R. v. A.E., 2017 ONSC 3464

CITATION: R. v. A.E., 2017 ONSC 3464

COURT FILE NO.: 16-01471

DATE: 20170605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.E.

Defendant

Jennifer Gleitman, for the Crown

David Parry, for the Defendant

HEARD: June 5, 2017

RULING ON CROWN’S s. 486.2 APPLICATION

WARNING

An order restricting publication in this proceeding has been made under ss. 486.4(1) and s. 486.6 (1) and (2) of the Criminal Code. These sections of the Criminal Code provide as follows:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

bOSWELL j.

Introduction:

[1] A.E. faces a fifteen count indictment which includes two counts of human trafficking and two counts of procuring. He is alleged, in effect, to have been a pimp in relation to two separate complainants.

[2] One of the two complainants, A.B., has indicated to the Crown that she is suffering significant anxiety as she contemplates giving evidence in this case. She does not believe that she will be able to give a full and complete account of her evidence if compelled to give it in person, in the presence of A.E. The Crown applies for an order, under s. 486.2(2) of the Criminal Code, permitting A.B. to give her evidence from a remote location by way of a video-link. Alternatively, in a separate room at the courthouse through a closed circuit television link.

[3] Defence counsel opposes the Crown’s application on the basis that it will offend his right to make full answer and defence and interfere with his right to face his accuser.

The Evidence

[4] The court conducted a brief voir dire in connection with the Crown’s application. The officer-in-charge of the investigation, Detective Constable Ashley Smith, gave evidence and was cross-examined by defence counsel. Her oral evidence supplemented a short affidavit she filed with the Notice of Application.

[5] DC Smith described a meeting she attended with A.B. and the Crown on May 23, 2017, the purpose of which was to prepare A.B. for her trial testimony. According to DC Smith, A.B. expressed the following, in strong terms, during the meeting:

(a) She suffers from general anxiety, as a result of traumas she has experienced working in the sex trade industry. She has nightmares;

(b) She lives more than one hour away from York Region, but is unable to stay in a hotel given the traumas she has experienced;

(c) She is feeling great anxiety thinking about giving evidence again, in the presence of A.E; and,

(d) She did not believe her testimony came out well at the preliminary hearing because of the presence of A.E. in the courtroom and her resultant anxiety.

[6] DC Smith observed that A.B. was quite emotional when talking about testifying and the prospect of having to stay in a hotel. Later, she was given an opportunity to review a DVD of her police statement. She was unable to watch it and had to ask for a transcript only.

[7] DC Smith conceded, under cross-examination, that in her experience, many witnesses experience anxiety at the prospect of testifying in a Superior Court trial.

The Legal Framework

[8] The order sought by the Crown is a discretionary one, provided for in s. 486.2(2) of the Criminal Code which provides as follows:

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.

[9] Subsection (3) sets out a list of factors to be considered by the court in the exercise of its discretion, including:

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

(d) the nature of any relationship between the witness and the accused;

(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

(h) any other factor that the judge or justice considers relevant.

[10] There must, of course, be an evidentiary basis supporting any findings that the trial judge makes on the application: R. v. M.(P.), 1990 CanLII 6643 (ON CA), [1990] O.J. no. 2313 (C.A.), at para. 12. The findings must support the conclusion that the use of the testimonial aid is necessary to obtain a full and candid account of the acts complained of. This threshold is higher than the simple alleviation of nervousness or anxiety in the shy or introverted witness: R. v. H. (K.A.), 2005 CarswellOnt 2841 (S.C.J.).

The Parties’ Positions

[11] The Crown argues that the relationship between A.E. and A.B. was an abusive and parasitic one. Moreover, after allegedly breaking free of the relationship with A.E., A.B. found herself under the control of another pimp, suffering more physical and emotional abuse. She is traumatized and extremely anxious about testifying. There is a real risk that she will not be able to provide a full and candid account of events should she be required to testify in the courtroom. The truth-finding function of the court will be enhanced should she be permitted to testify by video-link and avoid a face-to-face encounter with A.E.

[12] Defence counsel urged the court to be judicious in the exercise of its discretion under s. 486.2(2). The gold standard of the adversarial model includes the right of an accused to face his or her accuser. That right should not too easily give way whenever a witness expresses anxiety or nervousness about testifying.

[13] The right to face one’s accuser is designed to enhance the truth-finding function of the court. In counsel’s submission, a witness is more likely to tell the truth if she or he must testify while facing the accused person. Moreover, the trial judge will be in a much better position to assess the credibility of the witness when the witness is seated directly beside the judge. Video-linked evidence does not adequately convey the witness’ demeanour. Finally, the cross-examination process is frequently hampered by difficulties with audio and/or video.

[14] Defence counsel submitted that in this instance, the Crown has failed to lay an evidentiary foundation sufficient to tip the scales in favour of granting the application.

Discussion

[15] As Justice L’Heureux-Dubé observed in R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, “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”. (Para. 13).

[16] Neither counsel disagrees with the observation of Madame Justice L’Heureux-Dubé. But they differ on whether, in this instance, the truth-seeking function will be enhanced or impeded by the requirement that A.B. testify in the courtroom.

[17] Defence counsel asserts that here, as in the vast majority of cases, A.B. is more likely to speak truthfully if she is present in the courtroom facing A.E.

[18] The adversarial system – with its process of examination and cross-examination of witnesses – has been settled upon in Canada as the most advantageous one for getting at the truth. I agree with defence counsel that the gold standard has historically required that witnesses attend in person to be examined and cross-examined. There may be a number of explanations for such a requirement, including but not limited to the following:

(a) Until recently, the technology did not exist to carry on live, real time, examinations through remote, video-linked locations. Technology has advanced of course and I would expect that witnesses testifying remotely will become much more commonplace in the not-too-distant future;

(b) There is much to be said for the assertion that witnesses will be more likely to tell the truth when they are in the courtroom environment, face-to-face with the accused. The way the courtroom and the participants are set up tends to enhance the likelihood that the witness will speak truthfully. The courtroom is a very formal, solemn room. The judge sits in a lofted position, peering down on the witness, alert to his or her every move. The judge, counsel and the court clerk are all robed, distinguishing them from the witness who is a conspicuous outsider. An oath or affirmation is administered. And the witness must face the accused person as he or she testifies; and,

(c) It has historically been considered the right of the accused person to face his or her accuser.

[19] More recently, this ancient “right” of confrontation has been very much qualified. It is no longer seen as an absolute right, but rather one subject to qualification in the interests of justice: Levogiannis, para. 30. Today it is considered the right to be present in court, to hear the allegations and the evidence, and to be given an opportunity to respond.

[20] Courts are faced, on a daily basis, with the task of balancing individuals’ Charter rights against societal rights and interests or against the Charter-protected rights of third parties. Sometimes one right must give way to another, in the interests of justice. At all times, rights must be considered contextually, in order to determine what a right demands, if anything, in the particular circumstances. See for instance, R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417.

[21] It has been conclusively determined that the use of testimonial aids, such as a screen or video-linked testimony may well promote society’s interest in getting at the truth. At the same time it does not undermine the principles of fundamental justice, nor impinge on the accused’s Charter-protected right to a fair trial: R. v. J.Z.S., 2008 BCCA 401, [2008] B.C.J. No. 1915 (B.C.C.A.) aff’d 2010 SCC 1, [2010] 1 S.C.R. 3. Section 486.2(2) is constitutionally valid.

[22] What is required of the court, in an application under s. 486.2(2), is to assess whether permitting the use of a testimonial aid will enhance, rather than impede, the truth-seeking function of the trial.

[23] In this instance, I am satisfied that it would. I say so for the following reasons.

[24] A.B. is still relatively young. She was 18 at the time of the incidents in question and is now in her very early 20s. To my knowledge, she does not suffer from any physical or mental disabilities.

[25] The offences involving A.B. are procurement, human trafficking and assault. These are serious criminal offences and involve allegations of control, abuse and exploitation of A.B. when she was a young and vulnerable woman. A.E. is alleged to have acted as her pimp; compelled her to provide sexual services for money; controlled her working conditions and taken her earnings. He allegedly maintained that parasitic relationship through violence and/or threats of violence.

[26] I accept, as Justice Cory observed in R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10, that prostitutes are frequently reluctant to come forward and complain about their pimps, and/or to testify against them. Permitting A.B. to testify by CCTV will encourage her to speak openly, fully and candidly on issues that are undoubtedly difficult ones for her.

[27] Defence counsel took issue with the evidentiary record and expressed the concern that it was so deficient that permitting A.B. to testify remotely in this instance would open the doors to just about any nervous witness who prefers to testify other than in front of the judge, counsel and the accused.

[28] The evidentiary record before me on this application is admittedly pretty thin, but it is sufficient to satisfy the requisite test.

[29] A.B. testified at the preliminary hearing. She has told the officer in charge that she felt she wasn’t able to testify fully and candidly on that occasion due to anxiety caused by being in the presence of A.E. I have no way, of course, to confirm that statement. Counsel did not point me to any portion of her preliminary hearing evidence that provided objective support for the assertion that A.B. was having difficulty testifying. The transcript would not, of course, tell me anything about what was going on mentally or emotionally with A.B. at the time.

[30] A.B. is not now receiving counselling in relation to the trauma she says she has experienced, nor apparently has she received any in the past.

[31] A.B. has not indicated that she fears A.E., but only that she is feeling very anxious about being in his presence. Perhaps those are two sides of the same coin. She has indicated that she has been traumatized by the experience of being coerced into the sex trade by two different pimps.

[32] I cannot of course assume that the allegations against A.E. are true. He is presumed to be innocent of the charges before the court. I do accept, however, that A.B. is legitimately traumatized by her experiences in life. I accept that she is expressing substantial anxiety – beyond the typical nervousness that any witness would feel. She not only expressed those feelings to the officer-in-charge in strong terms, but she was then unable to watch a video-recording of her statement to the police without a strong emotional reaction to it. She is further unable to stay overnight in a hotel room, given the strong, negative emotions she associates with hotels.

[33] I am persuaded that, in the circumstances of this case, the use of a testimonial aid would facilitate the giving of a full and candid account by A.B. of the events in issue. It will enhance the truth-seeking function of the trial.

[34] In my view, an appropriate balancing of interests supports a ruling that A.B. testify in Newmarket, but in a room adjoining the courtroom and through closed circuit television. In this way, she will not be compelled to directly face A.E. At the same time, she will be available for examination and cross-examination by counsel who may be present with her in the adjoining room.

[35] Crown counsel indicated that her first choice would be to have A.B. testify from a remote location in, or close to, A.B.’s home town. I do not know where she lives, though I am told it is about one hour’s distance from Newmarket. For me, the distance is a non-factor. Many witnesses attend from that distance or farther. The Crown intends to introduce a number of documents through A.B.’s testimony and that will be difficult to do if she is testifying from a remote location. Moreover, the quality of the cross-examination – a concern expressed by Mr. Parry – will be significantly enhanced if she attends the Newmarket courthouse in person.

[36] This arrangement may not be ideal from A.E.’s point of view. But it will in no way undermine his presumption of innocence. His counsel will also have a full opportunity to cross-examine the witness in person. The only difference for A.E. is that neither he nor I will be in the room with A.B. as she testifies.

[37] For my part, I have rarely found the demeanour of a witness to be an especially compelling factor in the assessment of credibility. The court of appeal has repeatedly cautioned against putting too much emphasis upon it. Any witness’ evidence must be assessed against the evidence as a whole. I think there is no better description of the process than that described by O’Halloran, J.A. in Faryna v. Chorny [1951], B.C.J. No. 129 (B.C.C.A.):

If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility… A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[38] I remain of the view that I will be more than adequately able to assess the credibility of A.B.’s evidence even if given from an adjoining room, on CCTV.

[39] In the result, the application is allowed, on the conditions I have indicated.

Boswell J.

Released: June 5, 2017