CITATION: R. v. Humberto Dapena-Huerta, 2017 ONSC 7530

NEWMARKET COURT FILE NO.: CR-15-1279-00

DATE: 20171215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

HUMBERTO DAPENA-HUERTA

Respondent

A. Linds, for the Applicant

M. Rieger, for the Respondent

HEARD: November 30, 2017

RULING ON APPLICATION UNDER SECTION 714.1 [OF THE CODE]

HEALEY J.:

Nature of the Application

[1] The Crown applied for an order permitting a witness to testify at the trial by means of technology pursuant to s. 714.1 of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”).

[2] This application was argued late in the day on November 30, 2017. The witness was tentatively scheduled to testify the following morning, subject to the ruling on the application.

[3] This application was not raised at the pretrial, nor could it have been, as the Crown only learned following the first week of trial that the proposed witness had had to seek emergency care on November 26, 2017.

[4] Defence counsel raised a preliminary objection that the witness’ anticipated evidence was so vague as to be not probative, and bordered on being bad character evidence. The basis of the anticipated evidence is that provided by the witness during the preliminary hearing. At that time, she testified that during the year in which all of the offences on the indictment are alleged to have occurred, she observed the respondent arriving at work sometimes by 8:00 a.m., then leaving between 8:00 and 8:30 a.m. She would see him returning to work by 8:30 or 8:40 a.m. He would leave in his car. She estimated it to be more than once a month. This occurred frequently enough that she and another employee noticed it, and they both spoke about it.

[5] This evidence is relevant to the issue of opportunity, it being alleged in three of the counts that the crimes occurred between 8:00 and 8:30 a.m. It is one piece of circumstantial evidence that the jury may find assists them in connecting, or not connecting, the respondent to the crimes in question. Identity is the primary issue in this trial. As to its vagueness, that is a question of weight to be assigned solely by the jury. As it serves an admissible purpose, it cannot be characterized as impermissible bad character evidence being offered simply to attempt to prejudice the respondent.

[6] A voir dire was held during the application to determine: 1) whether the Crown was able to satisfy the requirement of a proper evidentiary foundation; and 2) whether the proposed technology, which was by means of Skype, would sufficiently allow the witness to testify in the virtual presence of the parties and the court.

[7] On the first issue, viva voce evidence was heard from the witness as her obstetrician was out of the country, although the physician’s office had provided evidence alerting the parties to potential problems with having the witness attend in court. Testifying through a Skype connection, the witness’ evidence satisfied defence counsel and the court that the restrictions placed on her by her obstetrician as a result of a high-risk pregnancy prevented her from leaving her home to testify in court.

[8] Following argument, this court ruled orally on the second issue that, provided that I was satisfied that the picture and audio quality provided an acceptable virtual presence the next day in court to allow the witness to be adequately seen and heard (the Internet connection being variable from day to day in the courtroom), the witness would be permitted to testify through a Skype connection. Although she lives in the province, she is unable to reach the courthouse to testify because of a medical condition. In all of the circumstances of this case, such order was necessary to satisfy the truth-seeking function of the trial, as her anticipated evidence was relevant. The court reserved the right to change the ruling if the Skype connection became inadequate and not rectifiable. The witness was also to testify privately, in the absence of the officer in charge of the investigation, who would initially be present to help establish the Skype connection in the witness’ home. The court also reserved the right to provide more fulsome reasons in due course.

[9] The following are my reasons for permitting the application.

Analysis

[10] Some guiding principles for applications pursuant to s. 714.1 were set out in R. v. S.D.L., 2017 NSCA 58, 352 C.C.C. (3d) 159, at para. 32. These are:

1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice.

2. That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice.

3. When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.

4. The more significant or complex the proposed video link evidence, the more guarded the court should be.

5. When credibility will not be an issue, the test should be on a balance of convenience.

6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross-examination be required, that could be done by video link.

7. When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited.

8. Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify “in a courtroom...or at the offices of Victims’ Services...”. To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.

The Law

[11] For cases in which applications under s. 714.1 of the Code have been granted, see R. v. Osmond, 2010 CANLII 6535; R. v. Denham, 2010 ABPC 82, 500 A.R. 211; R. v. Dessouza, 2012 ONSC 145; R. v. Jeanes, 2014 BCSC 994; R. v. Belem, 2017 ONSC 2213. For a case in which the trial judge’s decision to permit the procedure was overturned, see S.D.L., in which additional trial level cases are cited: paras. 23-31.

[12] Applying the principles set out in S.D.L. to the case before me, trial fairness would not be undermined by the use of the technology. The jury would be able to see the witness testifying through individual monitors located in the jury box. The respondent and his lawyer could see and hear the witness adequately during the “test run” on the voir dire. The defence has already been able to cross-examine the witness at the preliminary hearing.

[13] Further, I do not see that the jury will be negatively affected. They have already seen one witness testify from outside of the courtroom by video link pursuant to s. 486.2(1) because of her age. The required mid-trial instruction was given. A similar instruction can be given with this witness, indicating that the jury is to assess the witness’ evidence in the same manner as if it had been received from inside the courtroom, that the procedure used has nothing to do with the guilt or the innocence of the respondent and that no such inferences are to be drawn from the use of the procedure.

[14] Credibility is not a particularly significant concern with this witness, and she is not a complainant. It is the reliability of her evidence that is largely under attack by the defence, given that she made her observations over three years ago and was not interviewed by the police for several months after the respondent’s arrest.

[15] Her evidence will be brief. She is being called by the Crown simply to recount her observations of the respondent’s behavior as described earlier. The entirety of her testimony at the preliminary hearing on this point amounted to only a few pages in length. She is an important witness for the Crown, but was not an eyewitness to the offences in question.

[16] As indicated earlier, there was an evidentiary foundation supporting the request for the procedure, and defence counsel was able to cross-examine the witness regarding the restrictions imposed by her medical condition.

[17] Advance testing was done to ensure the viability of the procedure, and, as set out in the oral ruling, the court will monitor the process throughout to ensure sufficient auditory and visual integrity.

Conclusion

[18] While I agree that it is preferable that testimony be taken from inside a courtroom, it was not possible for the witness to leave her home due to the nature of her medical condition. She took a solemn affirmation before testifying during the voir dire, and there was nothing about her demeanor that suggested that she did not take the process seriously or give it the solemnity required.

[19] Under all of the circumstances this is a situation in which it is reasonable to have resort to s. 714.1 of the Code. For these reasons the application was allowed.

HEALEY J.

Released: December 15, 2017