OSHAWA COURT FILE NO.: CR-19-15005
DATE: 20191017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Neville Blake and Stephye Khabemba
BEFORE: J. Di Luca J.
COUNSEL: George Hendry, Counsel, for the Crown
Michael Fairney, Counsel, for Stephye Khabemba
Robert Geurts, Counsel, for Neville Blake
HEARD: October 3, 2019
ENDORSEMENT
[1] The Crown applies for an order permitting two witnesses in the upcoming trial of this matter to testify by video link from a location in Quebec. The Crown relies on section 714.1 of the Criminal Code, and in the alternative, section 486.2(2). The Crown also seeks an order permitting the use of a support person pursuant to section 486.1(2).
[2] The defence opposes the use of a video link for the complainant in this case, Ms. M.A. The defence does not strenuously oppose the use of a video link for the evidence of Ms. L.A., the complainant’s mother. Lastly, the defence does not oppose the use of a support person.
[3] The accused are charged with a number of human trafficking related offences as well as sexual assault, all allegedly involving or against Ms. M.A. Their jury trial is scheduled to start on November 18, 2019.
[4] For the reasons that follow, the Crown’s application is allowed in part.
Background Facts
[5] M.A. was employed as a sex worker and met the two accused through a mutual acquaintance. She began working for the accused as an escort. For a time, things were okay. However, after some time, M.A. reported that the accused began treating her differently. In particular, she alleged that they became controlling and would not let her leave to go home. She also reported both physical and sexual assaults and threats involving both accused. The allegations first came to light when M.A. told hotel staff that she had been raped and forced to work in the sex trade.
[6] The complainant testified at the preliminary inquiry through a video link. She testified with the assistance of an interpreter. There were some difficulties encountered, including the loss of audio connection for a period of time and the fact that the complainant did not have a copy of the transcript of her police statement.
[7] M.A. is now 22 years of age and resides in Quebec. When recently contacted by Det. Cst. Tara Connolly of the Durham Regional Police Service, M.A. expressed frustration at the length of these proceedings and further expressed disinterest in participating any further. She was very emotional and crying during her phone call with the police officer and expressed a fear of retaliation if she testifies. In cross-examination, Det. Cst. Connolly could not provide details or particulars about M.A.’s “disinterest” in the proceedings.
[8] M.A. does not want to travel to Oshawa for the trial and indicates that the travel will trigger trauma and fear. She has recently started a job and does not want to take time off. Det. Cst. Connolly did not tell M.A. that the Crown would pay for travel and accommodation to attend the trial in Oshawa.
[9] Det. Cst. Connolly also spoke with M.A.’s mother, L.A., who advised that it is very difficult for her to travel from Quebec to Oshawa as she is the primary caregiver for two children, ages 13 and 10. She drives the children to and from school and does not have alternate child care arrangements. L.A.’s husband works long hours and is not available to care for the children.
[10] L.A. also expressed concerns about her daughter travelling to Oshawa for the trial. She reports that her daughter is struggling with trauma and was recently the victim of an unrelated domestic assault that resulted in some injuries.
[11] L.A. confirms that her daughter has expressed fear and anxiety about having to testify at the upcoming trial. While L.A. has suggested that her daughter should take some counselling, that has not happened to date.
Criminal Code Provisions
[12] Section 714.1 of the Criminal Code provides as follows:
Audioconference and Videoconference - witness in Canada
714.1 - A court may order that a witness in Canada give evidence by audioconference or videoconference, 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;
(c) the nature of the witness’ anticipated evidence;
(d) the suitability of the location from where the witness will give evidence;
(e) the accused’s right to a fair trial and public hearing; and,
(f) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence given by audioconference.
[13] Section 714.1 was recently amended to, inter alia, expand the factors the court must consider in determining whether an order under the section should be made. In this regard, factors (d) – (f) listed above were added.
[14] Sections 486.2(2), (3) and (5) of the Criminal Code, provide as follows:
486.2(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused 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.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(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) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.
Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
[15] The presumptive rule for an adversarial trial is that witnesses are present in the courtroom, in the presence of the accused and the public. This feature has been long recognized as being a component of an open and fair court process. In certain circumstances, however, a witness’ presence in the courtroom may cause unwarranted inconvenience, or in some cases may inhibit the search for the truth; see R. v. S.D.L., 2017 NSCA 58 and R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] S.C.J. No. 70. Mechanisms such as section 714.1 and section 486.2(2) of the Code provide an alternative to requiring a witness’ physical presence inside the courtroom. These mechanisms do not displace the presumptive rule that witnesses should be present inside a courtroom. Rather, they recognize that in certain circumstances, trial fairness is not sacrificed and the goal of the search for the truth is enhanced where a witness is permitted to testify outside the courtroom.
[16] Section 714.1 permits a witness who is inside Canada to testify remotely in the virtual presence of the accused. This section has often been used to address scenarios where two circumstances are present: (a) it would be too costly or inconvenient for the witness to travel to the courthouse where the accused is being tried and (b) the witness is not a central or significant witness in the case. Where an application under this section is successful, the witness attends at a convenient location, usually a courthouse located close to where they reside, and they testify by video link. The accused and everyone else in the courtroom can see and hear the witness as the evidence is given, assuming the technology works as expected. The use of the video link can present logistical issues which must be considered in advance. These include the mechanics of showing the witness exhibits that form part of the trial record, refreshing the witness’ memory from a statement (including a videotaped statement) or prior testimony, and cross-examining the witness on documents or other physical items.
[17] In R. v. S.D.L. at para. 32, the Nova Scotia Court of Appeal provided the following guidance on how to exercise the discretion conferred by section 714.1 of the 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. As the case law suggests, in appropriate circumstances, it can enhance access to justice.
That said, when credibility is an issue, the court should authorize testimony via s. 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.
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.
[18] Section 486.2(2) traces its history back to the Code provisions that permitted child witnesses to testify behind a screen, such that they could not see the accused. Those provisions were reflective of an awareness that the search for the truth was often hampered in cases where young witnesses were forced to face an accused in a courtroom setting.
[19] In R. v. Levogiannis, supra, the Supreme Court found the original provisions to be constitutional. Over time, the provisions have been amended on a number of occasions and also broadened. Currently, section 486.2(1) applies to cases where a witness is under the age of 18 or has a disability. In those case, the court shall make the order permitting the witness to testify outside the courtroom or behind a screen or other device, unless the court is satisfied that the order will interfere with the proper administration of justice.
[20] Where a witness is over 18 and suffers no disability, section 486.2(2) applies and provides that the court may order that the witness testify outside the courtroom or behind a screen or other device, where the court is of the opinion that the order would facilitate the giving of a full and candid account of the acts complained of, or would otherwise be in the interests of the proper administration of justice. In assessing whether an order under this section should be made, the court considers the factors listed in section 486.2(3). The test under this section does not require exceptional circumstances; see R. v. Hagras, [2019] O.J. No. 2423 at paras. 6-14 (Ont.C.J.) and R. v. K.P., [2017] N.J. No. 69 (Nfld.Prov.Ct.).
[21] While the genesis and statutory construction of sections 715.1 and 486.2(2) are different, there appears to be a degree of overlap between the provisions. Section 486.2(2) permits testimony outside of the courtroom by “means of a closed-circuit television or otherwise”. It does not specify where the witness must be while testifying. Many modern courthouses have witness rooms linked to a courtroom by a closed-circuit television system in order to quickly and effectively accommodate orders made under this section. Indeed, it appears that in bringing these applications, counsel expect that the order requires the physical presence of the witness at the actual courthouse where the trial is taking place. However, as I read section 482.2(2), the witness’ physical presence at the courthouse where the trial is taking place is not a statutory requirement. All that is required is that the witness’ evidence be observed by the accused, the judge and jury, and that the accused be able to communicate with counsel during the testimony.
[22] It may be that a court will need to determine whether section 486.2(2) may be resorted to, instead of section 714.1, in support of a request to have a witness testify outside the courtroom and in a location other than the courthouse where the trial is taking place. The answer may be of some importance given the different jurisprudential tests that have developed around the sections. However, in view of the result I have reached in this case, I need not determine the issue.
Analysis
[23] I will start with the request relating to the complainant’s mother, Ms. L.A. As noted above, Ms. L.A. is not a central witness in this case. She provides evidence relating to the narrative and initial reporting of the allegations by the complainant. It is not anticipated that her evidence will be either lengthy or contentious.
[24] She resides in Quebec and has young children she cares for. She is unable to make alternate arrangements for her children. Realistically, requiring her to attend at the Oshawa courthouse from Quebec will require an overnight stay.
[25] The Crown has made arrangements for her to testify from a courtroom in Quebec. The courtroom will be staffed by court staff and will not be publicly accessible to anyone else, so there is no risk of witness tainting by someone who will not be seen in the courtroom in Oshawa.
[26] When I consider the criteria under section 714.1, I am readily satisfied that it would be appropriate to permit this witness to testify by videoconference in the manner proposed.
[27] I turn next to the complainant, Ms. M.A. First, the defence does not oppose an order permitting the presence of a support person pursuant to section 486.2(1), and I agree that it is appropriate in this case.
[28] In terms of the Crown application to have M.A. testify outside the courtroom, I note that the Crown seeks an order under 714.1 permitting the witness to testify from Quebec, and in the alternative an order under section 486.2(2) permitting the witness to testify outside of the courtroom but in the Oshawa courthouse.
[29] The charges in this case include sexual assault and human trafficking. The offences are very serious. There exists a societal interest in encouraging the reporting of these offences and in encouraging participation by witnesses in the court process relating to these charges.
[30] The complainant is 22 years of age and now resides in Quebec. She has expressed reluctance to participate in the process and has expressed fear of the accused, though there is no suggestion that either accused has attempted to contact her in any way since the charges were commenced.
[31] It is clear that the complainant is also facing some significant life hurdles and is not doing well. She was recently the victim of an unrelated domestic assault that resulted in injuries.
[32] Whether I consider the criteria under section 714.1 or under section 486.2(3), I come to the conclusion that it would be appropriate to permit the complainant to testify from outside the courtroom by video link. I am satisfied that testifying outside of the courtroom will facilitate the giving of a full and candid account, and that it is in the interests of the administration of justice to permit it.
[33] The more difficult question is whether that testimony can take place at a courthouse in Quebec or at the courthouse in Oshawa. In my view, the complainant’s testimony must be given from a room at the courthouse in Oshawa. In reaching this conclusion, I consider the following:
a. The complainant is the main witness and her credibility and reliability will be key issues for the jury to determine. She may be a reluctant and/or emotional witness. It is reasonably foreseeable that she may need to refresh her memory from transcripts, take additional health breaks, et cetera.
b. It is anticipated that the complainant will be cross-examined on transcripts of her statement to police and her preliminary inquiry evidence. She may also be cross-examined on documents and other items currently in the possession of the defence, though not in the possession of the Crown. The mechanics of using transcripts and documents to cross-examine a remote witness’ testimony presents certain challenges. In circumstances where the defence seeks to use items in cross-examination that it is not required to disclose, the challenges are all the more daunting.
c. The witness is being assisted by an interpreter.
d. This matter is scheduled to be tried by a jury.
e. Jury selection is set for November 18, 2019. The Crown advises that the courtroom in Quebec is not available until November 21, 2019. There is no challenge for cause. Jury selection will likely be done in less than a day. There would be a two day delay before the complainant could testify. While some witnesses could be called out of sequence, it seems probable that the jury will have to be sent home for some period of time.
f. The Crown will make travel and accommodation arrangements for the witness. Cost is not an issue. While the complainant has indicated that she does not want to travel to Oshawa for the trial, she was not advised that the Crown would cover her expenses and accommodation.
[34] When I consider all of these factors, particularly the fact that the case is to be tried with a jury, I conclude there is a real risk that the presentation of this witness’ evidence may become fractured and unmanageable if she is in a courtroom in Quebec. I can readily foresee delays and difficulties stemming from attempts to place documents and transcripts before a witness in a courtroom that is hundreds of kilometres away. In addition, the defence has indicated that it is in possession of non-disclosure related material that it may seek to use in cross-examination. On the record before me, there is no realistic way for this to happen in a manner that protects the right to make full answer and defence, confidentiality and potentially privilege. I have considered whether I should require the defence to provide in a sealed packet or packets any documents or items it wishes to use in cross-examination, and that the packets could be opened and shown to the witness as directed. I am concerned that such an approach will fail to reflect the often fluid and spontaneous nature of cross-examination. I am also concerned that the process will simply result in confusion and mistakes.
[35] In my view, the risk of a fractured or delayed process is alleviated by the witness’ presence at the courthouse in Oshawa. The witness will testify from a room that is nearby the courtroom where the trial is to be held. Court staff can provide ready access to documents provided by either the Crown or defence. There is little risk of technological problems hampering the proceedings and, if those arise, the court will have the option of assessing whether the delay in the proceedings warrants re-visiting the order permitting the witness to testify outside the courtroom.
[36] I have also considered the potential impact of travel to Oshawa on the complainant. I accept that staying in a hotel in Ontario may bring back traumatizing memories of what she alleges happened to her. That said, the risk of this trauma is alleviated in part by the fact that the complainant will not be required to be in the presence of either accused in the courtroom. She will have access to a support person and I trust that the Crown will make efforts to engage any assistance that Victim Services can provide.
[37] When I consider all of these factors, I conclude that the option that strikes that most sensible and fair balance is that the complainant be permitted to testify outside the courtroom but at the courthouse in Oshawa.
Justice J. Di Luca
Date: October 17, 2019