PUBLICATION BAN: A publication ban has been ordered in this case pursuant to s. 486.4(1) of the Criminal Code.
Court File and Parties
COURT FILE NO.: 37/20
DATE: 2020/12/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. J.R.M.[^1]
BEFORE: Justice I.F. Leach
COUNSEL: Heather Donkers, for the Crown Rob Farrington, for the Accused
HEARD: December 14, 2020
ENDORSEMENT
Overview
[1] The accused in this matter is charged with one count of assault contrary to s.266 of the Criminal Code, (“the Code”), and two counts of sexual assault, contrary to s.271 of the Code. The alleged misconduct is said to have taken place during the month of December, in 2018, and on February 18th and 19th of 2019.
[2] Ms J.B., formerly an intimate partner of the accused, is the complainant in relation to all three charges.
[3] The matter currently is scheduled for trial by judge and jury, commencing on March 8, 2021.
[4] This endorsement addresses an application brought by the Crown, pursuant to s.486.2(2) of the Code, for an order permitting the complainant to testify outside the court room by way of closed-circuit television; i.e., “CCTV”. The application is opposed by the accused.
Evidence – Further background
[5] Formal evidence was presented, in relation to the application, through two means:
a. an affidavit filed by the Crown and sworn by Police Constable Heather Harder, who attended at the hearing of the application to make herself available for cross-examination, which defence counsel nevertheless did not seek to conduct; and
b. oral testimony provided by the accused, who was called as a voir dire witness by defence counsel before being cross-examined by Crown counsel.
[6] Constable Harder’s affidavit, expressly made on the basis of advice and belief, is relatively brief and includes the following indications:
a. that the complainant is over the age of 18, and has expressed a desire to testify by CCTV in relation to this matter;
b. that the underlying allegations against the accused involve assault and sexual assault in a domestic context;
c. that the complainant has indicated that she was prescribed anxiety medications as a result of the alleged events and, while no longer taking those medications, still feels anxious when speaking about those events;
d. that the complainant has indicated that testifying in the court room will cause her severe anxiety, causing her to vomit;
e. that the complainant has indicated that she will not be able to testify in this matter if she is forced to testify in the courtroom; and
f. that, if the complainant had to testify in the court room, she would not be able to give a full account of the allegations, due to her anxiety.
[7] Testimony provided by the accused included the following indications:
a. While he and the complainant were not formally married, they did live together in a relationship that produced one son. Their cohabitation continued up until the date of their separation on February 19, 2020, when the accused was arrested and charged in relation to the allegations underlying this proceeding.
b. Since that date of separation, the complainant and the accused have been living separate and apart from each other, and there has been ongoing family law litigation between them relating to their son; i.e., to address issues relating to child custody, access, and child support being paid by the accused. By way of further information in that regard:
i. The family law litigation has proceeded in various court rooms of the London courthouse; i.e., the same building in which this criminal proceeding is being heard. Throughout the family law litigation, the complainant has been represented by counsel, while the accused has been self-representing.
ii. According to a list compiled by the accused, to date there have been nine court appearances in relation to the family law litigation, all of which took place on various dates between April 24th and November 26th of 2019.[^2]
iii. The accused could not recall the nature of those court appearances with certainty, but believes some of them were for conferences while others involved motions.
iv. The accused candidly acknowledged that the complainant did not attend all of those court appearances. However, he believes she attended approximately five of the nine appearances; i.e., making approximately five occasions when the accused was present with the complainant and her counsel in the same court room. On such occasions:
The accused says that he and the complainant were required to sit and/or stand at counsel tables, at a distance from each other similar to that separating counsel appearing in the proceeding before me; i.e., a distance of approximately 10 to 15 feet.
The accused could not recall with certainty whether or not the complainant’s counsel in the family law litigation always sat between the parties. He believes that happened on some of the occasions, but not on others.
The accused says that, during such occasions, the complainant never became visually emotional, (e.g., by becoming tearful, shaking or “anything of that nature”), never asked the court to take a break, and never expressed to the court – either directly or through her counsel – any anxiety or reluctance to take part in the proceedings.
v. While the criminal charges being addressed by this proceeding have been mentioned in the course of the family law litigation, they generally have not been a “part of” the family law litigation, according to the accused. In that regard:
The accused acknowledged and agreed that the complainant has not had to testify about the criminal allegations in the family law proceedings.
More generally, the accused confirmed that, to date, none of the court appearances in the family law litigation have involved either party providing oral testimony.
vi. Trial of the family law proceeding had been scheduled to proceed in September of 2020. However, that trial has been postponed and delayed by challenges with court scheduling created by the ongoing COVID-19 pandemic.
c. The accused could not recall “off the top of his head” the last court appearance in the family law litigation attended by the complainant. However, he candidly acknowledged that, since all of the court appearances in the family law litigation had taken place on or before November 26, 2019, he and the complainant had not seen each other for over a year by the time of his appearance before me on December 14, 2020.
[8] While not something addressed by the formal evidence tendered in relation to the Crown’s application, it was agreed and acknowledged by counsel during the course of submissions that the complainant is currently 35 years old.
[9] It was also agreed and acknowledged by counsel during the course of submissions before me that, if I granted the order requested by the Crown, the CCTV facilities used for the provision of the complainant’s testimony from outside the court room would be the same routinely used in the London court house, before the COVID-19 pandemic, for the provision of such remote testimony. In particular:
a. the complainant and counsel would attend in a separate room, located near the court room where the trial will proceed, in order to conduct examination, cross-examination and re-examination of the complainant;
b. that separate room is equipped with CCTV cameras and a monitor, permitting those remaining in the court room to see and hear the complainant’s testimony, via monitors in the court room, while counsel and the complainant are able to see and hear the trial judge in the court room; and
c. if the accused needs to consult with his counsel during the provision of such testimony via CCTV, that can be indicated to the trial judge, who has the ability to pause the proceedings to allow such consultation to take place.
[10] Beyond that formally tendered evidence, agreement concerning the complainant’s age, and agreement concerning the CCTV arrangements that would be used if the requested order was granted, Crown counsel included a number of further indications in the unsworn “Detailed Statement” she submitted with the Crown’s application. In particular, that unsworn statement included indications:
a. that the complainant is saying that her children witnessed the accused’s alleged assault on the complainant, which involved choking;
b. that the complainant has expressed fear of testifying in front of the accused;
c. that the complainant says the accused is abusive and has a controlling demeanour; and
d. that the complainant has expressed worry that, if forced to testify in front of the accused, her anxiety would become debilitating.
Legislation and general principles
[11] Before proceeding to consideration of party positions, and an assessment of whether the requested order should be granted, I pause to note a number of Code provisions and general principles applicable to such determinations.
[12] Pursuant to s.650(1) of the Code, an accused, other than an organization, generally “shall be present during the whole of his or her trial”.
[13] I have described the requirement of s.650(1) as being “generally” applicable, in part because s.650(1) itself internally refers to a number of indicated exceptions; i.e., to a number of described and cross-referenced situations where an accused may appear by CCTV or designated counsel for any part of a trial other than a part in which the evidence of a witness is taken. None of those exceptions apply to the Crown’s current request.
[14] There nevertheless are other provisions of the Code which permit strict application of s.650(1) to be relaxed and/or modified in other specified situations; e.g., to facilitate the ability of witnesses to provide testimony.
[15] They include the provisions of s.486.2 of the Code, which reads in part as follows:
486.2 (1) Despite section 650, in any proceedings against an accused, the judge … shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, … order that the witness testify outside the court room … , unless the judge … is of the opinion that the order would interfere with the proper administration of justice.
(2) Despite section 650, in any proceedings against an accused, the judge … may, on application of the prosecutor in respect of a witness, … order that the witness testify outside the court room … if the judge … 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.
(2.1) An application referred to in subsection (1) or (2) may be made … before the proceedings begin, to the judge … who will preside at the proceedings … .
(3) In determining whether to make an order under subsection (2), the judge … 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; …
(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 … considers relevant.[^3]
(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 … 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.
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
[16] In this case, Crown counsel made it clear in her submissions that there is no suggestion being made that the underlying circumstances warrant application of s.486.2(1) of the Code; i.e., that Ms B., who is over the age of 18, “is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability”. [Emphasis added.] The Crown instead advances its application relying on s.486.2(2) of the Code.
[17] General principles established by court decisions interpreting and applying s.486.2, before and after amendments made to the section on July 22, 2015, include the following:
a. While an accused normally has the right to be in the sight of witnesses who testify against him or her, (frequently described as a “right” to face one’s accusers), that right is not absolute. It is subject to qualification in the interests of justice, and the absence of a literal “face to face” confrontation, (e.g., through an order made pursuant to s.486.2 of the Code), does not infringe any principle of fundamental justice. Even when an order is made pursuant to s.486.2, the requisite “elements of confrontation” remain, albeit in a more limited form. An order made pursuant to s.486.2 does not inherently compromise an accused’s right to a fair trial, the ability to make full answer and defence, or fundamental justice.[^4]
b. Before permitting a witness to testify outside of court, pursuant to s.486.2 of the Code, a trial judge may hold a voir dire to determine whether such an order is appropriate.[^5]
c. However, in considering applications made pursuant to s.486.2 of the Code, a trial judge has substantial latitude in deciding whether or not a requested order should be made, and the evidence offered in relation to the application need not take any particular form.[^6] Without limiting the generality of the foregoing, direct evidence from the relevant witness is not necessary, and an affidavit provided by a police officer may be sufficient to demonstrate that the requested order should be granted.[^7] Even unsworn statements of counsel, where accepted by the presiding judge, may provide a sufficient foundation for the judge to make a disputed border pursuant to s.486.2 of the Code.[^8]
d. Courts have emphasized that s.486.2(2) previously required that such an order be “necessary to obtain a full and candid account from the witness of the acts complained of”, [emphasis added], whereas the amended provisions, (brought about by the Canadian Victims’ Bill of Rights, S.C. 2015, c.13, or “CVBR”, which enacted a package of amendments to the Code and other laws)[^9], have lowered that threshold somewhat to a less stringent test. In particular:
i. the amended provisions of s.486.2(2) now permit such orders to be made if a judge is of the opinion that the order “would facilitate the giving of a full and candid account by the witness of the acts complained”, [emphasis added], with “facilitate” plainly meaning “to make easy or easier”, “less difficult”, or “more easily achieved”;
ii. the amended provisions also introduced a new, separate and alternative basis for granting the order, whereby a judge may grant such relief if he or she is of the opinion that the requested order “would otherwise be in the interest of the proper administration of justice”;
iii. by lowering the statutory requirements for granting such orders to such a “very low threshold”, Parliament indicated its intention to implement a “considerable shift in the legal landscape” in relation to such matters, and make testifying by CCTV or behind a screen a more commonplace occurrence; and
iv. to obtain an order requested pursuant to s.486.2(2), the Crown accordingly need only demonstrate satisfaction of either branch of the new s.486.2(2) threshold, on a balance of probabilities.[^10]
e. If a judge is of the opinion that the legislated threshold requirements of s.486.2(2) have been met, an order permitting a witness to testify outside the court room should be granted even if use of CCTV arrangements creates potential disadvantage for an accused insofar as cross-examination of the witness may need to be interrupted in a potentially “unwieldy” manner to permit an opportunity for defence counsel and an accused to consult with one another; i.e., in circumstances were the accused is in the court room but defence counsel is in another room cross-examining the witness.[^11]
f. The ability of a complainant to “hold his or her own” during cross-examination in another proceeding does not end the necessary s.486.2(2) inquiry, especially where that other proceeding did not focus on conduct of an intimate and embarrassing nature to the complainant. Moreover, if a judge is of the opinion that the legislated threshold requirements of s.486.2(2) have been met, an order permitting a witness to testify outside of the court room may be granted even if the witness was able to testify about such matters earlier, in the presence of the accused; e.g., at a preliminary hearing.[^12]
g. Concerns about the manner of a witness providing testimony improperly swaying the trier of fact into improper sympathy towards a complainant or prejudice against an accused are eliminated in a judge alone trial.[^13] However, s.486.2(5) of the Code makes it absolutely clear that Parliament contemplated the making of s.486.2(2) orders in the context of criminal jury trials as well, and any concerns about the jury being improperly swayed by the use of such testimonial aids can be addressed by an appropriate judicial instruction to the jury. In that regard, where an order is made pursuant to s.486.2 of the Code in the context of a criminal jury trial, trial judges in this court routinely provide an instruction to the jury indicating that the procedure being used is allowed in such cases for reasons having nothing to do with the guilt or innocence of the accused, (i.e., simply to help the witness give his or her evidence by providing more comfortable surroundings), and that the jury must not draw any inference of any kind from its use. The standard jury instruction goes on to make it clear, in particular, that no adverse inference should be drawn against the accused because the procedure was used; i.e., echoing the prohibition set forth in s.486.2(6) of the Code. Courts should assume that a jury will follow such a judicial instruction, and not form any bias because such testimonial aids are used.[^14]
[18] I think it also worth noting that the Supreme Court of Canada generally has recognized and emphasized:
a. that testifying in a sexual assault case can be traumatizing and harmful to complainants;[^15]
b. that the recent trend in courts has been to remove barriers to the truth-seeking process;[^16] and
c. that to promote the truth-seeking goal of the court process, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.[^17]
[19] I also bear in mind, throughout my consideration of this matter, that the language of s.486.2(2) of the Code is permissive rather than mandatory. In particular, in contrast to the language used by Parliament in s.486.2(1), indicating that judge “shall” make an order under that subsection where the requisite conditions stipulated therein have been established, the language used by Parliament in s.486.2(2) indicates that a judge “may” make an order under that subjection, where the requisite conditions stipulated therein have been established. In other words, a judge making a determination pursuant to s.486.2(2) of the Code has a residual discretion as to whether such an order should be made, even when the statutory prerequisites have been established by the Crown on a balance of probabilities.
Assessment
[20] With the above legislation and general principles in mind, I turn to an assessment of the application made by the Crown in this case, the accused’s opposition to that application, and whether the order requested by the Crown should be made.
[21] In doing so, I turn first to the considerations mandated by s.486.2(3) of the Code.
AGE OF THE WITNESS – s.486.2(3)(a)
[22] As noted above, it was agreed that the complainant currently is 35 years old. She accordingly is of an age that does not inherently suggest any heightened vulnerabilities frequently associated with youth and immaturity, or infirmities frequently experienced by the elderly, that might inhibit or interfere with the complainant’s ability to give a full and candid account of the acts complained of in this proceeding.
THE WITNESS’ MENTAL OR PHYSICAL DISABILITIES – s.486.2(3)(b)
[23] In considering the complainant’s possible “mental or physical disabilities” pursuant to s.486.2(3), I note at the outset that Parliament apparently intended to mandate consideration, in this s.486.2(2) context, of possible mental and/or physical challenges of a witness falling short of the level of “mental or physical disability” independently capable of making such an order mandatory pursuant to the provisions of s.486.2(1) of the Code.
[24] In other words, Parliament seems to have mandated consideration, in the s.486.2(2) context, of possible mental and/or physical challenges of a witness that are less debilitating than those contemplated by s.486.2(1) of the Code.
[25] While defence counsel argued that there was nothing in the record before me to establish any such considerations, (particularly insofar as the evidence was said to fall short of establishing that the complainant suffered from any debilitating fear of the accused, as opposed to mere nervousness or unease felt by most citizens called upon to testify in court), I disagree. Without limiting the generality of the foregoing:
a. The affidavit evidence indicates that the complainant has suffered from anxiety to an extent requiring prescription medication as a result of the events underlying the criminal charges in this proceeding, that she still feels anxious when speaking about those events, and that she would not be able to give a full account of her allegations due to her anxiety.
b. The affidavit evidence also indicates that the complainant’s anxiety in turn induces strong and uncontrollable physical reactions, in the form of vomiting, that she will experience if she attempts to testify in the court room in this proceeding.
c. The statement filed by Crown counsel also indicates that the complainant has expressed worry that, if forced to testify in front of the accused, her anxiety would become debilitating.[^18]
d. In my view, although I saw no reason to question the credibility or reliability of the accused’s testimony presented during the voir dire, and his assertions were not seriously challenged in cross-examination, the testimony he provided did not directly address or contradict the evidence tendered and relied upon by the Crown in relation to the complaint’s professed anxiety, associated vomiting, and/or her inability to testify in a court room - in the accused’s presence - about the events giving rise to this proceeding. To the extent the accused’s voir dire testimony was intended to undermine the Crown’s evidence indirectly, (e.g., by indications that the complainant was able to attend five court appearances in the matrimonial litigation without any visible emotional distress the accused could perceive), I do not think it had that effect. In that regard:
i. In my capacity as a general patent judge of this court, sitting in a circuiting region of the province, I routinely sit in the Unified Family Court in London and St Thomas, and in family court proceedings conducted in the Superior Court in other court centers of the region. I accordingly am very familiar with the environment in which family law litigation conferences and motions take place. Parties generally are not required to attend for the hearing of motions in family law litigation, where evidence has been provided by affidavit, and most parties do not attend the hearing of motions in situations of high conflict between the parties. While parties are required to attend case, settlement and trial management conferences, during which they effectively are obliged to be in the same room with each other, (prior to such conferences being conducted remotely during the COVID-19 pandemic), parties almost invariably have counsel sit between them, (where one or both parties are represented), parties generally are not obliged to interact directly with each other and usually do not do so, (where one or both parties are represented), and represented parties often refrain from speaking unless they are asked to do so by the court. In short, court appearances in family law litigation, prior to trial, frequently require little or no active participation by represented parties such as the complainant, and certainly nothing comparable to the experience of having to testify and be cross-examined in open court, about inherently intimate matters, in the presence of strangers that include 12 jurors who will be deciding the matter. In my view, what the complainant was able to do, in terms of attending five court appearances in the family law litigation, with the accused in the same court room, therefore has very little bearing on her ability to testify in the court room in this jury proceeding about the acts complained of. The accused himself has acknowledged that the family law litigation has not focused on his alleged criminal misconduct which, unlike the family law litigation, centres on alleged acts of an inherently intimate and embarrassing nature to the complainant.
ii. The ability of the accused to comment on any mental or physical distress experienced by the complainant during this or other legal proceedings involving the accused is inherently limited in any event. In particular:
During his isolated observations of the complainant on the five occasions when the complainant attended court in relation to the family law litigation, the accused obviously had no ability to look into the complainant’s subjective state of mind or physical sensations falling short of corresponding overt physical manifestations.
The accused apparently has no knowledge or ability to comment on the complainant’s use of prescription medication to control her anxiety stemming from the alleged underlying events.
The plaintiff admittedly has not seen the complainant at all for more than a year, and accordingly has no current direct knowledge whatsoever about her mental or physical condition.
e. I do not disagree with defence counsel’s submission that setting the bar for such s.486.2(2) orders too low, so as to make them available almost automatically, and simply “rubber stamped” by the court whenever a witness indicates he or she “prefers” not to testify in open court, would be inappropriate. However, I think the evidence in this case goes much further than an indication of mere preference on the part of the complainant. In particular:
i. In my view, anxiety capable of requiring treatment by prescription medication should be regarded as a mental condition, and anxiety-induced vomiting should be regarded as a physical condition, in this context.
ii. Contrary to the submission of defence counsel, in my view a mental and/or physical condition that is debilitating to an extent capable of rendering a witness unable to do something (i.e., to testify in a court room), satisfies the literal definition of a “disability” in this context. Again, the nature of such a disability may fall short of that contemplated by s.486.2(1) of the Code; i.e., a disabling condition sufficiently severe, on its own, to justify and require the making of an order under s.486.2 of the Code. However, such concerns, particularly when combined with other relevant considerations, may be sufficient to satisfy the “new” lowered threshold for granting such s.486.2(2) orders.
iii. Without limiting the generality of the foregoing, I think the evidence before me makes it clear that testifying outside the court room in this proceeding would make it easier for the complainant to give a full and candid account of underlying events; i.e., in terms of helping to allay her anxiety and avoid related vomiting – both of which would interfere with her ability to provide such testimony. As noted above, something that makes it easier for a witness to provide such testimony “facilitates” such testimony, according to the authorities.
[26] These considerations militate in favour of granting the requested order.
NATURE OF THE OFFENCE – s.486.2(2)
[27] Again, the charges against the accused in this proceeding include one account of alleged assault and two counts of alleged sexual assault, said to have been committed by the accused in relation to his former intimate partner and mother of his child. Those are “the acts complained of” in this proceeding.
[28] In oral submissions, defence counsel expressly conceded that the allegations accordingly concern matters of a personal and potentially embarrassing nature.
[29] Defence counsel nevertheless emphasized that the nature of the alleged offences and underlying circumstances in this case were not as serious as those in a number of authorities cited by the Crown; e.g., cases addressing allegations that the complainant was the victim of sustained human trafficking by an accused, or allegations that the complainant had been shot five times and seriously injured by an accused charged with attempted murder, in circumstances where the evidence of the complainant being “fearful” and/or “terrified” of the accused and/or his supporters was stronger and more persuasive compared to this case, favouring the making of an order pursuant to s.486.2 of the Code in those other cases.
[30] In my view, however, arguments that the nature or circumstances of the offence in other cases may provide stronger justification for such an order do little to address or negate the reality that a s.486.2 order almost certainly would make it easier or less difficult for the complainant in this case to give a full and candid account of the particular acts complained of in this case.
[31] In that regard, I think it inappropriate to conclude in a general way, as some authorities have, that “it would be a rare sexual offence case in which a section 486.2(2) Criminal Code order would be declined in relation to a complainant”.[^19] In my view, such an approach runs counter to the “case by case” analysis clearly mandated by the relevant legislative provisions of the Code. It also suggests that the “nature of the offence” will always be given pre-eminence among the mandated considerations set forth in s.486.2(c) of the Code, when there is nothing in the structure or wording of the relevant provisions to suggest Parliament had that intention.
[32] Having said that, there unquestionably is a significant difference between a witness having to testify about alleged sexual assaults the witness is said to have endured and a witness having to testify that he or she was the victim of any number of less serious and less personally invasive criminal offences, (e.g., theft, fraud and other forms of property-related crime), that do not violate a person’s sexual integrity in ways that are inherently intimate.
[33] In this case, the defence was right to concede that the underlying allegations concern matters of a personal and potentially embarrassing nature. In my view, the corollary is that testifying about such matters, and providing a full and candid account in that regard, almost certainly would be easier for the complainant if she is permitted to testify outside the court room via CCTV. More importantly, the evidence tendered by the Crown, (not effectively challenged or contradicted by the defence, in my opinion), indicates that would be so in this case.
NATURE OF ANY RELATIONSHIP BETWEEN THE WITNESS AND THE ACCUSED – s.486.2(3)(d)
[34] As noted above, the complainant is the accused’s former intimate partner, and the mother of his child.
[35] While defence counsel submitted that the evidence indicates the complainant and the accused have been able to engage in ongoing family court proceedings “without any difficulty”, in my view the significance of such interactions has been overstated by the defence in relation to the applicable statutory requirements of s.486.2(2), for the reasons already outlined above.
[36] For present purposes, the focus must be on how the nature of the relationship between the complainant and the accused may impact on the ability of the complainant to give a full and candid account of the acts complained of in this proceeding. In that regard:
a. Because of his relationship with the complainant, the accused inherently has much greater and far more intimate knowledge of the complainant’s strengths and weaknesses, and how his conduct or appearance during the trial might have a bearing on the complainant’s ability to provide a full and candid account of alleged misconduct in his presence, than an accused who had limited or no prior interaction with a complainant beyond the particular event or events giving rise to the criminal proceeding.
b. Similarly, because of her relationship with the accused, the complainant has knowledge and shared experiences with the accused extending well beyond those of a complainant whose interactions with an accused were limited to commission of the alleged misconduct of the accused. Moreover, because the complainant in this case also shares a child with the accused, she – unlike other complainants - also faces the prospect of necessary further interaction with the accused, (if only indirectly through counsel), after she has testified against the accused in this proceeding. It would be surprising to me if the complainant was not inclined to think of such additional matters while in the presence of the accused.
[37] In my view, the nature of the relationship between the witness and the accused in this case therefore invariably gives rise to a good many potential distractions likely to make it more difficult for the complainant to give a full and candid account of the acts complained of if she is required to testify in the court room. Conversely, I think it likely would be easier for the complainant to remain more focused, and provide such a full and candid account, if she is permitted to testify outside the court room via CCTV.
WHETHER THE WITNESS NEEDS THE ORDER FOR HER SECURITY OR TO PROTECT HER FROM INTIMIDATION OR RETALIATION – s.486.2(3)(e)
[38] The sworn affidavit filed by the Crown does not address matters of security and/or need for protection from intimidation or retaliation.
[39] However, as noted above, the unsworn statement provided by Crown counsel indicates that the complainant has expressed fear of testifying in front of the accused, in part because the complainant feels that the accused is “abusive” and has “a controlling demeanour”. While not as powerful as sworn evidence, such indications also are capable of being considered in this context, for the reasons outlined above.
[40] On that basis, such indications support a granting of the requested order, insofar as the complainant obviously would be less fearful and intimidated when testifying if she is permitted to do so outside the court room via CCTV, without having to see or be in the presence of the accused.
NEED TO PROTECT WITNESS IDENTITY – ss.486.2(3)(f) and (f.1)
[41] As noted above, there was no suggestion that ss.486.2(3)(f) or (f.1) had any application or relevance in this case.
SOCIETY’S INTEREST IN ENCOURAGING THE REPORTING OF OFFENCES AND THE PARTICIPATION OF VICTIMS AND WITNESSES IN THE CRIMINAL JUSTICE PROCESS – s.486.2(3)(g)
[42] While emphasizing that “no one disagrees with the sentiments” expressed in s.486.2(3)(g) of the Code, (i.e., insofar as encouraging the reporting of offences and participation of victims and witnesses in the criminal justice process is unquestionably important), defence counsel submitted that the consideration was irrelevant in this case because the complainant has never been a reluctant witness “at any stage of the process”.
[43] In that regard, defence counsel emphasized that the complainant was a “willing participant” in the police investigation, (e.g., by providing statements to the police), and generally has “invested” herself in the criminal justice process. In the submission of defence counsel, the figurative “ship has sailed” in relation to this mandated consideration, in terms of any ongoing relevance.
[44] With respect, I think that submission ignores the reality that the figurative ship has yet to reach its port of destination, in terms of a completed criminal proceeding. In particular:
a. The reporting of offences alone obviously does not ensure a fair and effective criminal justice process; e.g., if a reporting complainant/victim is then unwilling or unable to provide a full and candid account of his or her allegations through his or her witness testimony at trial.
b. In this case, I find it impossible to square the defence assertion that the complainant has never been a reluctant witness “at any stage of the process” with the uncontradicted evidence before me now, clearly indicating that the complainant is reluctant to testify at trial if she is forced to do so in the court room, in the presence of the accused.
[45] As a number of cases have noted and emphasized, “knowledge that, in appropriate cases, a witness and complainant will be able to testify outside of the court room, and thus not have to see the accused, can have the desired effect of encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process”.[^20]
[46] In my view, the evidence before me indicates this is such a case. In particular, that evidence makes it clear the complainant will experience great difficulty giving a full and candid account of the acts complained of if she is required to testify in the court room, in the presence of the accused. Conversely, her ability to do so will be made easier, (i.e., facilitated), if the requested order is made.
ANY OTHER FACTOR THAT THE JUDGE CONSIDERS RELEVANT – s.486.2(3)(h)
[47] By way of other possible factors to be considered, I will only note that defence counsel urged me not to make the requested order in this particular case because allowing the complainant to testify from outside the court room, via CCTV, was said to present a “grave danger” of improperly swaying the jury into having sympathy for the complainant and/or prejudice for the accused, with a corresponding impact on trial fairness, regardless of whatever judicial instructions I might provide to the jury.
[48] In that regard, I think I need only repeat that the Supreme Court of Canada has rejected such propositions. Orders made pursuant to s.486.2 do not inherently impact on trial fairness, and juries are presumed to abide by appropriate judicial instructions not to draw improper inferences from the use of such testimonial aides.
CONCLUSION REGARDING FACILITATION OF WITNESS ACCOUNT
[49] Having reviewed and assessed the considerations mandated by s.486.2(3), I find that the Crown has established, on a balance of probabilities, that granting of the requested order would facilitate the complainant’s giving of a full and candid account of the acts complained of in this criminal proceeding. In my view, the various considerations I have reviewed are either neutral or support such a conclusion, for the reasons I have outlined above.
[50] That finding provides a sufficient basis for granting the requested order pursuant to s.486.2(2) of the Code, subject to the exercise of my residual discretion, and I see no reason why that discretion should be exercised to deny the requested order in the circumstances of this particular case. In my view, the mandated considerations, taken as a whole, clearly militate in favour of the requested order being granted.
[51] In the circumstances, I need not determine whether the Crown also has established, on a balance of probabilities, that granting the requested order would otherwise be in the interest of the proper administration of justice.
Conclusion
[52] For the reasons outlined above, an order will go, pursuant to s.486.2(2) of the Code, permitting the complainant to testify outside the court room by way of closed-circuit television in the manner described above; i.e., in paragraph 9 of this endorsement.
[53] As a concomitant of that order, the jury will be provided with an appropriate mid-trial instruction, in the form described in sub-paragraph 17(g) of this endorsement, immediately before the complainant testifies from outside the court room. That instruction also will be repeated in my final instructions to the jury.
Ian F. Leach
Justice I.F. Leach
Date: December 30, 2020
[^1]: This matter involves two charges of sexual assault, contrary to s.271 of the Criminal Code. However, the endorsements made to date on the relevant indictment include no reference to any order having been made, pursuant to s.486.4 of the Criminal Code, restricting and prohibiting publication of any information capable of identifying the complainant. To the extent such an order has not yet been made, I make one now pursuant to s.486.4(1) of the Criminal Code. To ensure that this endorsement is compliant with those restrictions, I have referred to the accused and complainant herein only by those terms, or through the use of initials.
[^2]: More specifically, the accused says the nine court appearances took place on the following dates in 2019: April 24th, May 19th, June 18th, August 7th and 27th, September 18th, October 2nd and 8th, and November 26th.
[^3]: The considerations mandated by ss.486.2(3)(f) and (f.1) deal with protecting the identity of undercover police officers and witnesses charged with responsibility relating to national security or intelligence, and have no possible application to this case.
[^4]: See R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, at paragraphs 17 and 31-34.
[^5]: See R. v. H. (B.C.) (1990), 1990 CanLII 10964 (MB CA), 58 C.C.C. (3d) 16 (Man.C.A.), at paragraph 31.
[^6]: See R. v. M.(P.), [1990] No. 2313 (C.A.), at paragraph 12; and R. v. Levogiannis, supra, at paragraph 35.
[^7]: See, for example, R. v. Turnbull, 2017 ONCJ 309, at paragraphs 5-6.
[^8]: See R. v. Smith (1993), 1993 ABCA 167, 141 A.R. 241 (C.A.), at paragraph 4.
[^9]: Amongst other provisions of the legislation: • the CVBR’s preamble emphasizes the importance of recognizing that crime has a harmful impact on victims; that the victims of crime deserve to be treated with courtesy, compassion and respect; that the rights of victims need to be considered throughout the criminal justice system; and that consideration of the rights of victims of crime is in the interest of the proper administration of justice; • section 10 of the CVBR provides that “Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the criminal justice system to protect the victim from intimidation and retaliation”; and • section 13 of the CVBR provides that “Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the offence”.
[^10]: See R. v. Jimaleh, [2016] O.J. No. 5133 (S.C.J.), at paragraph 7; R. v. Bemister, [2016] O.J. No. 5467 (S.C.J.), at paragraph 20; R. v. S.(J.), [2016] Y.J. 124 (Terr.Youth.Ct.), at paragraphs 14-16; R. v. O’Hare, 2016 BCPC 362, [2016] B.C.J. No. 2466 (Prov.Ct.), at paragraph 39; R. v. P.(K.), [2017] N.J. No. 69 (Prov.Ct.), at paragraphs 17-19 and 24-28; and R. v. Turnbull, supra, at paragraphs 14-17 and 34. I also think it worth noting that even the higher pre-amendment threshold did not require the Crown to demonstrate that the witness would experience exceptional and inordinate stress without an order permitting the use of such testimonial aids. See R. v. Levogiannis, supra, at paragraph 35.
[^11]: See R. v. Jimaleh, supra, at paragraphs 9-10.
[^12]: See R. v. Turnbull, supra, at paragraphs 10 and 39.
[^13]: See R. v. Levogiannis, supra, at paragraph 38; and R. v. Jimaleh, supra, at paragraph 8.
[^14]: See R. v. Levogiannis, supra, at paragraphs 38-39; and Watt D. (2015), Watts Manual of Criminal Jury Instructions (2nd ed.) Carswell Thomson Reuters.
[^15]: See R. v. R.V., 2019 SCC 41, at paragraph 33.
[^16]: See R. v. Levogiannis, supra, at paragraph 23.
[^17]: See R. v. Levogiannis, supra, at paragraph 14.
[^18]: Although defence counsel emphasized that such assertions did not form part of the sworn affidavit evidence provided to the court, that does not prevent my consideration of them. As noted above, the authorities permit the consideration of unsworn evidence in this particular context.
[^19]: See, for example, R. v. P.(K.), supra, at paragraph 28.
[^20]: See, for example, R. v. S.(J.), supra, at paragraph 25; and R. v. P.(K.), supra, at paragraph 31.
