COURT FILE NO.: CR-1011-18
DATE: 2019-08-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
N.H.
Respondent
Sandra M. Town, for the Crown
John Saftic, for the Defendant
HEARD: July 24, 2019
Gauthier J.
Overview
[1] The Crown seeks an Order that the child witnesses, C.H. and N.H. each be permitted to testify by means of closed-circuit television (“CCTV”), pursuant to section 486.2 of the Criminal Code, with a support person present and close while they testify.
[2] The accused consents to the use of the CCTV and to the presence of the support person, but requests that defence counsel be permitted to be in the room with the witnesses for their cross-examination.
Facts
[3] I have borrowed liberally from the Notice of Application.
[4] The respondent is charged with four counts of assault, one count of sexual assault, and one count of mischief, alleged to have occurred between 2005 and 2009. The complainant is the respondent’s former spouse, T.B.
[5] It is alleged that two of the incidents of assault were witnessed by the two child witnesses. Additionally, the accused previously (February 20, 2018) pleaded guilty to one count of criminal harassment of one of the two child witnesses.
Crown’s position
[6] A witness under the age of eighteen years is prima facie entitled to the benefit of testifying via CCTV from outside the courtroom.
[7] The CCTV technology allows for the witness’ “virtual presence” in the courtroom and provides a real-time transmission of the witness’ answers to questions, and of the witness’ physical responses, or “body language”.
[8] Arrangements can be made for the accused, crown and defence counsel, and the trial judge to view the child witness’ testimony, through the use of the CCTV. This will permit the accused to be able to see the witness, while also being able to communicate with his counsel in the course of the evidence being given.
[9] Such order for the use of the CCTV will not interfere with the proper administration of justice, while at the same time, safeguarding the interests of the child witnesses.
Defence position
[10] The presence of defence counsel in the room with the witnesses is required to (a) direct the witness to passages of statements, (b) to show the witness exhibits, (c) assess her body language, and (d) build a rapport with the witness. These valuable aspects of face-to-face questioning will be lost if counsel is prevented from being in the room with the child witness.
[11] CCTV does not allow a witness to always be in the same frame of the video camera when the camera is zooming in on documents.
[12] Bad acoustics and the imperfection of “microphone pick-up and delivery to another courtroom”, as well as the audio shortcomings, would be avoided if counsel is permitted to be in the room with the witness.
[13] The entire purpose of the CCTV, ie to prevent the witness from having to be face-to-face with the accused would be respected, and counsel would not in any way threaten, intimidate, or otherwise cause stress to the witness.
[14] Guiding principles:
…the main objective pursued by the legislative enactment…is to better “get at the truth”, by recognizing that a young child abuse victim’s evidence may, in certain circumstances, be facilitated if the child is able to focus his or her attention on giving testimony, rather than experiencing difficulties in facing the accused.
R. v. Levogiannis, 1993 CarswellOnt 131.
[15] Children require special treatment aimed at facilitating the attainment of truth in judicial proceedings. See R. v. D.(C), 2013 ONSC 494, 2013 CarswellOnt 670.
[16] Section 486.2 is aimed at limiting the strain imposed on child witnesses, who are required to provide detailed testimony about confusing, embarrassing and frightful incidents of abuse in an intimidating and often hostile courtroom atmosphere, while, at the same time, preserving the right of an accused to a fair trial. See R. v. L. (D.O.), 1993 CanLII 46 (SCC), 1993 CarswellMan 24.
Analysis and Conclusion
[17] There is no legitimate reason or need for defence counsel to be in the room with the child witnesses for cross-examination. To allow such would be contrary to the purpose envisioned by section 486.2 of the Criminal Code.
[18] To allow counsel to be in the room with the child witnesses would be inappropriate, unnecessary, and would cause those witnesses undue stress, fear, and intimidation. This, in turn, would have a negative impact on obtaining a full and candid account of the events which bring the accused (and the witnesses) before the court.
[19] The child witnesses should not be required to be confronted in cross-examination by a lawyer in a black gown, in close proximity to them, regardless of the fact that counsel will not seek to intimidate or otherwise cause additional stress to the child.
[20] Insofar as witness demeanour is concerned, its importance when assessing credibility has been rejected by our courts for some time. R. v. DeHaan (2002), 2002 CanLII 41697 (ON CA), 155 O.A.C. 358 (Ont.C.A.). Therefore, the argument that defence counsel needs to be in the same room when cross-examining the witnesses, in order to observe their demeanour and physical reaction is no longer a compelling one.
[21] Despite the concerns expressed by Mr. Saftic, there is no evidence that the cross-examination of the two witnesses via CCTV, with defence counsel in the courtroom, will be any less effective than if he were in the room with the witness.
[22] I am satisfied that fairness and justice will be promoted and respected by counsel conducting his cross-examination in the courtroom.
[23] The request to have him present in the same room as the witness is denied. The order requested by the court pursuant to section 486.2 is granted.
The Honourable Madam Justice Louise L. Gauthier
Released: August 2, 2019
COURT FILE NO.: CR-1011-18
DATE: 2019-08-02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
N.H.
Respondent
Decision on Application
Gauthier J.
Released: August 2, 2019