Court File and Parties
COURT FILE NO.: CR-19-10000631-0000
DATE: 20201126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
RICHARD ISAAC
Robert Wright and Tania Monteiro, for the Crown
Daniel Brodsky and Taro Inoue, for the Accused
HEARD: September 14 and 15, 2020
RULING ON APPLICATION TO RECEIVE EVIDENCE BY VIDEO CONFERENCE- S. 714.1 OF THE CRIMINAL CODE
b.p.o’marra j.
[1] The accused is charged with the second degree murder of twenty-seven year old Victoria Selby-Readman. Her badly-beaten and decomposing body was found on June 12, 2018 in the apartment she shared with the accused. They were not involved in a romantic relationship. The accused was arrested on June 16, 2018. The anticipated issues at trial included reference to an alternate suspect. There would also be important forensic issues related to blood spatter at the scene where the victim’s body was found and DNA found under the victim’s fingernails for which the accused cannot be eliminated as the source. A pivotal witness for the Crown on those forensic issues would be forensic biologist Brian Peck who works at the Centre of Forensic Sciences (CFS).
[2] The Crown applied pursuant to s. 714.1 of the Criminal Code for an order permitting Brian Peck to testify before the jury by video conference. The defence was opposed. On September 15, 2020 I allowed the application. These are my reasons.
[3] In support of the application the Crown filed an affidavit of Detective Paul Worden of Toronto Police Service. He worked in the homicide office and was the officer in charge of this investigation. The affidavit was based on information received by him. The defence did not ask to cross-examine Detective Worden. The information in the affidavit included the following:
• Brian Peck is a forensic biologist who would be presented as an expert to provide opinion evidence related to DNA analysis and interpretation, including the deposit, transfer and persistence of bodily fluids and DNA;
• In light of the Covid-19 situation the CFS requests a blanket order for experts employed there to provide opinion evidence by video rather than in-person attendances in court. This would significantly reduce the threat of spreading the virus to employees at the CFS as well as to all of the participants in criminal trials, including staff, counsel, jurors and the judiciary;
• Experts from the CFS provide evidence in approximately 600-700 cases each year in courts of both trial levels in Ontario;
• Permitting experts to testify by video conference would increase the availability of those witnesses for consultation with counsel for both Crown and defence as well as availability for court; and
• The CFS has the necessary computer equipment to provide remote testimony.
[4] The Crown advised that there would be multiple screens throughout the courtroom for viewing by all participants in the process. The necessity to rearrange the traditional positions of counsel, jurors, witnesses and the judge for the trial in the Covid-19 era may actually commend itself to the witness being viewed by all on a screen rather than in person. The exhibits will be presented electronically and can be shown on a split-screen with the witness in chief or cross-examination.
[5] The defence opposed the application in part because this could be a “floodgates” ruling that would permit witnesses to simply prefer not to attend in person in other cases. The defence also properly conceded that there is no constitutional right to confront witnesses in person. R. v. Levogiannis, 1990 CanLII 6873 (ON CA), 1 O.R. (3d) 351, [1990] O.J.No. 2312 ( C.A.).
[6] The judicial discretion to permit a witness in Canada to testify by remote video is set out in s. 714.1 of the Criminal Code with a non-exhaustive list of circumstances to be considered:
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 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.
[7] I am satisfied that it is appropriate to make the order in this case.
[8] The proliferation of remote testimony in trial courts across Canada is not the opening of floodgates where the whim of a witness will determine the issue. This is especially so in the months since Covid-19 cast its long shadow over society in general and the administration of justice in particular. In the case before me the credibility or even reliability of this expert witness may not be contentious. His qualifications to provide expert opinion evidence are not in dispute. There is no suggestion that the right to make full answer and defence will be negatively impacted. If the quality of the audio or video feed is substandard it may be necessary to revisit this issue and require the witness to attend in person. There is a significant benefit to the administration of justice in the increased availability of such expert witnesses for consultation with counsel and to testify if they are not required to travel around this large province to attend courts in person.
RESULT
[9] The application is allowed.
O’Marra J.
B.P.O’MARRA J.
Released: November 26, 2020
COURT FILE NO.: CR-19-10000631-0000
DATE: 20201126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD ISAAC
RULING ON APPLICATION TO RECEIVE EVIDENCE BY VIDEO CONFERENCE- S. 714.1 OF THE CRIMINAL CODE
B.P.O’MARRA J.
Released: November 26, 2020