COURT FILE NO.: G987-01/18 G987-02/18

DATE: 20210720

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Todd Thornbury

James Burton

R. Griffin, for the Crown

M. Macchia for the Respondent Thornbury R. Gemmill for the Respondent Burton

HEARD: July 19, 2021

RESTRICTION ON PUBLICATION

There is an order banning publication of any information identifying the complainant in this proceeding.

Reasons for Decision re Application Pursuant to s. 714.1 Criminal Code

Relief Sought

[1] The Crown applies for an order permitting the complainant, the primary Crown witness in the upcoming trial of this matter, to testify by video link from a location in New Brunswick. The Crown relies on section 714.1 of the Criminal Code. The Crown also seeks an order permitting the use of a support person pursuant to section 486.1(2).

[2] The 486.1(2) application was unopposed by both Respondents and was granted by me pursuant to oral reasons delivered on July 19, 2021.

[3] The section 714.1 application is unopposed by the Respondent Burton and is opposed by the Respondent Thornbury.

[4] The Respondent Thornbury opposes the use of a video link for the complainant in this case noting that the complainant’s credibility is crucial to determination of the charge. Alternatively, if the video link is permitted, the Respondent seeks to have the testimony be provided via video link from a courtroom inside the Moncton Courthouse instead of the proposed private room used for interview purposes by the Royal Canadian Mounted Police, at the Beausejour Family and Crisis Centre in Shediac, New Brunswick.

[5] The accused are charged with gang sexual assault of the complainant pursuant to section 272(1)(d) of the Criminal Code said assault alleged to have occurred between April 1 and July 31, 2004, in the City of Kawartha Lakes.

[6] The trial in the matter is set for a jury trial commencing October 18, 2021.

[7] For the reasons that follow, the Crown’s application is allowed in part.

Summary of the Facts Relating to the Charge

[8] The following summary was provided by the Crown for the purpose of the within application. While there was no objection to the summary, none of the facts have been proven in Court.

[9] The complainant alleges that during the summer of 2004, the complainant, then aged 23, was recovering from surgery and undergoing chemotherapy for stage three ovarian cancer. The doctors estimated that the complainant had approximately three months to live and the complainant was in an extremely frail condition.

[10] In July of 2004, the complainant attended a burial service with Todd Thornbury for his grandmother. The complainant had been dating Thornbury off and on for a number of years.

[11] After the funeral service, the complainant and Thornbury went to Thornbury’s home in Woodville, Ontario. James Burton, who is Thornbury’s cousin, was also present in the home.

[12] Thornbury and Burton were consuming alcohol.

[13] After a period of time, Thornbury and Burton are alleged to have forced the complainant down the hallway in the home, into a bedroom.

[14] The complainant alleges that Thornbury and Burton ripped off the complainant’s clothes and threw her on the bed while each took a turn having intercourse with the complainant, with Burton going first.

[15] The complainant alleges that she did not consent and tried to resist both verbally and physically but was not strong enough to fight them off.

[16] The complainant further alleges that the intercourse was aggressive, and the complainant was so scared that she urinated on the bed.

Summary of Facts Relating to the 714.1 Application

[17] The following is a summary of relevant facts contained in the affidavit of Bonnie Johnston and the exhibits attached thereto, and/or are facts elicited from the examination and cross-examination of Bonnie Johnston at the hearing of the application. Ms. Johnston is the complainant’s victim/witness services worker in Ontario. While the Respondent Thornbury objected that much of the evidence tendered was “hearsay”, I am not persuaded that the rules of evidence should be strictly applied in this context. The Criminal Proceedings Rules for the Superior Court of Justice (Ontario) permits evidence on an application to be given by affidavit and (Rule 6.07) allows affidavits to include “statements of the deponent’s information and belief with respect to facts that are contentious” (Rule 4.06(2)). While Thornbury objects that the deponent Ms. Johnston does not have first-hand knowledge of all matters addressed in her affidavit, he has not adduced any evidence contradicting her statements of information and belief. In my view, Ms. Johnston’s affidavit is admissible for the purposes of this application and to the extent that she lacks direct personal knowledge, I can properly take this into account as a matter of weight.

[18] The complainant currently resides in New Brunswick and has a debilitating form of progressive Multiple Sclerosis which was first diagnosed in 2004.

[19] By letter dated June 18, 2021, Dr. Mario Alvarez advised that the complainant was first diagnosed in 2004 and suffered a relapse in 2009. A third episode of weakness in the lower limbs occurred in 2014, and a fourth relapse in 2015 with optic neuritis on the left side, and later in the same year with weakness in the left hand. The complainant’s Multiple Sclerosis is “active and progressing despite consecutive treatments with various disease-modifying therapies”. The complainant is currently in a therapeutic transition to a new drug and “needs close monitoring”. Dr. Alvarez stated: “Given the degree of activity of her multiple sclerosis and the current adjustments in her treatment, I recommend not to make interprovincial trips, especially to avoid infection by Covid-19 and the possible complications of her current condition”.

[20] By letter dated June 10, 2021, Nurse Practitioner, Corinna Power, advised “because of her MS and the medications, she (the complainant) is immune suppressed and requires regular monitoring, preventing her from being able to travel. At present she is not getting the COVID vaccine”. After summarizing the complainant’s physical and mental health issues, Nurse Power opined: “Due to these illnesses she is unable to travel to Ontario. As well, there is an increased risk of her contracting COVID if she travels to Ontario. Considering her history of multiple sclerosis she could have a very difficult time recovering if she did contract this virus”.

[21] By letter dated May 5, 2020, Dr. Jacques-Andre Godbout, psychiatrist, advised that the complainant is followed by him in an out-patient psychiatric clinic. Dr. Godbout noted: “She is known for post-traumatic stress disorder, whose symptoms have recently re-exacerbated, given the opening of a trial for an assault she suffered in the past”.

[22] By letter dated October 7, 2019, the complainant stated “…I have little strength and find it difficult to get out of bed. I have a hard time sitting and standing. It seems I’m never comfortable and have pain everywhere. Most recently I have been breaking out in sores causing infection. My bladder control is getting worse; than ever. I am exhausted all the time. I am claustrophobic and fearful of most things. I find it difficult to leave my home…these are some of the reasons why I cannot go to Ontario”.

[23] Finally, the complainant’s victim/witness services worker (“VWAP”), Bonnie Johnston, by affidavit sworn June 29, 2021, noted as follows:

i. VWAP staff (herself or a colleague) have spoken to the complainant 19 times dating back to March 2019;

ii. The complainant has discussed her poor health, her desire to follow through with the Court process, and her distress at her inability to travel for this matter because of her health.

iii. The complainant was grated leave and testified at her preliminary hearing on February 26, 2020, by videoconferencing from a courtroom in Moncton, New Brunswick, supported in person by a support person, and remotely by Ms. Johnston.

iv. Since her testimony at the preliminary hearing the complainant’s health has continued to decline.

v. In June of 2021, the complainant described further deterioration in her mobility and daily functioning to Ms. Johnston as the complainant’s MS symptoms continue to progress as follows: her mobility is shaky and she sometimes gets dizzy; she can’t drive; she is using a cane at all times; she has a bath lift and cannot stand for a shower; she is experiencing muscle weakness; and she owns a scooter but does not use a wheel chair and instead stays in bed when she would need a wheelchair to get around.

vi. In the event the application is granted arrangements have been made for the complainant to testify from the Beausejour Family and Crisis Centre in Shediac, New Brunswick which has a secure room with a laptop, videoconferencing software, and internet access that is used by the RCMP for interviewing vulnerable victims and witnesses.

[24] During cross-examination at the hearing, Ms. Johnston advised that she had not spoken to the complainant for approximately 2 ½ weeks but when they last spoke Ms. Johnston understood that the complainant’s MS symptoms remain as outlined in her affidavit and had not improved. Ms. Johnston also confirmed that to her knowledge the Moncton provincial court (or any Moncton court) is not an option due to Covid-19 protocols.

[25] Ms. Johnston also advised that the complainant is not unwilling but unable to attend Ontario due to her debilitating medical condition and the additional ongoing threat to that condition posed by COVID-19, as the complainant cannot be vaccinated at this time.

Criminal Code Provisions

[26] Section 714.1 of the Criminal code provides as follows:

Audioconference and Videoconference – witness in Canada

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 in all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present;

(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 trial and public hearing; and

(f) 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 be given by audioconference.

[27] The presumptive rule for an adversarial trial is that witnesses are present in the courtroom, in the presence of the accused and the public. In certain circumstances, however, a witness’ presence in the courtroom may cause an unwarranted inconvenience, or in some cases may inhibit the search for the truth; see R. v. S.D.L., 2017 NSCA 58 and R v. Levogiannis, 1993 CanLII 47 (SCC), [1993] S.C.J. No. 70.

[28] As noted by Justice J. DiLuca in R. v. Blake and Khabemba, 2019 ONSC 6026 at para 15:

“Mechanisms such as section 714.1 and section 486.2(2) of the Code provide an alternative to requiring a witness’ physical presence inside the courtroom. These mechanisms do not displace the presumptive rule that witnesses should be present inside a courtroom. Rather, they recognize that in certain circumstances, trial fairness is not sacrificed and the goal of the search for the truth is enhanced where a witness is permitted to testify outside the courtroom”.

[29] DiLuca, J. further noted at para 16, as follows:

“Section 714.1 permits a witness who is inside Canada to testify remotely in the virtual presence of the accused. This section has often been used to address scenarios where two circumstances are present: (a) it would be too costly or inconvenient for the witness to travel to the courthouse where the accused is being tried; and (b) the witness is not a central or significant witness in the case.”

[30] In R. v. S.D.L., at para 32, the Nova Scotia Court of Appeal provided the following guidance on how to exercise the discretion conferred by section 714.1 of the Code:

1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice.

2. That said, when credibility is an issue, the court should authorize testimony via s. 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice.

3. When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.

4. The more significant or complex the proposed video link evidence, the more guarded the court should be.

5. When credibility will not be an issue, the test should be on the balance of convenience.

6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross examination be required, that could be done by video link.

7. When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited.

8. Finally, it is noteworthy that in the present matter, the judge authorized the witness to testify “in a courtroom…or at the offices of Victims’ Services..” to preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.

[31] Since release of the decisions in R. v. Blake and Khabemba and R. v. S.D.L., the world has experienced a global pandemic that has drastically altered the manner in which trials are conducted. Pursuant to COVID-19 protocols, testimony by videoconference has become the norm in civil proceedings. While the majority of criminal trials have been delayed, the delay is not attributable to any inability of the court to run virtual trials but by the justice participants requiring juries and/or in-court proceedings.

[32] Justice J. Dawe, in R. v. McDougal, dealt with a s. 714.1 application following the commencement of the pandemic. By his Ruling, Dawe, J. noted that Courts in Ontario have, for the most part, declined to follow the approach favoured by the NSCA in R. v. S.D.L. and have rejected the view that there is any presumption in favour of in-court testimony. However, as Dawe, J. aptly noted, it is unnecessary to weigh in on the debate as he was satisfied that exceptional circumstances were present namely due to the fact that the trial was going to take place during the midst of a global pandemic.

[33] At the date of Dawe, J.’s decision (February 4, 2021), Ontario was under a state of emergency and Ontarians were ordered to stay at home unless leaving home was necessary for one of a number of listed purposes. While attending court was one of the purposes, Dawe, J. noted that it was “obviously still in the public interest to have as few people attending court as is reasonably possible”. Dawe, J. continued to review what in court testimony looks like during the pandemic and noted that all courtrooms have been fitted with Plexiglass shields which are a necessary but intrusive protection. Most recently, due to the spread of new and highly transmissible variants of COVID-19, everybody in the courtroom, including counsel and all witnesses, as well as the judge, have been directed to remain masked at all times.

[34] While the stay at home order is no longer in effect and the decision to remain masked at all times now lies with the trial judge, the fact remains that there are new and highly transmissible variants of COVID-19 circulating in the community.

[35] As the complainant suffers from a serious disease that has compromised her immune system and has (to date) disallowed her to be vaccinated, it is probable that if the complainant were required to attend Court to provide testimony that I, as the trial judge, would require everybody in the courtroom to remain masked at all times, including while providing testimony.

[36] Similar to the situation faced by Dawe, J., the choice that I am faced with is not between the witness giving evidence in court in the unimpeded manner that was formerly traditional versus testifying over video, but between witnesses testifying in court behind Plexiglass shields while (likely) remaining masked versus the witness testifying over video unmasked.

[37] Again, as noted by Dawe, J., the ability of the jury and/or judge in assessing the credibility of the witness in person (with Plexiglass and likely masked) versus by video unmasked, appears to favour video testimony where the trier of fact will have a better opportunity to both see the witness’ face and hear the testimony keeping in mind the very limited value that the trier of fact can properly place on demeanour evidence.

[38] It is my view that the circumstances of the day and of this complainant qualify as exceptional. The evidence that was presented relating to the complainant’s disability favour allowing the complainant to testify by video. However, when we add into the equation the fact that we are in a global pandemic with highly transmissible variants and a complainant who has not be vaccinated due to immune issues – the choice is clear. The complainant shall be permitted to testify via video from New Brunswick.

[39] Counsel for Thornbury raised the concern that if the complainant were permitted to testify by video link that such testimony should properly take place in a courtroom instead of the proposed Beausejour Family and Crisis Centre in Shediac, New Brunswick.

I do not disagree with this proposal. However, the fact remains that currently there is no ability for the complainant to testify in a courtroom in Moncton. Further, even if the restriction were lifted and the complainant were permitted to testify in a court room – such testimony would be taking place in a public place, with necessary court staff present, and would undoubtedly result in a requirement that the complainant be masked (as she is unlikely to be vaccinated). So, to the extent that it is preferable that the complainant testify without a mask, it is also preferable that the complainant testify in a secure location that would offer protection to the complainant and permit her to testify without a mask.

Ruling

[40] The Crown’s application to permit the complainant R.D. to testify at the trial of this matter from Beausejour Family and Crisis Centre in Shediac, New Brunswick, is granted provided that the complainant is safely able to testify at Beausejour without wearing a mask.

[41] In the event that the complainant is required to wear a mask to safely testify from Beausejour, and in the event that at the date of the trial, the applicable Covid-19 protocols and courtroom availability permit the complainant to testify from a courtroom in Moncton, arrangements shall be made by the Crown to permit the complainant to testify from a courtroom in Moncton.

[42] In the event that the complainant is required to wear a mask to safely testify, and at the date of the trial the complainant is not permitted to testify from a courtroom in Moncton (due to Covid-19 protocols and/or courtroom availability) then the complainant shall testify at Beausejour by video link while wearing a mask.

Justice S. J. Woodley