the cross-examining lawyer be present in the room with a witness who is testifying outside the court room. In the event of a disagreement, it would be up to the trial judge to exercise his or her discretion and, as per Levogiannis, to balance the “truth-seeking functions of the courts, while at the same time ensuring the fairness of a trial” (at p. 488). Orders under s. 486.2 do not require “that exceptional stress and inordinate stress be caused” to the vulnerable witness (Levogiannis, at p. 492).

39The needs and rights of victims have also been recognized in the recently enacted Canadian Victims Bill of Rights Act, S.C. 2015, c. 13, s. 2 (see ss. 13, 20). Rowe falls within the definition of “victim” under that Act. The Victims Bill of Rights Act is consistent with the principles in Levogiannis and provides that every victim has the right to request testimonial aids when appearing as a witness (s. 13) subject to the limits set out at section 20. The limits found in s. 20 require that the Act be reasonably construed and in a manner that is not likely to compromise or hinder the prosecution of any offence.

40Courts have rejected the notion that demeanour is determinative of credibility (see R. v. DeHaan (2002), 155 O.A.C. 358 (C.A.)). Moreover, when discussing the impact that demeanour has upon a determination of credibility, the courts are focussing on the impact upon the ability of the trier of fact, not defence counsel, to assess credibility when the witness gives evidence via CCTV or video link (see R. v. Chehil, 2014 NSSC 421, 353 N.S.R. (2d) 215; R. v. Petit, 2013 ONSC 2901). In this case, it has already been agreed that the triers of fact will only see Rowe via CCTV.

41The Respondents argue that their counsel needs to be in the same room when cross-examining Rowe to assess his demeanour and to observe physical reactions that may be less observable on CCTV or video-link. Similar arguments were made in R. v. Leblanc, 2014 NSPC 116, 361 N.S.R. (2d) 1. There, the Provincial Court of Nova Scotia noted that the notion that the assessment of credibility depends on observations of physical demeanour is a mistake, as those observations are rarely determinative of credibility (at paras. 51–52).

42Leblanc addresses many of the same issues that arise here. Here, as in Leblanc, the Crown has brought an application to allow the principal witness to give evidence via video link. Here, as in Leblanc, counsel for the defendants argued that it was “crucial” that the witness be present in order to see how he testified. Despite those arguments, in Leblanc the s. 714.1 order was granted. Among other things, the Court agreed with the conclusions reached by other courts that the “technology utilized will not have any effect on the accused’s ability to make full answer and defence” (at para. 17, citing R. v. Osmond).

43In granting the application to allow the two material Crown witnesses to give their evidence via video link, the Court in Leblanc also considered:

(a) that the exhibits to be put to the witness could be sent in advance to the witness;

(b) that the evidence could be given either from the courthouse, which can assure the integrity of the examination site by having court staff in attendance while the witness testified;

(c) that the witnesses and their parents would lose time from school or work if they were required to attend in person;

(d) that the cost to have each witness attend in person was $2,000; and

(e) that the court has used video link on a regular basis, including bail appearances and that, “[w]ith the advances in technology the court, the lawyer, the clerk and the defendant have been able to clearly see and hear the witness testify. Defence counsel has been able to cross-examine without constraint” (at para. 49).

44Many of those same considerations apply to this case:

(a) the Crown has stated that exhibits can be sent to Rowe in advance. While the Respondents argue that they cannot anticipate what documents may become exhibits, that could be addressed by scanning the exhibits in advance and providing an electronic version to Rowe, to be used at trial if required;

(b) it is anticipated that Rowe would give his evidence from the Nanaimo courthouse and with the assistance of court staff;

(c) there is evidence that Rowe could lose time from his job, on which income he depends;

(d) the Crown estimated that it would cost approximately $2,772.00 to bring Rowe to Ottawa. That figure does not include Rowe’s ground transportation to and from the airport. By contrast, the cost of conducting Rowe’s examination via video-link is expected to be $600.00 per day; and

(e) one of perhaps the most important of these considerations is that the evidence before this Court supports a finding that the video-link technology has worked well in this case: there were no difficulties with the sound or picture, and no delays in transmitting questions or receiving answers.

45The Respondents asked the Court to consider the factors to be considered on a s. 714.1 application as set out in R. v. Young, 2000 SKQB 419, 201 Sask. R. 158, at para. 8. The list of eight factors in Young was not intended to be exhaustive and expands upon the three factors set out under s. 714.1:

(1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross-examine that witness?

(2) the nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect to exhibits and the like and other matters that would not attract any particular objection on the part of the accused’s counsel;

(3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom;

(4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance;

(5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness’s life, such as his or her employment, personal life and the like;

(6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion;

(7) the cost to the state of having the witness attend in person; and

(8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial.

46Given the available technology and the evidence that it was successfully used at the Preliminary Hearing, I cannot conclude that if Rowe gives his evidence via video-link that it will impede or impact negatively upon the ability of defence counsel to cross-examine him.

47With respect to the second factor, the Crown concedes that Rowe is the central Crown witness and defence counsel has objected to his giving evidence via video-link.

48Based on the evidence on this Application, the third factor set out in Young will be satisfied: it is proposed that Rowe will give evidence at the Nanaimo courthouse with the assistance of qualified court staff and/or assistance from the local RCMP.

49Respecting the fourth factor, the evidence is that Rowe must travel 45 minutes to reach Nanaimo. There was no evidence as to whether it is possible to fly from Nanaimo to Vancouver or whether Rowe would have to fly there from Victoria, being additional ground travel for Rowe. In either case, Rowe would have to take two flights to get to Ottawa. The travel logistics are far from insurmountable. However, the considerations under the fifth factor are quite the reverse.

50It is difficult to speak of “convenience” in this case: the unchallenged evidence is that Rowe suffers from a severe social phobia and that being in public and, more importantly, being on a crowded airplane, would likely cause a panic attack or a “cascade of symptoms”. As described by Dr. Levine, to require Rowe to make this journey would be a “major psychological imposition” on him. In addition, it would require Rowe to leave behind his three pets, his weekly physiotherapy for his back injury, and, possibly, to lose a day of work, income which he desperately depends.

51Factor six has little application.

52Factor seven does have application: the cost to the state of having Rowe attend in person is estimated by the Crown to be in the $3,000 range, whereas the cost of having Rowe give evidence via video-link is expected to be $600.00 per day.

53The seventh factor identified in Young would appear to have little application. Here, the evidence has been that Rowe is motivated to give evidence and to seek a just determination of these matters. He has co-operated with the police and the Crown. Rowe has been through the Preliminary Hearing and no one has raised concerns about maintaining control over him.

Disposition

Disposition

54In consideration of all the evidence, I conclude that to require Rowe to attend in person and possibly suffer a panic attack or “cascade of symptoms” would undermine his ability to give evidence and the “truth-seeking” function of the courts. By contrast, allowing Rowe to give evidence via video-link would in no way undermine or affect the fairness of the trial.

55Having considered the evidence put before me on this motion and the applicable law, I find that an order under s. 714.1 would have no impact whatsoever upon the Respondents’ ability to make full answer and defence. I have therefore concluded that this Court should and does exercise its discretion to grant the Crown’s application pursuant to s. 714.1.

56Should either the Applicant or the Respondents require the s. 714.1 order to contain specific terms, they may submit a draft Order to me with the agreed-upon terms. In the event of disagreement, the parties may make arrangements to appear before me at 9 a.m. on a date convenient to the parties and me to make brief submissions.

57In view of this decision, an order under s. 486.2 would appear to be redundant. Similarly, it is not necessary for me to determine whether or not defence counsel should be permitted to cross-examine Rowe from the courtroom or in Rowe’s presence outside the courtroom. However, if a decision of that issue is required, for reasons similar to those upon which the s. 714.1 order was granted, I would exercise my discretion to require that defence counsel conduct the cross-examination of Rowe from the body of the courtroom.

L. Sheard J.

Released: April 13, 2017