COURT FILE NO.: 7796/17

DATE: 2019-01-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

• and -

D.W.M.

Respondent

Heidi Mitchell, Counsel for the Applicant

C. Bruce Willson, Counsel for the Respondent

HEARD: January 21 and 22, 2019

MCMILLAN J.

ENDORSEMENT on s. 714.1 APPLICATION

The Application

[1] The Crown seeks an order pursuant to s. 714.1 of the Criminal Code, permitting L.G. to testify from a courthouse in Kamloops, British Columbia, by closed circuit video (television) as a Crown witness in this trial in Sault Ste. Marie, Ontario.

Overview

[2] The accused is charged by indictment with six counts of sexually based offences arising between February 13, 1991 and February 12, 2003, in Sault Ste. Marie, Ontario, involving a minor, K.A., the daughter of the proposed witness, L.G., both of whom reside in Kamloops.

[3] The accused was arrested September 30, 2016, committed for trial November 21, 2017, and the presumptive ceiling date is March 29, 2019, pursuant to the R. v. Jordan, Supreme Court decision.

[4] The accused initially elected to be tried before a judge alone on November 21, 2017. He re-elected to be tried before a judge and jury, on consent of the Crown, on December 6, 2017. A pre-trial conference was conducted February 7, 2018, and on February 21, 2018, a trial date was fixed to commence January 21, 2019. A further re-election to judge alone was granted on December 21, 2018 with consent of the Crown.

[5] The Crown filed a Trial Readiness Report, dated January 10, 2019, indicating that the Crown’s pre-trial position had changed in that the Crown would be bringing a 714.1 based application to permit a witness to testify from Kamloops, and that the Crown would file all materials required by the Rules before the commencement of the trial on January 21, 2019.

[6] On Friday, January 18, 2019, the Crown served and filed the notice of application and supporting affidavit of Chantal Corriveau, sworn January 19, 2019, a secretary in the Sault Ste. Marie Crown Attorney’s office.

[7] On Monday, January 21, 2019, the accused was arraigned and pleas of not guilty were entered on each of the six counts. The Crown began by addressing the issue of the application and the court queried a preliminary requirement for leave to bring the application at that stage of the proceedings. Defence counsel sought and was granted an adjournment to the following morning based on short notice.

[8] On January 22, 2019, the court heard submissions from counsel. Defence counsel opposed both the granting of leave to the Crown to bring the application at this stage, as well as the substantive application to permit L.G. to testify at trial by video link.

Background

Issue of Leave

[9] The only material served and filed by the Crown was the notice of application, Form 1, which is required to be served 30 days before the first day of trial pursuant to the Rules of Criminal Practice, and the supporting affidavit of Ms. Corriveau, both of which were served Friday, January 18, 2019 in respect of the trial commencing January 21, 2019.

[10] With respect to the affidavit of Ms. Corriveau, she deposes that she only attended to formulating the “witness fee statement” on January 16, 2019. Additional Exhibits “C” and “D”, letters addressing health issues of the proposed witness, are both dated January 17, 2019.

[11] The notice of application informs that the Crown will be relying upon the affidavit of Ms. Corriveau; viva voce evidence of Detective Constable Joe Addison; and a book of authorities. While Officer Addison was present in court on both January 21 and 22, 2019, he was not called to testify in respect to this matter.

[12] The pre-trial conference was convened February 7, 2018 before Varpio J. who completed a Report to Trial Judge respecting the contemplated trial. At page 9, paragraph 15 thereof, His Honour made the following entries in blue ink:

15. Manner in which evidence is to be introduced N/A

(a) Does the Crown or Defence seek to have any witness evidence introduced:

Crown Defence

(i) By video link (s. 714.1 or 714.2) Yes No Yes No

(ii) By reading in evidence previously taken (s. 715)

Yes No Yes No

[13] On page 21 of the Report to Trial Judge at paragraph 31, Pre-Trial Judge’s Time Estimates, the anticipated number of Crown witnesses were indicated to be “1-3”. On this leave issue, the Crown advises that three witnesses would be called at trial, comprised of the complainant, the investigating officer, and L.G.. Ms. L.G. is described in Ms. Corriveau’s affidavit in support as “an essential Crown witness with material evidence to give at trial” at paragraph 3(a). Defence counsel acknowledges that Ms. L.G.’s evidence would be material.

[14] Contemporaneously with the aforesaid Report to Trial Judge, Justice Varpio completed the Standard Criminal Pre-Trial Endorsement form which cautions counsel that all issues to be addressed at trial have been identified in the Report to Trial Judge and that:

No new issues, or issues not identified during the course of the Pre-Trial, may be raised at or before the Trial without leave of the Trial Judge.

Copies of the foregoing documents are provided to counsel.

Analysis

[15] The Crown acknowledges that leave is required in order for the Crown to proceed with the Application to permit Ms. L.G. to testify from Kamloops via video conferencing. She further admits that she has not spoken personally with Ms. L.G.. There is no affidavit from Ms. L.G..

[16] The Crown acknowledges further that the issue of Ms. L.G.’s questionable health and place of residence was at the forefront long ago and certainly by the time of the preliminary hearing on November 21, 2017 at which time it was uncertain as to whether or not Ms. L.G. would even be alive by the time of trial. The uncertainty as to the witness’ ability to testify is nothing new and in fact the medical exhibits tend to endorse her ability to attend court here in person.

[17] Exhibit “D” to the Corriveau affidavit is a very brief letter, dated January 17, 2019, signed off by Ms. L.G.’s nurse practitioner, Jocelyn Rhode, NP (Family), advising that Ms. L.G. “is medically cleared for an airline flight to Ontario, January 2019” and that her diagnosed “epilepsy is medically managed and stable” without incident for over three years.

[18] Dr. E. Ewart in a letter dated January 17, 2019 and appended as Exhibit “C” to Ms. Corriveau’s affidavit indicates that “she is currently being treated for metastatic rectal carcinoma”. There is nothing further and it is unknown what the form of the treatment may be nor the regimen or schedule, and if she would be prohibited from attending court in Sault Ste. Marie with regard to health and treatment. The Crown advises that she would be available to testify by video link Thursday or next Monday, but I do bear in mind that the Crown has not spoken personally with Ms. L.G..

[19] The Crown to her credit acknowledges that the very recent emergence of the issue of a s. 714.1 application is attributable to inadvertence or oversight on the part of the Crown’s office notwithstanding that she did speak to defence counsel about this potential witness at the accused’s re-election to judge alone on December 21, 2018 and was informed that defence counsel would be away over the seasonal holiday period.

Decision

[20] Considering all of the foregoing factors respecting how this situation evolved and bearing in mind the principle of trial fairness, I am not inclined to grant leave to the Crown at this stage of the proceeding which is not on the eve of trial but rather at the trial, and without any meaningful notice.

[21] If the courts are not to adhere to governing timelines as they apply to the pre-trial process, the administration of justice and timely scheduling would, I suggest, fall into significant disarray. One need only consider the serious ramifications resulting from the timelines presented by the decision in R. v. Jordan to appreciate the importance of the process in the criminal justice sector.

Substantive Issue: Re s. 714.1 Application

[22] In the event that I am mistaken in refusing leave to the Crown to bring the s. 714.1 application, I wish to address my position on the application itself as though leave was granted. In that respect, I will not repeat the chronology of the antecedents referenced above nor the acknowledgments of counsel.

[23] The application is brought pursuant to s. 714.1 of the Criminal Code which provides:

714.1 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. 1999, c. 18, s. 95.

[24] The application informs solely through the affidavit in support of Ms. Corriveau, a secretary in the local Crown’s office. Other factors advanced in the submissions of Crown counsel are, as defence counsel contends, hearsay upon hearsay. The Crown has not spoken directly with Ms. L.G. concerning this application.

[25] Ms. L.G. does reside in Kamloops, British Columbia, and has certain health issues. Exhibits “C” and “D”, the medical letters dated January 17, 2019, do not indicate that the witness is incapable of attending in Sault Ste. Marie to give evidence, and indeed Exhibit “D” states that she is medically cleared for an airline flight to Ontario, January 2019.

[26] Exhibit “A” thereof is titled Crown General Witness Fee Sheet and was prepared by Ms. Corriveau on January 16, 2019. The expenses are an “estimate” and total $3,109.92, including an “approximate” flight expense of $2,733.92.

[27] Ms. Corriveau deposes in paragraph 3(c) of her affidavit that closed circuit video from Kamloops would cost approximately $100/hour. Notwithstanding the advance notice requirements of five business days, the Crown has advised that Ms. L.G.’s attendance could be accommodated in short order.

[28] The only evidence before me respecting the nature of Ms. L.G.’s proposed evidence is to be found in paragraphs 3(a) and (b) of Ms. Corriveau. In subparagraph (a), she deposes that Ms. L.G. is an “essential” Crown witness who would give material evidence. Defence counsel acknowledges that her evidence would be material. Other than the bald assertion that Ms. L.G. is an “essential” witness for the Crown, there is nothing further that would assist the court in appreciating the nature of her evidence in terms of it being “essential”.

[29] Paragraph 3(b) of the supporting affidavit speaks to the witness being the mother of the complainant; the former spouse of the accused; and that all three resided together during the timeframe set out in the counts charged, February 13, 1991 to February 12, 2003. The Crown acknowledged that Ms. L.G. would not be testifying that she observed any of the impropriety with which the accused is charged.

[30] Ultimately, the Crown conceded that the application is a cost-based matter, and that the grounds derive from s. 714.1(b) of the Criminal Code, namely the costs to be incurred “if the witness had to be physically present”. The cost is not one that would accrue to the witness personally as a Crown witness.

Decision

[31] I am required to reach “the opinion that it would be appropriate in all the circumstances” to grant the discretionary relief sought by the Crown in this case. It is evident that it would be significantly less expensive to permit Ms. L.G. to testify by closed circuit video. In this matter, it may have been much less expensive in terms of airfare had the arrangements been made in a timely fashion, weeks or months ago. We have invested three days of scheduled trial time on this matter, and in my view, of equal or greater value than the cost of having the witness here, and particularly if her evidence is as “essential” as portrayed in the supporting affidavit and absent any particulars thereof.

[32] Having regard to all of the foregoing factors enunciated under both the leave issue and the substantive issue, I conclude that it would be inappropriate to grant the relief sought in this matter.

McMillan J.

Released: January 24, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.W.M.

ENDORSEMENT ON S. 714.1 APPLICATION

McMillan J.

Released: January 24, 2019