Court File and Parties
COURT FILE NO.: CR-15-3477 DATE: 20170622 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – J. H. Respondent
Counsel: Jennifer Holmes, for the Crown Linda McCurdy, for the Respondent
HEARD: June 21, 2017
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Reasons on Application
Carey J.:
[1] The Crown seeks an order per s. 486.2(2) of the Criminal Code for the use of a testimonial aid, specifically a screen, by the complainant A.F. The grounds are that A.F. does not believe she can face the respondent without damaging her emotional health.
[2] The respondent opposes the application on the grounds that the respondent’s right to face his accuser should not be interfered with without persuasive evidence that the screen is necessary to obtain a full and candid account from the witness of the actions of the respondent.
Background
[3] The respondent is charged with ten counts of historical sexual assault. Five counts relate to his son C.H. and five relate to his step-daughter, A.F. The offences relating to A.F. are alleged to have occurred between January 1, 2004 and August 2011 when A.F. was between the ages of 10 and 17. She is now 23.
[4] The Crown relies on A.F.’s affidavit and the evidence of Dr. P.S.T.
[5] A.F. states she is “extremely fearful” of the respondent. Being in his presence is “very scary” for her and she is “embarrassed and disgusted” when he looks at her. Before testifying at the preliminary hearing, she states she suffered from panic attacks and sleepless nights, stressed by the anticipation of standing in court and facing the respondent.
[6] After the preliminary hearing, she “began to feel worse and started to suffer from frequent flashbacks” and had moments when she “would break down”. As a result, her affidavit states she “began to drink alcohol when not working”. She became unstable and sought the help of a therapist, whom she has seen for over a year. A.F. says the therapy has been helpful, but is concerned that she will “again suffer great anxiety and stress” if she has to see the respondent in the courtroom and seeks the testamentary assist to protect herself and her mental state.
[7] Dr. P.S.T. has been A.F.’s family physician for approximately five years. She is not a psychotherapist or psychologist. Based on what her patient has related, she believes that A.F. has experienced post-traumatic stress disorder. She admitted in cross-examination that she could not say if the post-traumatic stress disorder arose from events as a child, or from her having to testify and face her step-father.
Position of Parties
[8] The Crown relies on the affidavit of A.F. and Dr. P.S.T.’s evidence as the evidentiary basis needed to permit the complainant to testify behind a screen. The complainant testified at the preliminary hearing to a “lengthy and horrific pattern” of abuse by her step-father and has indicated in her affidavit the effects of confronting him in court at that time.
[9] The Crown relies on the factors set out in s. 486.2(3) of the Criminal Code and, specifically that A.F. is a youthful and vulnerable adult with a fragile mental state that could degenerate if she is required to face her step-father without the aid of a screen.
[10] The Crown says that there will be no interference with the respondent/accused’s right to a fair trial as he, his counsel and the court will be able to see the applicant. As a result, the Crown says there is no good reason for the respondent to oppose the request for the assistance of a screen for the complainant.
[11] Ms. Holmes concludes her argument for the Crown by pointing out that although now an adult, the complainant will be testifying about events that occurred as a child. Our law, she argues, recognizes the special circumstances of adult witnesses testifying and reliving trauma that occurred when they were children. The Crown urges consideration in this application of 486(2)(a) of the Criminal Code, “society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process”.
[12] The respondent’s counsel, Ms. McCurdy, asserts that the onus is on the Crown to show that the screen 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. The question, she says, is not whether the witness will be affected by giving evidence, but whether her ability to give the evidence will suffer. The defence says that the witness was able to give a full account of her evidence at the preliminary hearing without the evidentiary assist. The Crown is relying on the untested affidavit of the complainant who provides no evidence from the therapist who has treated her for the past year. The court, it is argued, should have heard an opinion from the therapist as to the state of the complainant A.F.’s current mental health. The complainant’s doctor’s opinion should be given little weight because she is a family physician who has no background in psychology and is relying simply on what her patient has related to her.
[13] The respondent has no obligation to consent or not oppose this application, says Ms. McCurdy. The Crown’s suggestion that the respondent has no valid reason to oppose the application unfairly reverses the onus from the Crown. The suggestion of the Crown that the respondent wants to cause intimidation to the witness is an uncalled for suggestion that ignores the presumption of innocence.
[14] The defence further relies on the common law to assert that it is a long recognized right for an accused to face his accuser and “look them in the eye” as an aid to the truth being told. It is similar to a responsible parent requiring a child to look them in the eye when seeking the truth about something the child may have done.
Analysis
[15] Western culture has a long tradition of valuing an accused’s right to confront his accuser and his witnesses. This led in the United States to the so-called Confrontation Clause, 6th Amendment to the Constitution and the procedural fairness guarantees of s. 7 of the Canadian Charter of Rights and Freedoms. The U.S. constitutional guarantee is rooted in both the common law right of an accused to cross-examine witnesses but goes even further back to Roman Law. In the 1999 U.S. Supreme Court decision in Lilly v. Virginia, Justice Breyer in a concurring opinion wrote:
The right of an accused to meet his accusers face-to-face is mentioned in, among other things, the Bible, Shakespeare, and 16th- and 17th-century British statues, cases and treatises. See The Bible, Acts 25:16; W. Shakespeare, Richard II, act i, sc. 1; W. Shakespeare, Henry VIII, act ii, sc. 1.
[16] The Acts of the Apostle verse regarding the Roman governors treatment of his prisoner Paul:
It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.
[17] In Canada, the ancient right has been modified. In R. v. R. (M.E.) (1989), 49 C.C.C. (3d), at p. 484-485, the Nova Scotia Supreme Court, Appeal Division said:
The right to face one’s accusers is not in this day and age to be taken in the literal sense. In my opinion, it is simply the right of an accused person to be present in court, to hear the case against him and to make answer and defence to it. In R. v. Lee Kun (1915), 11 Cr. App. R. 293 at p. 300 (C.C.A.), the Lord Chief Justice of England said:
The reason why the accused should be present at the trial is that he may hear the case made against him, and have the opportunity, having heard it, of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings.
That statement was adopted by Martin J.A. in *R. v. Hertrich* (1982), 67 C.C.C. (2d) 510 at p. 537, 137 D.L.R. (3d) 400 (Ont. C.A.).
[18] In England, the law has, since 1919, recognized that a judge might order an accused to be out of the sight of a witness. In R. v. Smellie (George), (1920) 14 Cr. App. R. 128 (1919), Lord Coleridge writing for the Court of Criminal Appeal upheld a lower court ordering in a trial of assault and neglecting a child, an accused to sit on the stairs leading to the prisoner’s dock while his 11-year-old daughter gave evidence standing out of sight near counsel for the prosecution to give her evidence:
If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter.
[19] In *R. v. Levogiannis*, [1993] 4 S.C.R. 475, the Supreme Court of Canada in concluding that s. 486(2.1) did not infringe ss. 7 and 11(d) of the Charter analysed the operative words of the section:
The use of the words "full and candid account of the acts complained of" in s. 486(2.1) of the Criminal Code cannot express more clearly what this section purports to achieve. That this is a valid purpose is beyond doubt. The only question is whether the effect of s. 486(2.1) deprives an accused of his or her right to a full defense and fair trial. In my view, it does not.
One must recall that rules of evidence are not cast in stone, nor are they enacted in a vacuum. They evolve with time. As discussed at length in L. (D.O.), supra, the recent trend in courts has been to remove barriers to the truth-seeking process (*R. v. Khan*, [1990] 2 S.C.R. 531; R. v. W. (R.), supra; and *R. v. Marquard*, [1993] 4 S.C.R. 223). Recent Supreme Court of Canada decisions (R. v. B. (K.G.), supra; *R. v. Smith*, [1992] 2 S.C.R. 915; R. v. Khan; and most recently in L. (D.O.)), by relaxing certain rules of evidence, such as the hearsay rules, the use of videotaped evidence and out of court statements, have been a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth.
[20] The evidence put forward by the Crown on this application satisfies me that the use of the screen that would allow the witness, A.F., not to see the respondent would facilitate the giving of a full and candid account by her of the acts that are the subject of the five counts relating to her in the indictment before this court. There are valid privacy concerns around therapeutic records that form part of the basis for the procedures in s. 278.2(1) of the Criminal Code that this court has earlier dealt with in this case. It would be an unlikely interpretation of s. 486.2 of the Criminal Code that would require a complainant to reveal the details of her therapeutic treatment for the alleged trauma of the events complained of, in order to assist in giving evidence about those alleged acts.
[21] I am satisfied on the evidence of Dr. P.S.T. that the witness, A.F., is dealing with a disability in the form described as post-traumatic stress disorder (PTSD). I am satisfied that Dr. P.S.T., as A.F.’s family physician, is qualified to make that diagnosis. It is irrelevant to the conclusions necessary to make the order requested, whether the traumatic events that led to the disorder are the acts complained of, other unrelated trauma or rooted in the stress and anxiety that accompanies the preparation for and testimony given in court. What is significant is this court’s opinion as to the use of the screen in facilitating the witness’s giving of her evidence. I am satisfied that it will assist the witness, A.F., in giving a full and candid account in her testimony. I am further satisfied that the order is in the interest of the proper administration of justice. In coming to this conclusion, I have considered A.F.’s age, her physician’s diagnosis of post-traumatic stress disorder and the nature of the allegations of sexual abuse by the respondent who is the step-father.
[22] I do, as well, consider that it is in society’s best interest to encourage the reporting of these types of allegations by putting in place a means by which the stress and the anxiety of testimony can be controlled to a degree that facilitates the proper giving of that evidence.
[23] In coming to the conclusions I have made, I have not, in any way, considered the opposition of the respondent as inappropriate or indicative of a desire to use his presence in the court to intimidate the witness. The section is not mandatory and an accused person has every right to assert their opposition to an evidentiary assist like a screen being used in the court room. It is reasonable for a person in the shoes of the accused/respondent to be concerned that the use of the screen might make an observer of the trial process think there must be some legitimacy to the allegations if the court has taken the step of shielding the witness from the accused. J.H. should be assured that while the court cannot control the opinions of others at this trial, in this court, the presumption of innocence is in place unless and until the Crown has proven the allegations beyond a reasonable doubt.
[24] I would also note that while the Crown could have relied on s. 486(4) of the Criminal Code and requested the witness give evidence on the voir dire by use of the screen, she did not. I accept this was done not only out of sensitivity to the witness, A.F., but out of fairness to the accused. The optics of using the screen to show the need for the screen might, although clearly available to the Crown, might leave an accused person thinking that the result was a foregone conclusion.
[25] The witness A.F. will be allowed to testify as requested by the assist of a screen.
Original signed by “ Justice Thomas J. Carey ” Thomas J. Carey Justice