R. v. Knelsen, 2020 ONSC 5977

COURT FILE NO.: CR 11/19

DATE: 2020/10/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PETER KNELSEN

Applicant/Accused

Lisa Defoe, for the Crown

Deepa Negandhi, for the Applicant/Accused

HEARD: September 24, 2020

RULING ON APPLICATION FOR REMOTE TESTIMONY OF WITNESS FROM THE CENTRE SCIENCES

JUSTICE S. K. CAMPBELL

Introduction & Background

1The Crown is seeking an order pursuant to section 714.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 that Melinda Matte be permitted to testify remotely in this trial. The request is that the witness be allowed to give her evidence by videoconference from the Centre of Forensic Sciences (“Centre”).

2Ms. Matte is a biology scientist. Her testimony relates to two reports she prepared. The first report is dated January 30, 2018. The other report is dated September 18, 2018. Both reports can be described briefly as being related to DNA. The expertise of Ms. Matte, for the purposes of this is trial admitted.

3The Centre of Forensic Sciences is located in Toronto Ontario. The estimated cost for attendance for a witness from the Centre to St. Thomas is approximately $200 in addition to paid travel time if cross-examination is less than two hours.

4Employees at the Centre has access to applications and technology that are necessary for them to give evidence remotely. It is not challenged that expert testimony by Centre staff has been provided in other proceedings by video conferencing.

5The only evidence on the application was the affidavit of James Scott Curry sworn September 14, 2020. The affiant is an assistant section head in the biology section of the Centre. Attached as Exhibit A to that affidavit is a memorandum from Tony Tessarolo, director, Centre of Forensic Sciences. The memorandum is addressed to Susan Kyle, assistant deputy attorney general. That memo advises that the experts from the Centre are available to provide remote testimony on all types of cases. The memorandum also asked that remote testimony be considered the default option for testimony by Centre experts.

6The application is brought in the context of the current COVID-19 pandemic. I can take judicial notice that COVID-19 has led the government to declare a state of emergency. Since making such a declaration, the province of Ontario has moved through stages of “re-opening”. Currently, there is limited courtroom availability for “in-person” trial. That is one where witnesses attend in a courtroom.

7In St. Thomas there are two courtrooms available for use in the Superior Court of Justice. One of those courtrooms, courtroom 200, has been equipped to conduct jury selection and jury trials. To accomplish the selection and conduct a jury trial, significant accommodations have been made with respect to the courthouse and the courtroom. Plexiglass barriers have been installed, pathways have been marked and hand sanitizers have been installed. Social distancing and the wearing of face masks or other PPE is strictly enforced. Before entering the courthouse, all persons have to proceed through a COVID screening.

Section 714.1 of the Criminal Code

8Section 714.1 of the Criminal Code provides:

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 having regard to all the circumstances, including

a) The location and personal circumstances of the witness;

b) The costs that would be incurred if the witness were to appear personally;

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 and public hearing;

f) The nature and seriousness of the offence; and

g) 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 to be given by audioconference.

Position of the Crown

9Crown counsel argues that Miss Matte is a non-contentious expert witness. She will likely refer a limited number of documents in the course of her testimony. She will reference the reports she authored. Ms. Matte can testify from a location at the Centre that is appropriate having regard to the nature of the proceeding and the technology required.

10The emphasis of the Crown’s position is that remote testimony would address any health and safety concerns raised as a result of the COVID-19 pandemic. That is the default position of the Centre. The court ought to accept the Centre’s request. Counsel also noted that the costs could be avoided if the witness was able to attend remotely.

Position of the Defence

11Counsel for the accused argued that the Crown had not met its onus under section 714.1 of the Criminal Code. Counsel observed that while there was a general concern for all justice participants at this time, there was no specific information or concerns with respect to this witness. The province of Ontario has deemed it safe to reopen courts. All other persons involved in the trial are expected to attend including members of the public, a jury panel and ultimately a jury.

12It was counsel’s position that the evidence provided was not sufficient to meet the threshold established by section 714.1. Counsel asked the court to consider and a balance all of the specific factors set out in the section and argued that once that had been done the application would be dismissed.

Analysis

13As noted the evidence on this application comes entirely from James Curry, the assistant section head of the biology section of the Centre. He states the attendance of Ms. Matte presents COVID related health and safety concerns for the witness and court participants. He explains this is a “critical concern” for the Centre of Forensic Sciences given that Centre staff are required to provide testimony in court throughout the province.

14There is no evidence of any direct concerns related to Ms. Matte. Specifically, there is no evidence that she has any underlying health conditions or that she is a caregiver for a vulnerable person. There is no evidence that either travel to or attendance at the courthouse in St. Thomas, places Ms. Matte or others she may have come into contact with at an increased risk of contacting COVID-19.

15The starting point of any analysis of this application is section 714.1 of the Criminal Code. That section gives the court a discretion to allow a witness in Canada to give evidence by videoconference if the court concludes it is appropriate having regard to all the circumstances. The section sets out seven specific circumstances. I will comment on those circumstances as follows:

a. The court assumes that Ms. Matter resides in the GTA but has no evidence of her personal circumstances;

b. The costs that would be incurred from Toronto to St. Thomas are, in my view, not a burdensome;

c. The evidence of Ms. Matte is highly technical. Crown counsel stated, without challenge, that her evidence was non-contentious. Defence counsel stated that the cross-examination would likely focus on permissible and non-permissible inferences that can be drawn from her conclusions and findings;

d. I have no concerns as to suitability of the proposed location where the witness would give evidence from;

e. The accused’s right to a fair and public hearing is a significant consideration. As noted above, a number of accommodations have been made to facilitate the re-opening of the courts in St. Thomas; and

f. These are serious offences. If the witness testifies remotely the evidence will be played on a large screen in the courtroom. The jury will not all be in the jury box. 10 of the jury will be distributed throughout the body of the courtroom.

16Some of the authority referred to by Crown counsel considered the judicial notice taken of the COVID pandemic. In my view, that is not controversial. We are all aware that we are presently in the midst of a global pandemic. The judicial system has made significant modifications as a result of the pandemic, in general and specifically, to allow this trial to proceed.

17Other authority provided referred to the allowing of testimony to be given by videoconference to ensure the evidence would be available. Here, there is no suggestion that if Ms. Matte is not allowed to testify remotely, she cannot give her evidence. That is the evidence will not be lost if she is required to attend in person.

18The evidentiary basis for allowing the testimony to proceed by videoconference is not specific to her. That is, it is simply the default position of the Centre of Forensic Sciences. While the reason for that default cannot be ignored, it cannot be the only factor to be considered.

19In my view, the triers of fact, in this case a jury, would benefit from the evidence of Ms. Matte being given in person. The fact that her evidence can be described as significantly technical does not reduce the benefit of receiving it in person. Indeed, I would suggest it may well make her attendance in person more appropriate.

20In the end, when I balance the factors set out in section 714.1 of the Criminal Code, I conclude my decision should not be exercised and I would dismiss the application.