minicounsel

Court File No. 1622/16

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

HENRICK BENJAMIN

RULING ON SUPPORT DOG APPLICATION

BEFORE THE HONOURABLE JUSTICE L. K. MCSWEENEY on November 21, 2017, at BRAMPTON, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE L. K. MCSWEENEY, SUPERIOR COURT OF JUSTICE, DATED NOVEMBER 20, 2017

APPEARANCES:

G. Gill Counsel for the Crown

P. Erksine Counsel for Henrick Benjamin

SUPERIOR COURT OF JUSTICE

Legend

[ sic ] - Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically.

Transcript Ordered: December 5, 2017 Transcript Completed: July 30, 2018 Ordering Party Notified: July 31, 2018

TUESDAY, NOVEMBER 21, 2017

MCSWEENEY, L. K. (Orally):

Introduction

Yesterday at the end of the day, I ruled on the Crown’s application made pursuant to Section 486.1(2) of the Criminal Code, in relation to a support dog. I ordered that the complainant in this proceeding, whom I will call Ms. A, is permitted to have a support dog with her when she is testifying. I am now prepared to give my reasons for decision on that application, and I do so orally.

Pursuant to subsection 2 of Section 486.1 of the Criminal Code, the court has discretion to make such an order on an application, where the court 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.”

Positions of the Parties

The Crown called two witnesses, Ms. Perry of the Victim Witness Program, who is the handler of Gordon, a support dog; and Ms. Tonetti, a Victim Service Worker assigned to Ms. A. Defence counsel concedes that the support dog program is a valid program that has been previously used in this court. However, he opposes the application on the basis that the complainant does not need the dog, that is, that the dog’s support is not necessary. He concedes that Ms. A was 16 at the time of the offence, and that the nature of the offence alleged is a serious sexual offence. However, he notes from his perspective that Ms. A testified at the preliminary inquiry, at which the dog was available to her, without touching or otherwise appearing to connect with or need the dog. He also points out that she is now 21. He submits that, she is not, by virtue of her current age, entitled to the same presumptive supports as are accorded to those under 18 by virtue of Section 486.1(1). He also argues that there is insufficient evidence of the complainant’s mental health issues, which would support the use of the dog, and that the defence is agreed that Ms. A’s evidence in-chief will go in by previously recorded statement.

Defence counsel does not allege prejudice to the defendant from the complainant’s use of a support dog. I note in this regard also that this is a judge alone trial, and there is no issue here of having to explain the use of a dog or the presence of a dog to a jury.

Statutory Framework

I note the following with respect to the current wording in the section of the Criminal Code under which this application is brought. With the coming into force of the Canadian Victims Bill of Rights in July 2015, Section 486.1(2) of the Criminal Code was amended to read:

“in any proceedings against an accused, the judge or justice may, on application of the prosecutor...or the witness ...order that the...witness testify in the presence of a support person...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.”

This amendment changed the threshold question from “necessary to obtain a full and candid account” to “would facilitate the giving of a full and candid account.” In my view, this lower threshold signals Parliament’s intention to facilitate the granting of such orders in a greater number of cases where appropriate.

Section 486.1(2) contains a list of factors that the judge hearing the application must consider in determining whether to make this discretionary order.

Those factors include:

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; f. Society’s interest in encouraging the reporting of offences, and the participation of victims and witnesses in the criminal justice process; and g. Any other factor that the judge of justice considers relevant.

Analysis

Based on the current language of Section 486.1(2.1), the question for me is not, respectfully, whether the use of the support dog is “necessary” for Ms. A to give full and candid testimony. Rather the test for me to apply is whether on the evidence led on the application, I find that the use of a support dog will “facilitate” Ms. A giving a full and candid account to the court.

While the wishes of a complainant are not determinative of whether a request of support will be ordered, her views are a factor, as are the views of the experience VWAP worker, Ms. Tonetti. Both of those factors support the use of the dog, where a statutory provision exits, as it does here, for the making of such an order.

The question was raised by the Crown, whether a support dog may be considered “a support person of the witness’ choice” within the meaning of Section 486.1(2). In this regard, the testimony of Ms. Perry was helpful and was clear. She is the person responsible for the dog, she is required by policy and by the terms of relevant insurance coverage to always be present and “at the end of the lead,” which means at the end of the dog’s leash, when Gordon is providing support services. The dog is never present without its human handler. I find on this basis that the human dog handler of the support dog falls within the meaning of the section as a “support person of the witness’ choice.” In this case, the witness’ choice is a support person who brings a support dog with her.

In addition to the factors referenced above, which were conceded by the defence, namely the age of Ms. A at the time of the offence, and the serious nature of the offence, I note that the Crown witnesses also testified to Ms. A. experiencing some mental health issues, including anxiety and depression. With respect to Ms. A’s demeanour yesterday, when we were advised that she was preparing to give her evidence, they testified to her significant distress during preparation and to clear statements by Ms. A that she does not want to testify.

Ms. Tonetti also deposed that Ms. A was noticeably calmer when re-introduced to the support dog. She also deposed that Ms. A had originally met the dog at the preliminary inquiry. This is conceded and that she, at that time, testified, and was able to do so with the dog’s support.

While I agree with defence counsel for the defendant that many, if not most people, may be anxious when preparing to testify, the testimony of Ms. Tonetti described more than normal levels of anxiety and distress expressed by Ms. A when preparing to testify.

Conclusion

I conclude, on the basis of the factors referenced above, that the use by Ms. A of a support dog is likely to facilitate her testifying in this case and is therefore in the interest of the proper administration of justice. The application is granted.

Certificate of Transcript

Evidence Act, subsection 5(2)