COURT FILE NO.: CR-17-452
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Morris, for the Crown
- and -
FRANK O’DEA
K. Wildman, for the Accused
HEARD: May 10 & 17, 2021
Reasons for Ruling Permitting Virtual Testimony under s. 714.1 and for Refusing Adjournment
BALTMAN J.
Introduction
[1] On April 20, 2015, the Accused called 911 to report that his daughter, then 21 months old, was not breathing. When the paramedics arrived at his basement apartment in Brampton, Victoria had no vital signs. Shortly after she was pronounced dead at Brampton Civic Hospital.
[2] The Accused was subsequently charged with manslaughter and criminal negligence causing death. He has elected to have a judge alone trial.
[3] The trial, which has already been adjourned four times, is scheduled to proceed before me on May 17, 2021, and estimated to last for five weeks. The Crown plans to call approximately 15-20 witnesses, four of whom are experts. The Crown has applied under s. 714.1 of the Criminal Code, R.S.C. 1985, c. C-46, for all its witnesses to testify via video link because of the safety hazards arising from the COVID-19 pandemic.
[4] The Accused, who is out of custody, opposes the application. Although he agrees it is currently unsafe for witnesses to appear in person, he asserts that for the trial to be fair it should be conducted in person, and therefore requests that the trial be further adjourned to September 2021. In support of that request he waives his rights under s. 11(b) of the Charter until the new trial date in September, or whenever the trial shall occur.
[5] This motion was argued before me on May 10. After hearing submissions I granted the Crown’s application to have its witnesses testify virtually and denied the Accused’s adjournment request, for reasons to follow. At that time it was confirmed that the trial would proceed as scheduled on May 17.
[6] On May 12 the Accused filed a second adjournment application, this time on the basis that he intends to seek leave to appeal my ruling permitting virtual testimony to the Supreme Court of Canada under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26. On May 17, after hearing submissions on his second adjournment request, I dismissed it as well, with reasons to follow.
[7] These are my reasons for granting the Crown’s application under s. 714.1 and for denying both the Accused’s adjournment applications.
The Application under s. 714.1
Legal Framework
[8] The Court has the discretion to grant an order under s. 714.1 of the Code to permit witnesses to testify by videoconference. This provision was recently amended (pre-COVID) and lists several factors for the court to consider, 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;
(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.
[Emphasis added.]
Submissions and Analysis
[9] This motion was initiated by the Crown and therefore it bears the onus of demonstrating that the application should be granted.
[10] The primary if not sole factor driving the Crown’s application is the ongoing COVID-19 pandemic. The Crown points to the devasting impact the pandemic has had on the lives and well-being of all Canadians, and argues that requiring any witnesses to attend court in person at this time is both dangerous and unwarranted. In its factum, the Crown also describes how the personal circumstances of many of the witnesses make them or their family members particularly vulnerable to the COVID-19 virus.
[11] Our Court of Appeal has stated that courts can take judicial notice of COVID-19, its impact on Canadians, the current state of medical knowledge of the virus, including modes of transmission and recommended methods to avoid its transmission: R. v. Morgan, 2020 ONCA 279, at para. 8; R. v. Lariviere, 2020 ONCA 324, at para. 16.
[12] Moreover, we are currently in the midst of a provincial stay-at-home order. The current regulations and the state of emergency were put in place to protect the health of the community and to save lives at a time of soaring infection rates and overflowing hospital ICUs. The most recent directives from the Superior Court of Justice urge all court participants to stay at home where possible. The two most recent Notices to the Profession and Public Regarding Court Proceedings from the Chief Justice (April 20, 2021 and May 12, 2021) collectively advise as follows:
• The Court should focus on hearing the most serious cases, which include “critical criminal matters”;
• All non-jury matters should proceed virtually unless it is “absolutely necessary” to hold the proceedings in-person; and
• Alternate arrangements should be made for participants who do not wish to attend in-person.
[13] Importantly, the Defence does not suggest that the Crown witnesses should testify in person now. Both Crown and Defence agree that in the current environment an in-person trial is unsafe and therefore no witnesses should appear in person. The real dispute is whether the trial should proceed now, as a virtual hearing, or whether it should be adjourned to September when, the defence speculates, it can proceed safely in person.
[14] The Crown notes that the trial has already been adjourned on multiple occasions, almost all at the behest of the defence, and that a further adjournment is unwarranted given that current technology permits a reliable and accessible alternative to an in-person trial. It asserts that a virtual trial can be as fair or even fairer than an in-person trial, noting that some courts have found video testimony of a witness to be superior because the close-up, full facial views of the witness allow for a closer assessment than the side profile typically available to the trier of fact in the courtroom: R. v. MacKinnon, 2021 ONSC 2749, at para. 84; R. v. Mattu, 2019 ONCJ 517, at para. 12.
[15] Further, while a court can consider a witness’ demeanour in assessing credibility, case law is replete with warnings about overreliance on demeanour evidence in making such assessments: R. v. Rhayel, 2015 ONCA 377, at paras. 85-89; R. v. D.P., 2017 ONCA 263 at para. 26; MacKinnon, at paras. 67-69; Mattu, at para. 13.
[16] The Crown acknowledges that even if all its witnesses are permitted to testify remotely, s. 650 of the Code mandates that the accused “shall be present in court during the whole of his or her trial.” That, however, is subject to subsection (2)(b), whereby the court may “permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper”. Consistent with its position that it is safer for all participants to not attend court in person, the Crown would not oppose an order permitting the accused to be out of court for the entirety of the trial, should he so choose.
[17] The Defence, however, raises several concerns about a virtual trial. First and foremost, it emphasizes the nature and seriousness of the offences before the Court. Obviously, any paediatric homicide case is particularly grave, and carries potentially significant penalties should there be a conviction. However, the Code does not preclude the use of video link evidence based on the gravity of the charge. Moreover, s. 714.1 applications have been granted for witnesses in extremely serious cases, including first-degree murder (R. v. Khattra, CR-19-1981, released orally Feb. 10, 2021) and second-degree murder (R. v. Husbands, 2018 ONSC 6831, and R. v. Isaac, 2020 ONSC 7302). That said, given the high stakes involved in this case, I accept this factor deserves significant weight in the balancing exercise.
[18] Second, the Defence correctly notes that for at least some of the critical witnesses, credibility is important. Defence counsel asserts that while a virtual hearing may not impair the Court’s ability to assess credibility, it hampers counsel’s ability to fully observe, assess and react to a witness.
[19] I accept that being in the physical presence of a witness can, in some instances, aid counsel in their cross-examination. Counsel may pick up cues from mannerisms or body language that are not as perceptible on video. The dynamic of an in-person exchange can have a different pace and energy from one on-line. Undoubtedly some defence counsel believe they are more effective cross-examiners in person.
[20] That said, pre-pandemic caselaw recognizes that a) modern videoconferencing technology is sophisticated enough to capture the essence of a witness’ demeanour, and b) a fair trial does not always require that an accused physically confront a witness in person, even where the witness’ credibility is highly contested or where they are a central witness for the Crown: R. v. Zaganjori, 2019 ONSC 2518, at para. 14; R. v. Al-Enzi, 2017 ONSC 304, at para. 10; R. v. Schertzer, 2010 ONSC 6686, at paras. 35-39.
[21] Similarly, both pre-pandemic and ongoing, pursuant to s. 486.2, complainants in sexual assault cases regularly appear on video (although from inside a courthouse). In my experience, credibility in such cases is usually very much at issue. Nonetheless, courts have found that testimony by CCTV allows the Court, the accused, and counsel to observe the witness, including their demeanour, while they testify, and therefore does not infringe fair trial rights: R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, at pp. 485-493; MacKinnon, at paras. 80-83.
[22] Further, in post-pandemic decisions dealing with requests for witnesses to testify in person without a mask, judges have also found that videoconference testimony is a reasonable alternative that allows witnesses to testify safely and still permit the court to assess credibility and reliability. This includes R. v. Bdeir, 2021 ONCJ 54, at para. 15, a sexual assault trial where credibility was the central issue, and MacKinnon, at paras. 78-93, a homicide trial where the credibility of civilian witnesses was at issue.
[23] Finally, if the trial was proceeding in person now, all witnesses would be masked and separated from examining counsel by several layers of plexiglass, which strikes me as a far greater impediment than cross-examining them by video.
[24] In sum, as our Supreme Court has repeatedly stated in a variety of contexts, the goal is to achieve a fair trial, not necessarily a perfect trial: R. v. Esseghaier, 2021 SCC 9, at para. 10; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 193; R. v. Bjelland, 2009 SCC 38, at para. 22.
[25] For those reasons, I agree that permitting the Crown’s witnesses to testify through videoconference can accommodate both the public health interest and the Respondent’s right to a fair trial.
[26] All that said, I accept that with virtual testimony certain safeguards must be in place. Unless specifically varied by this Court, the Crown must ensure the following:
All its witnesses have the necessary software installed and are able to use it as necessary;
All can properly use the videoconferencing technology being used at this trial;
All have the necessary hardware to allow for reliable and audible communication;
All persons can open PDFs;
The witnesses are testifying from a suitable place, without any undue distractions, and are alone during their testimony;
While the witness is giving evidence, the camera should be positioned so that the trial participants can clearly see the witness, particularly their whole face;
While the witness is giving evidence, the witness shall not review any documents or access any electronic resources, other than:
(a) those documents put to them during their examinations as approved by the Court;
(b) such documents as they may ask and be permitted to review; and
(c) in the case of expert witnesses, their own expert reports and other expert reports in this action, provided that any such reports they review during their testimony do not contain any notes or annotations made by the witness or anyone else;
While the witness is giving evidence, the witness shall not refer to nor rely on a script or any notes; and
While the witness is giving evidence, the witness shall not communicate in any way with any other persons about the substance of their examination, except in accordance with counsel’s professional obligations and the rules of the Court.
The Adjournment Applications
[27] After hearing submissions, I rejected both the Accused’s initial request for an adjournment, and his subsequent application for an adjournment to seek leave to appeal my ruling under s. 714, for several reasons. First, this matter initially came to the Superior Court in June 2017. Since then the trial has been scheduled and adjourned on four separate occasions. The first two trial dates (June 2018 and September 2019) were vacated at the behest of the defence (Mr. Wildman was not then counsel of record). The third trial date (May 19, 2020) was adjourned due to COVID. The fourth trial date (February 1, 2021) was again adjourned at the request of the defence. Both Crown and Defence then agreed to the new (fifth) trial date of May 17, 2021.
[28] Second, this most recent adjournment request was made at the eleventh hour. Although defence counsel previously indicated he was opposed to the Crown witnesses appearing by videoconference, he did not advise he was seeking a further adjournment until the morning of May 10, 2021, the same day I was scheduled to hear the Crown’s s. 714.1 motion. Until that point, the only procedural issue in contention was whether the Crown’s witnesses would testify in person or by videoconference. Both the Crown attorney and I have set aside this five-week period anticipating the trial would proceed, one way or another. The Crown’s witnesses, including several experts, have arranged their schedules accordingly.
[29] Third, the proposed new date of September 2021 offers little assurance that the matter will be reached then. It is speculative as to whether the pandemic will have receded sufficiently to permit in-person trials in the fall. Even if it has, as a result of the pandemic the Central West region has accumulated an enormous backlog of criminal cases, many involving persons in custody who are awaiting jury trials and will be in desperate need of the already limited judicial resources available.
[30] Fourth, the proposed appeal of my ruling permitting virtual testimony appears highly speculative. The Supreme Court receives approximately 500 leave applications each year, of which generally only 6-10% are granted: 2020 Year in Review: Supreme Court of Canada (Ottawa: Supreme Court of Canada, 2021) at p. 18. Here, the supporting affidavit of Andrew Menchynski offers little prospect of this application making that narrow cut. In paras. 13 and 14 of his affidavit, Mr. Menchynski complains that the Crown has failed to identify any “specific issue” justifying the remote appearance of its witnesses, and is relying on “the mere existence of a pandemic”. That is a ridiculous assertion, given that a) we are in the midst of a provincial shutdown; b) the virus has become more lethal with the recent rise in variants; c) Peel Region has been particularly hard hit, with Brampton showing the highest COVID positivity rates in the province;[^1] and d) defence counsel has repeatedly conceded, and indeed asserted, that due to the ongoing pandemic alone, it is currently unsafe for any witnesses to appear in person, irrespective of their individual circumstances.
[31] Further, the three authorities Mr. Menchynski cites in para. 11 of his affidavit as support for the proposed appeal in fact support the Crown. In both MacKinnon (discussed above) and R. v. Mischuk, 2021 ONCJ 202, the Court permitted the witnesses in issue to testify remotely. In the latter case, Latimer J. sagely noted (at para. 5) that “[j]ustice is not a place, it is a service.” As for Woods (Re), 2021 ONCA 190, that case is utterly distinguishable, as the Ontario Review Board insisted on proceeding with a hearing by videoconference in direct contradiction to Part XX.1 of the Criminal Code which, unlike s. 714.1, expressly require the Applicant’s consent.
[32] As for Mr. Menchynski’s concern regarding “quality control measures” that should be imposed when a court authorizes a Zoom hearing, that is easily addressed and has now been (see para. 26, above).
[33] Finally, at this stage the proposed appeal is nothing more than a pipe dream. Defence counsel still has to apply to Legal Aid for funding. Although he asserts he intends to proceed with the application regardless of whether Legal Aid authorizes it, he has not yet drafted an Application for leave to appeal, much less filed one. If he is now granted an adjournment in order to pursue the leave application, he effectively gets the adjournment he was seeking at the outset, irrespective of whether he applies for leave or whether it is granted.
[34] For all those reasons, I declined to grant both the initial adjournment request and the subsequent one.
[35] If necessary, this Order and any provisions within it may be revisited as the trial progresses.
Baltman J.
Released: May 20, 2021
COURT FILE NO.: CR-17-452
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
FRANK O’DEA
Accused
REASONS FOR RULING PERMITTING VIRTUAL TESTIMONY UNDER S. 714.1 AND FOR REFUSING ADJOURNMENT
Baltman J.
Released: May 20, 2021
[^1] Peel Public Health, News Release, “Peel Public Health’s Weekly COVID-19 Epidemiological Update” (May 14, 2021), at p. 9, online: Region of Peel <peelregion.ca/health-professionals/covid-19/>.