Court File and Parties
Court File No.: CR-16-70000559 Date: 2018-08-27 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: William Robert Metcalfe
Counsel: Neville Golwalla, for the Crown Bob Richardson and Ian S. McCuaig, for William Robert Metcalfe Dawne P. Way, for the Complainants
Heard: August 10, 2018
Restriction on Publication
BY COURT ORDER MADE UNDER SUBSECTION 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY A PERSON DESCRIBED IN THIS JUDGMENT AS A COMPLAINANT MAY NOT BE PUBLISHED, BROADCASTED OR TRANSMITTED IN ANY MANNER. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION SO THAT IT CAN BE PUBLISHED.
Reasons for Judgment
Faieta J.
[1] William Robert Metcalfe (“Metcalfe”), and Philip Wood (“Wood”), worked at the Rohan Farm (also known as the Sagamor Farm) group home located north of Kingston, Ontario during the 1970s and 1980s.
[2] While under the care of a Children’s Aid Society, four individuals (namely, DL, RF, RG and GR - “the Complainants”) were placed in a group home. The complainants allege that they were sexually abused by Metcalfe and/or Wood during the time that they resided in this group home.
[3] Metcalfe is charged with: (1) indecently assaulting DL, RG, GR and between August 15, 1977 and August 15, 1981 contrary to s. 156 of the Criminal Code; (2) committing an act of gross indecency with DL, RG, GR between August 15, 1977 and August 15, 1981 contrary to s. 157 of the Criminal Code; and (3) committing buggery on GR between August 15, 1977 and August 15, 1981 contrary to s. 155 of the Criminal Code.
[4] Wood is charged with: (1) indecently assaulting DL, RF, GR and RG between August 15, 1977 and August 15, 1981 contrary to s. 156 of the Criminal Code; and (2) committing an act of gross indecency with DL, RF, RG and GR between August 15, 1977 and August 15, 1981 contrary to s. 157 of the Criminal Code.
[5] The Crown seeks an order, pursuant to s. 714.1 of the Criminal Code, permitting three of the four complainants, RF, GR and RG, to give their evidence by video link. Mr. McCuaig, counsel for Metcalfe, advised that counsel for Wood has told Mr. McCuaig that Wood consents to this application.
[6] Detective Sergeant Hunter Smith of the Toronto Police delivered an affidavit and testified at the hearing of this application.
[7] RF resides in the area of Kingston, Ontario. He suffers from numerous illnesses. His needs arising from those illnesses are significant, and include the need for a personal support worker to assist with his activities of daily living. Mr. McCuaig advised that Metcalfe consents to RF giving his evidence at trial by video link. In the circumstances, I find that it is appropriate to permit RF to give his evidence at trial by video link.
[8] However, Metcalfe opposes GR and RG being permitted to give their evidence by video link.
Analysis
[9] Section 714.1 of the Criminal Code 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. [Emphasis added.]
[10] Two further provisions are relevant to an application under s. 714.1 of the Criminal Code. First, s. 714.8 of the Criminal Code provides that s. 741.1 does not prevent a court from receiving evidence by means of technology if the parties so consent. Second, s. 714.7 of the Criminal Code provides that a party who wishes to call a witness to give evidence by means of technology must pay any costs associated with the use of that technology.
[11] In my view, the application of s. 714.1 should be informed by the principle expressed by the Supreme Court of Canada that the evidence of a witness in a criminal proceeding must be given in a way that is most favourable to eliciting the truth so long as it does not impair the accused’s right to make a full defence and a fair trial: R. v. Levogiannis, [1993] 4 S.C.R. 475, at paras. 14, 20.
[12] The only appellate court guidance on this provision was provided by the Nova Scotia Court of Appeal in R. v. S.D.L., 2017 NSCA 58, 352 C.C.C. (3d) 159. The court stated, at para. 32, that the following principles should guide the exercise of the broad discretion granted by s. 714.1 of the Criminal Code:
As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. In appropriate circumstances, it can enhance access to justice.
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.
When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.
The more significant or complex the proposed video link evidence, the more guarded the court should be.
When credibility will not be an issue, the test should be on a balance of convenience.
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.
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.… To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.
With respect, the above approach places too much weight on the nature of a witness’s anticipated evidence. The test as formulated in R. v. S.D.L. creates a presumption that barring exceptional circumstances, a witness whose credibility is at issue must testify at trial in the physical presence of the accused and the trier of fact. Had it been Parliament’s intention to create such a presumption, it would have said so. Instead, Parliament included the nature of a witness’s anticipated evidence as one of three listed factors for the trial judge to consider when making a determination under s. 714.1. I agree with the court in R. v. S.D.L. insofar that, when credibility issues are identified under s. 714.1(c), countervailing evidence under s. 714.1(a) and (b) is required to justify the use of video-link evidence. However, in my view, discretion to balance these factors should remain with the trial judge without being subject to a formal presumption. I adopt this balancing approach in my analysis below.
GR
[13] Detective Sergeant Hunter Smith provided the following evidence:
- GR is a complainant against both Wood and Metcalfe;
- GR is 55 years old. He lives in Alberta.
- GR worked as a truck driver and labourer for most of his life and is now on disability as he was diagnosed with post-traumatic stress disorder. He suffers from manic depression and borderline personality disorder. He sees a counsellor at a sexual abuse centre;
- GR testified at the preliminary inquiry on June 16, 2016 by video link from Edmonton and the technology worked well.
- In May 2018 GR told the Coordinator of the Victim Witness Assistance Program that he is prepared to attend trial in Ontario;
- On June 21, 2018 he spoke to GR and advised him that the trial is scheduled to commence on September 24, 2018; GR told him that he is ready, willing and able to fly to Toronto in order to attend trial;
- The travel costs associated with attending trial in Toronto are estimated to be $1,831, including one night hotel accommodation;
[14] Given GR’s status as a complainant, the importance of his evidence and his willingness to travel to Toronto to testify at trial despite his personal circumstances, it is not appropriate to order that he testify by video link merely because of the cost of attending this trial. Accordingly, the Crown’s application in respect of GR is dismissed.
RG
Detective Sergeant Smith provided the following evidence:
- RG is a complainant against both Wood and Metcalfe;
- RG is 55 years old. He is an Indigenous man and lives in the area of Thunder Bay, Ontario;
- Detective Sergeant Smith was contacted by RG’s spouse after she had heard news about allegations of sexual abuse at the group home. In turn, Detective Sergeant Smith contacted RG. He described RG as being shocked by the telephone call and stated that RG did not want to give Detective Sergeant Smith any details regarding the alleged events with Wood and Metcalfe. RG told Detective Sergeant Smith that RG had not spoken to the other complainants in 20-30 years. Given RG’s responses, Detective Sergeant Smith was left with the impression that RG had left the alleged events that had happened at the group home about 40 years earlier behind him;
- Nevertheless, RG testified at the preliminary inquiry for a half-day on June 20, 2016 by video link from the courthouse in Dryden, Ontario, and the technology worked well.
- On June 21, 2018 Detective Sergeant Smith spoke to RG and advised him that the trial is scheduled to commence on September 24, 2018. RG told him that he was “very reluctant” to attend trial in Toronto as he is a construction worker and fears that he would lose his job if he was away for more than one day. Detective Sergeant Smith did not contact RG’s employer to learn if these fears were well founded. RG refused to provide Detective Sergeant Smith with his current address as RG did not want to have police to come to his home. As a result, Detective Sergeant Smith has been only been able to deliver a subpoena by email;
- In July 2018 RG told the Coordinator of the Victim Witness Assistance Program that he was working, by contract, on a reserve. He repeated that he feared that he might be fired from his job if he left for a few days to attend a trial in Toronto;
- The travel costs associated with attending trial in Toronto are estimated to be $1,098, including one night hotel accommodation.
[15] The Crown submits that RG should be permitted to testify by video link from Dryden, Ontario because: (1) the video link from Dryden worked well at the preliminary hearing; (2) RG lives in the area of Thunder Bay, Ontario and may lose his job if he is away from more than one day; (3) RG is reluctant to talk about the allegations of sexual abuse; and (4) RG does not want to attend the trial in Toronto and requiring him to do so would risk “re-victimizing” him.
[16] Metcalfe submits that RG should be required to testify in Toronto because his evidence is critically important for the following reasons: 1) as the complainant, he is the only witness to be called by the Crown who witnessed the alleged events that occurred 40 years ago; 2) an assessment of his credibility and reliability is crucial to the just determination of the charges against him; 3) demeanour is an important factor in the overall assessment of the credibility of a witness; 4) there is no substitute for a trier of fact being physically near the witness as he or she testifies; and 5) RG’s evidence will be less than one day and his concern regarding his job can be address by appropriate scheduling.
[17] Metcalfe submits that permitting RG to testify by video link will impact the ability of the accused to cross-examine him but also impact the ability of the trial judge to assess RG’s reliability and credibility.
[18] While traditionally a witness testifies against an accused in the same location and in sight of each other, the right to make a full defence does not include the right for an accused to be in the physical presence of a witness: R. v. J.H., 2017 ONSC 3868, at para. 17, citing R. v. R. (M.E.) (1989), 49 C.C.C. (3d) 475 (N.S.C.A.), at pp. 484-485.
[19] Metcalfe did not dispute the Crown’s evidence that there were no technological problems with the use of video link during the course of RG’s direct and cross-examination at the preliminary inquiry. In addition, Metcalfe did not dispute the Crown’s submission that the video link could provide a close view of RG during his examination.
[20] Contrary to Metcalfe’s assertion, although demeanour is one factor for the trier of fact to consider, demeanour is not a particularly important factor in the assessment of the credibility of a witness. In R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, the Ontario Court of Appeal stated at para. 85:
It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.
[21] Instead, the credibility of the evidence given by a witness turns largely on the examination of whether, amongst other things, the evidence is: 1) internally consistent; 2) inconsistent with his or her own prior statements; and 3) in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: R. v. T.A., 2018 ONSC 1423, at para. 209, citing Baker-Warren v. Denault, 2009 NSSC 59, 27 N.S.R. (2d) 271, at para. 19.
[22] In any event, I am not satisfied that the court’s ability to observe RG’s demeanour at trial will be impeded if this application is granted.
[23] Finally, I am not as confident as Metcalfe that, even with an accommodation, requiring RG to be physically present when he testifies in Toronto will mean that he is only away from work for one day. While I do not necessarily accept that RG will lose his job if he is away from work for more than one day, a longer absence from work may require RG to explain to his employer the reason for his absence even though he has exhibited a great reluctance to speak about those events.
[24] Considering all of the circumstances, I find that it is appropriate for RG to testify at trial by video link from the courthouse in Dryden, Ontario. There is a real risk that RG may not come to Toronto for trial; accordingly, the truth seeking function of this trial would be frustrated if this application were dismissed. On the other hand, there is likely little, if any, negative impact on Metcalfe’s right to make a full defence and a fair trial if RG testifies in the virtual presence of the parties using the video link facilities of the courthouse in Dryden, Ontario.
Conclusions
[25] The Crown’s application to permit RF and RG to give their evidence by video link at trial is granted.
[26] The Crown’s application to permit GR to give his evidence by video link is dismissed.
Faieta J. Released: August 27, 2018