FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] Daylo Robinson, Rebecca Horton and Tyler Vickers are charged with committing numerous offences relating to human trafficking. The Crown alleges that two complainants, W and D, were forced to engage in the sex trade by the accused. W also alleges that she was sexually assaulted by Mr. Vickers on several occasions.

[2] All three accused have elected trial by judge and jury which is scheduled to commence on 10 May 2021.

[3] The Crown applies, under s. 714.2 of the Criminal Code, R.S.C. 1985, c. C-46, to have W testify using Zoom technology, a videoconferencing service already in widespread use in the province as a result of measures taken to ensure the justice system continues functioning during the COVID-19 pandemic.

[4] W is currently residing outside Canada. The Crown’s application record signifies that she is willing to testify from her current location and has no desire to travel during the pandemic. As one of the Crown’s two main witnesses, her evidence is critical to the Crown proving its case beyond a reasonable doubt.

[5] All three accused oppose the application on the basis that an order would be contrary to the principles of fundamental justice. Their opposition centres on W’s behaviour at the preliminary inquiry where she proved to be a disruptive witness capable of absenting herself from proceedings. The respondents argue that if W is permitted to testify from home, there would be no control exercised over her testimony and the court process when she testifies.

LEGAL PRINCIPLES

[6] Testimony by audio or video is governed by ss. 714.1 to 714.3 of the Criminal Code. Section 714.1 deals with the video/audio testimony of witnesses residing in Canada whereas ss. 714.2 and 714.3 control video and audio conferencing of witnesses outside the country.

[7] Section 714.1 of the Criminal Code governs the potential remote testimony of a witness in Canada and is reproduced as follows:

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;

(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.

[8] Section 714.2 of the Criminal Code deals with situations where a witness is outside Canada and provides:

714.2 (1) A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

[9] The most obvious difference between the two is that s. 714.1 confers a discretionary power upon the trial judge whereas s. 714.2 mandates the reception of videoconference evidence subject to a party demonstrating why doing so would be contrary to the principles of fundamental justice.

[10] The mandatory nature of the section means that the onus falls on the parties opposing the application. The wording of the section acknowledges the principle that a witness cannot be compelled to return to Canada to testify: R. v. Schertzer, 2010 ONSC 6686, at para. 34; R. v. Singh, 2015 ONSC 6823, at para. 52.

[11] Another difference between the sections is that the s. 714.1 test is based on the balancing of statutory factors whereas s. 714.2 imposes a significantly more stringent threshold to overcome: R. v. Mapp-Farouk, 2020 ONSC 5040, at paras. 8-11. Accordingly, some of the cases relied upon by the respondents such as R. v. Brown, 2021 ONCJ 123 and R. v. K.S., 2020 ONCJ 328, which concern s. 714.1, are of limited assistance.

ANALYSIS

[12] There is no doubt that the impact of the pandemic as a global emergency has dramatically impacted all aspects of life. Since March 2020, the courts have gone to great lengths to safeguard the health of all justice participants from the dangers created by the COVID-19 virus. Many of the measures initiated at the start of the pandemic remain in place 12 months later. These include the extensive use of videoconferencing for criminal justice hearings.

[13] W’s expressed health concerns are very real and, as already discussed, she cannot be compelled to return to Canada to testify.

[14] I am not persuaded by the respondents’ arguments that her difficult behaviour at the preliminary inquiry justifies the dismissal of the Crown’s application.

[15] As the Crown points out, the right to full answer and defence does not entitle an accused to be in the same physical space or courtroom with a complainant, even when that witness’s credibility is in issue: R. v. Metcalfe, 2018 ONSC 4925, at para. 18; R. v. J.H., 2017 ONSC 3868, at para. 17.

[16] There are clearly situations where complainants are allowed to testify outside the courtroom through video links or behind a screen. In R. v. Husbands, 2018 ONSC 6831, O’Marra J. allowed the Crown’s s. 714.1 application in respect of a witness who had safety concerns for herself and her children.

[17] Like the court in Singh, at para. 56, I accept that the development of video technology permits effective cross-examination of witnesses: the use of Zoom has been commonplace in the justice system since the onset of the pandemic.

[18] I also reject concerns over W’s behaviour and that the ability to control it would be impacted by remote testimony. There is no doubt that W’s conduct at the preliminary inquiry created difficulties. However, I have not been provided with any evidence that this conduct was the result of, or impacted by, W testifying remotely. In other words, W might behave exactly the same way if forced to testify in the courtroom as she did at the preliminary inquiry.

[19] Nor do I agree that W’s conduct, if repeated, would effectively allow W to insulate herself from effective cross-examination. The judge would still maintain control of the proceedings. Failure to respond to questions could be met with warnings of the consequences, including the lack of weight to be given to her testimony and the threat of a contempt order.

[20] Moreover, any disruptions would not reflect well on W or the Crown’s case. A trier of fact observing an uncooperative and difficult witness might be more disposed to question her credibility than believe her evidence. Fundamental justice would be applied through the trial process. In this respect, the Crown is more than aware that it must prepare W thoroughly for trial and ensure that her behaviour at the preliminary inquiry is not repeated.

[21] Accordingly, I reject the respondents submissions.

[22] As well, I am in agreement with my colleague Dunphy J. in Mapp-Farouk in his observations, at para. 32:

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 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.

[23] I find that the respondents have failed to discharge their onus that testimony by videoconference would be contrary to the principles of fundamental justice.

CONDITIONS

[24] The respondents further argue that if the Crown’s application is allowed, W should be ordered to testify from a courthouse or a building associated with the administration of justice.

[25] In making this submission, the respondents point out that the Crown has failed “to provide any rationale” as to why W cannot testify from such a location, what procedures will be in place to ensure W respects the process, or how the court will control matters if W refuses to testify.

[26] I find this argument to be misconceived: as I have already noted, the burden falls on the respondents to show why testifying from a remote location would be contrary to fundamental justice. Section 714.2 does not impose a requirement that a witness must testify in a courtroom or any specific type of building. Nor have the respondents shown why that might be necessary.

[27] It is somewhat ironic that the respondents ask for W to testify under the same conditions as she did in the preliminary inquiry – where she appeared remotely from a courthouse – and, at the same time, oppose the application on the basis that her behaviour at that hearing might be repeated.

[28] I do not find it necessary to order W to testify from a specific location and she may do so from her home. However, I will impose the following conditions to be observed when she testifies:

W must be alone in a private room;
At the outset of proceedings and at any time during her testimony when requested to do so by the trial judge, W must move the camera on the device she is using to demonstrate that no one else is present;
All other electronic devices in the room must be turned off including all mobile phones;
W cannot use the keyboard, mouse or trackpad of the device she is using when testifying;
W must remain on camera at all times during her testimony;
W will not be permitted to interact with anyone during recesses in her evidence;
W will be warned that no recording of the hearing is permissible.

[29] For these reasons, the Crown’s s. 714.2 application is granted.

S.A.Q. Akhtar J.

Released: 1 April 2021

COURT FILE NO.: CR-20-10000202-0000

DATE: 20210401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAYLO ROBINSON, REBECCA HORTON AND TYLER VICKERS

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Robinson, 2021 ONSC 2447

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

LEGAL PRINCIPLES

ANALYSIS

CONDITIONS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 4