COURT FILE NO.: CR-19-40000644

DATE: 2020-09-01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: her majesty the queen

AND:

Brandon mapp-farouk, Respondent

BEFORE: S.F. Dunphy J.

COUNSEL: Georgette Gaganiaras, for the Crown

Keiisha-Anne Pillai, for the Respondent

HEARD at Toronto: August 20, 2020

REASONS FOR DECISION

[1] This is a motion pursuant to s. 714.2 of the Criminal Code in respect of the Crown’s notice of intention to call Ms. Juann Mapp (who resides outside of Canada) to give evidence by way of videoconference. The respondent has filed a Notice of Response to that proposal and asks this court to find that, in all the circumstances of this case, receiving that evidence by way of videoconference would be contrary to the principles of fundamental justice.

[2] At the close of the hearing, I ruled that the respondent accused had not discharged his onus of satisfying me that the reception of the evidence of Ms. Mapp would be contrary to the principles of fundamental justice and that, accordingly, her evidence shall be received by videoconference pursuant to s. 714.2(1) of the Criminal Code. I indicated at the time that my written reasons would follow. These are those reasons.

Background facts

[3] Mr. Brandon Mapp-Farouk is charged with a variety of firearms offences arising from the alleged discovery by his mother of a loaded firearm in a backpack belonging to him in an apartment the two shared at the relevant time. It is alleged that she discovered the firearm after searching her son’s backpack, removed it from the backpack and asked the landlord to summon police. It is plain that Ms. Juann Mapp’s testimony – for she is the mother in question – will be critical testimony at the trial. It is doubtful that the trial could proceed at all without her evidence. It was she who discovered the firearm, who removed it from the backpack and who caused her landlord to summon police.

[4] The trial is scheduled to be held before a jury on September 14, 2020 – less than a month from now.

[5] The relevant circumstances concerning Ms. Mapp as a prospective witness include the following:

a. At all material times, Ms. Mapp has been willing to provide her evidence at trial and remains willing to do so if her concerns in relation to the pandemic situation can be addressed. As such, she has not received a formal subpoena;

b. Ms. Mapp currently resides in Barbados;

c. Until a couple of weeks ago, both parties labored under the mistaken understanding that Ms. Mapp maintained her tenancy of the apartment she formerly shared with her son in Toronto. In fact, she no longer maintains a residence in Toronto and has returned to Barbados;

d. While willing to provide evidence by way of videoconference, Ms. Mapp is fearful of leaving her safe surroundings at her current home and is no longer willing to undertake the risk of travelling to Toronto for purposes of the trial having regard to the risk associated with that undertaking during the current COVID-19 pandemic; and

e. Ms. Mapp has access to an internet connection in her Barbados home, has experience in using Skype and is willing to provide her evidence by that or a similar means that would not require her to undertake travel to Toronto at this time.

Issue to be determined

[6] Would the reception of Ms. Mapp’s evidence at trial by way of videoconference be contrary to the principles of fundamental justice?

Analysis and discussion

[7] While the Crown filed its Application Record herein as “applicant” to which the accused responded with his Notice of Response, it would appear that s. 714.2 of the Criminal Code contemplates the reverse situation. Section 714.2 provides that the court “shall receive” the videoconference evidence of a witness outside Canada if the required notice is given “unless” another party “satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice”. The party seeking to call the evidence – in this case the Crown – is required to give advance notice of that intention by s. 714.2(2) of the Criminal Code, but it is the party seeking to oppose the admission of that evidence who bears the onus of seeking relief from the Court. Nothing turns on the order in which the documents were filed in this case or on which party styled itself as “applicant” and as “respondent”.

(a) Scheme of the Act

[8] The regime that applies to the videoconference evidence of an in-country witness is quite different from that which applies to an out-of-country witness or to audioconference evidence of a witness outside Canada. The differences between them are meaningful and shed light upon the intentions of Parliament in the case before me.

[9] Section 714.1 of the Criminal Code prescribes a single regime for both audioconference and videoconference testimony of a witness who is present in Canada. Where the witness is within Canada, the onus is on the party calling the witness to satisfy the court that the proposed means of giving evidence (whether by audioconference or videoconference) “would be appropriate having regard to all the circumstances” including the seven considerations listed. The same regime applies for all intents and purposes where it is proposed to receive the testimony of an out-of-country witness by way of audioconference pursuant to s. 714.3 of the Criminal Code.

[10] By contrast, s. 714.2 of the Criminal Code places the shoe on the other foot in the case of videoconference evidence proposed to be received from an out-of-country witness. Providing the requisite advance notice is given, the party opposing the receipt of the evidence bears the onus of satisfying the court that this method of receiving the evidence “would be contrary to the principles of fundamental justice”.

[11] Some fairly straightforward observations flow from the contrast and comparison of these three related provisions:

a. Parliament has recognized that the quality of videoconference evidence – unlike audioconference evidence – is of a quality sufficiently similar to in-person evidence that a reverse onus is appropriate in the case of an out-of-country witness. By contrast, audioconference evidence of an out-of-country witness is only to be received if the proponent is able to convince the court that its reception is “appropriate having regard to all the circumstances”. One of those circumstances would presumably be the possibility of obtaining higher quality videoconference evidence from the same witness instead (where the reverse onus of s.714.2 would apply);

b. The “contrary to the principles of fundamental justice” test in s. 714.2 of the Criminal Code sets a somewhat higher barrier to the exclusion of such evidence than the “appropriate having regard to all the circumstances” standard applicable to the reception of remote evidence in s. 714.1 and s. 714.3 of the Criminal Code;

c. The three referenced provisions recognize that the court is required to undertake a balancing exercise having regard to the distinctions that exist – both legal and practical – in relation to the compellability of witnesses within Canada and outside our borders. In the latter case, the obligations of witnesses to assist our courts are governed by other legal systems and dependent upon the degree of cooperation and assistance available under those systems (as well as potential delay) whereas Canadian law can and does impose a higher degree of responsibility upon residents of Canada in regard to assisting in criminal proceedings in this country.

[12] In seeking to persuade me to preclude the reception of Ms. Mapp’s evidence by way of videoconference, the accused raised a number of grounds which alone or in combination I was urged to find warranted a finding that the proposed videoconference evidence of Ms. Mapp would be contrary to the principles of fundamental justice. I shall consider each of these in turn below.

(b) Adequacy of Technology

[13] It was suggested that the proposed use of the internet and Skype (or something similar) by the witness raises a risk that the link will be choppy or otherwise inadequate. Such a potentially poor-quality connection would be a distraction and impede the ability of the trier of fact adequately to perform the task of assessing the credibility and reliability of the witness and the evidence offered.

[14] In my view, this suggestion places the cart before the horse.

[15] The term “videoconference” is defined by s. 2 of the Criminal Code to mean “any means of telecommunication that allows the judge … and any individual to engage in simultaneous visual and oral communication in a proceeding”. In enacting s. 714.2 of the Criminal Code, Parliament has clearly been satisfied that videoconference technology has advanced to the point where such evidence is at least potentially capable of offering a reasonable and adequate substitute for the more traditional “in person” form of trial testimony. Indeed, this provision has been in the Criminal Code since 1999 and telecommunications technology has improved quite considerably over the intervening years. The experience of this and other courts in conducting virtual proceedings using “Zoom” and other similar technologies to cope with the current pandemic has gone a long way to convincing bench and bar that virtual court proceedings are both possible and of a degree of quality and ease of use that few would have thought possible only a few years ago.

[16] It is also to be noted that, pursuant to s. 714.41 of the Criminal Code, the court may “at any time” cease the use of any technological means authorized by ss. 714.1, 714.2 or 714.3 “and take any measure that the court considers appropriate in the circumstances to have the witness give evidence”.

[17] It follows from these two provisions that the trial judge retains at all times the necessary jurisdiction and discretion to monitor the quality of the evidence as it is actually being received. Should a choppy or inadequate connection impair the quality of the evidence being received to the point that action to safeguard the fairness of the proceeding becomes necessary, adequate and appropriate remedies exist. Mere speculation that a connection might prove inadequate is not a sufficient ground to satisfy the onus prescribed by s. 714.2 of the Criminal Code. There is no reason at present to conclude that the technology available cannot be made to work to a reasonable level.

(c) Assessment of Credibility of a Key Witness

[18] The defence points out that the Crown’s case is almost completely dependent upon the evidence of Ms. Mapp who is alleged to have discovered the firearm and removed it from the backpack in which it was found. As such, the ability of the accused to make full answer and defence to the charges will be critically tied to his ability to probe the credibility and reliability of Ms. Mapp and the evidence she will give. The defence urged me to find that this factor is even more critical given the fact that this case is to be tried before a jury. Jurors, it was suggested, will be less experienced in assessing demeanor and credibility over a video link and may be inclined to attribute importance to the fact that the witness is not present in the courtroom.

[19] The physical presence of a witness at trial may be desirable but it has never been the only means of obtaining evidence for purposes of a criminal trial. Our system of justice has long admitted exceptions to the general rule. For example, various types of hearsay evidence or evidence given by a witness under oath in prior proceedings may be admissible in some cases. Minors may in some cases testify remotely or behind a screen.

[20] While exceptions to the in-person confrontation of witnesses exist, there can be little doubt that our system of justice has traditionally considered the ability of an accused person to confront his or her accuser in the presence of the trier of fact as the “gold standard” for testing credibility. Of course, these traditions evolved at a time where the level of available technology that offered few if any realistic alternatives.

[21] Section 714.2 of the Criminal Code recognizes that the virtual presence of a witness in court by way of videoconference is sufficiently capable of being a substitute for in-person testimony in the case of witnesses located abroad that it is presumed to be acceptable subject only to this method being shown to be contrary to the principles of fundamental justice on the particular facts of an individual case.

[22] The defence refers to the decision of the Nova Scotia Court of Appeal in R. v. S.D.L., 2017 NSCA 58 where it was suggested that videoconference evidence should be received only in exceptional cases impacting the proposed witness where credibility is an issue with mere inconvenience to the witness not being sufficient. While S.D.L. concerned a witness in Canada, the defence suggested that the reasoning applied in that case to s. 714.1 might nevertheless be of some weight in considering s. 714.2.

[23] In enacting s. 714.2 of the Criminal Code, Parliament has not created an exception to be applied to key witnesses or cases where credibility is at issue. Credibility of witnesses is almost always a factor in trials to some degree. The question that I must consider is whether there is anything in the facts of this case that leads me reasonably to conclude that the principles of fundamental justice would be at significant risk of being violated by receiving the evidence in the manner proposed and presumptively authorized by Parliament.

[24] The goal of the trial process is truth-seeking and fairness. That does not mean that there may not be cases where issues of credibility are so acute and central that it appears that only a face-to-face confrontation would be capable of satisfying the principles of fundamental justice. Every case depends on its facts. However, it would be an error to approach the analysis from the perspective that the mere existence of credibility as an issue alters the nature of the analysis. It does not.

[25] In my view, there is simply no reason for me to infer that the defence will not be able to make full answer and defence by challenging the credibility or reliability of Ms. Mapp’s evidence in cross-examination by videoconference. As noted earlier, the trial judge retains the full discretion to monitor the proceedings and to safeguard the fairness of the trial should actual experience fail to meet the quality expectations implicit in s.714.2 of the Criminal Code.

[26] There is simply nothing in the record before me from which I might conclude that the accused will be denied a fair opportunity to test the credibility or reliability of the evidence of Ms. Mapp in a virtual setting through a videoconference link.

[27] The defence also suggested that the jury may make inappropriate inferences by reason either of the non-presence of the witness or the informal milieu (i.e. her home) in which it is proposed she give her evidence. Neither objection is a sound one. Any fears as to what inferences a jury may potentially make by reason of either factor can be addressed by a proper charge to the jury should this appear necessary in all of the circumstances. There is no reason to believe that such a charge would not be followed by the jury if indeed the expressed fear of some inappropriate inference is a reasonable one (which assessment properly belongs to the trial judge).

(d) Necessity and convenience of the witness

[28] The Crown urges me to conclude that there is a serious risk – indeed a probability – that Ms. Mapp would simply not agree to attend the trial of this case were I to find that videoconference evidence cannot be received in this case. This is because Ms. Mapp has expressed a definite degree of fear about travelling to Toronto while the pandemic is still extant. It is too late in the day to attempt to compel her attendance by way of subpoena if indeed a Barbadian court would be inclined to issue one at Canada’s request given the current international situation. If this trial date is lost by that reason, it may be a year or longer before another date could be obtained. The Crown also notes that there is no assurance that Ms. Mapp would be allowed to board a plane in either direction and that she might be required to quarantine for up to two weeks in each direction. There is similarly no certainty that she would be allowed to cross the Canadian border on arrival or that she would be allowed to return home to Barbados when she is done. These are indeed uncertain and exceptional times.

[29] The defence suggests that the pandemic is waning in intensity and Ontario is now at Phase III and with three weeks to go before trial, there is still time to quarantine prior to trial.

[30] I have no hesitation in concluding that there is indeed a very real risk that Ms. Mapp’s evidence would be lost were in not made available at trial by way of videoconference. Apart from the very real uncertainties that arise from closed borders and cancelled flights, the prospect of up to a month of quarantine upon a witness is more than a simple matter of inconvenience, particularly where a reasonable alternative such as videoconference evidence is available.

[31] The defence suggested that the risk of Ms. Mapp being unable to testify in person could be accommodated by the simple expedient of delaying the trial. As the Supreme Court of Canada noted in R. v. Jordan, 2016 SCC 27, there is a social interest in having trials completed within a reasonable time that goes beyond the purely private interest of the accused[^1]. The backlogs that are growing within our court system as a result of the pandemic are already considerable and will require a long time to be worked through – adjournments of matters that are ready for trial on the eve of trial in favour of a later date runs the risk of losing available court time now if another trial is not ready to take its place on short notice while simultaneously adding to the future backlog and further burdening an already burdened criminal justice system. That is not a decision to be lightly taken.

[32] The comments I have made above regarding the difference between the regime applicable to witnesses inside and outside of Canada bear repeating here. The test that I am required to apply to this question is whether the reception of the proposed evidence by videoconference “would be contrary to the principles of fundamental justice”. Those principles are not focused solely upon the interests of the accused person but consider the broader question of the fairness of the truth-seeking exercise and require a balancing of both public and private interests. What might be described as the “convenience of the witness” enters into that analysis in this case to the extent that the prospect of losing access to the evidence of the witness is one that the court must consider in relation to the principles of fundamental justice. There is a very real prospect that Ms. Mapp’s evidence would be lost in this case were it not received by way of videoconference. This circumstance does not tilt the scales in favour of the position of the defence but further tilts them in the opposite direction.

[33] Whether this last factor would be decisive in isolation I need not say because I have found none of the arguments advanced by the defence approach the standard of demonstrating that the reception at trial of the videoconference evidence of Ms. Mapp would be contrary to the principles of fundamental justice. While it may be preferable to receive her evidence in person, there is simply no basis on which I might conclude that receiving it in the proposed manner would be contrary to the principles of fundamental justice.

Disposition

[34] In the result I found that the defence failed to discharge its onus under s. 714.2 of the Criminal Code in relation to the proposed testimony of Ms. Mapp and that accordingly her testimony shall be received at trial by way of videoconference as that provision requires. Of course, the onus lies upon the party leading the evidence to ensure that adequate testing of equipment and connections is performed in advance of the trial to ensure that the evidence actually tendered satisfies the requirements of a videoconference under s. 2 of the Criminal Code.

S.F. Dunphy J.

Date: September 1, 2020

[^1]: Jordan at paragraphs 2-3