Court File and Parties

COURT FILE NO.: 20-RM19805 DATE: 2021/10/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TYLER RICHARD

Counsel: Fara Rupert and Devin Harm for the Crown Paolo Giancaterino for Mr. Richard

HEARD: June 29 and September 27, 2021

RULING ON APPLICATION FOR TESTIMONIAL AIDS

Justice Sally Gomery

[1] Tyler Richard is charged with the second-degree murder of Gholam Alisalehie on March 19, 2020. The Crown alleges that Mr. Richard fatally wounded Mr. Alisalehie by stabbing him with a knife outside the Shepherds of Good Hope shelter in the Byward Market in downtown Ottawa. Jesse Morton is a friend of Mr. Richard who says he accompanied Mr. Richard and another friend, Isaiah Picody-Naveau, to the Market area on March 19, 2020 and witnessed the stabbing.

[2] The Crown will call Mr. Morton as a witness at Mr. Richard’s trial in March 2022. In this application, it seeks:

(i) A determination that Mr. Morton’s videotaped police interview is admissible pursuant to s. 715.2 of the Criminal Code;

(ii) Authorization for Mr. Morton to have a support person when he testifies, and that he be permitted to wear headphones, pursuant to s. 486.1 of the Code; and

(iii) Authorization for Mr. Morton to testify outside the courtroom via CCTV or, in the alternative, from behind a screen, pursuant to s. 486.2 of the Code.

[3] Mr. Richard does not take issue with (ii). He contests (i) and (iii).

[4] The Crown alleges that Mr. Picody-Naveau got into a scuffle with Mr. Alisalehie prior to the stabbing, and he was jointly charged with Mr. Richard for second degree murder. Evidence and submissions on the Crown’s application for testimonial aids were made in June 2021 in conjunction with an application by Mr. Picody-Naveau for severance. I granted severance in August 2021, and sought confirmation from the parties that, they wanted me to make a decision on the testimonial aids application only with respect to the proceeding against Mr. Richard.

The evidence on the application

The overview video

[5] The Crown played an overview video showing footage from the Ottawa public transportation system and areas in the Byward Market on March 19, 2020. The stabbing of Mr. Alisalehie was captured by two video cameras outside the Shepherds of Good Hope shelter. The Crown alleges that the overview video shows that Mr. Richard, in the company of Mr. Morton and Mr. Picody-Naveau, travelled downtown by bus, walked through the Market area and then stopped in front of the shelter. Mr. Picody-Naveau began speaking with Mr. Alisalehie and they exchanged punches. It was at this point that Mr. Richard allegedly intervened and stabbed Mr. Alisalehie four times in the back before fleeing the scene.

The video of Mr. Morton’s police interview

[6] The Crown played Mr. Morton’s videotaped police interview on March 21, 2020. This video is the subject of this s. 715.2(1) application. The interview was recorded after Mr. Morton became aware, through news reports, that police were looking for the individuals involved in Mr. Alisalehie’s stabbing and he turned himself in. He was initially charged with assault but this charge was no longer being pursued when he was interviewed.

[7] During the interview, Mr. Morton identified Mr. Richard, Mr. Picody-Naveau and himself as the individuals pictured on the video taken outside the Shepherds of Good Hope shelter. He also described in detail what he saw and observed that day and the next day.

[8] During the interview, Mr. Morton was told by the interviewing police officer at the outset that there was no evidence that he was involved in the stabbing. When the officer emphasized again, a short time later, that Mr. Morton was not being charged, Mr. Morton began to cry about how upsetting it was to be a suspect and perhaps never seeing his mother or his dog again.

[9] Mr. Morton denied being on drugs but acknowledged that he takes medication for mental health issues. He denied that these drugs affect his memory or cause him to hallucinate. He admitted that he had been charged with assault at some point in the past and pleaded guilty. This did not result in a criminal record since he was diverted.

Tara Perkins’ evidence

[10] Mr. Morton’s mother, Tara Perkins, testified about his medical and psychiatric history and the impact of this proceeding on him. Mr. Morton is currently 25 years old. He moved out with a roommate when he was 18 years old, and then lived on his own. He moved back home, into a basement apartment in his mother’s house, after March 19, 2020. Ms. Perkins testified that she set up the apartment to accommodate Mr. Morton’s limitations. She expects that he will continue to live there “forever”.

[11] Ms. Perkins testified that Mr. Morton was diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD) and Tourette’s Syndrome when he was in grade three. As a result of these conditions, Mr. Morton did not do well at school. Ms. Perkins described his reading comprehension as very good but said that his fine motor skills are “atrocious” and that he can barely write.

[12] After primary school, Mr. Morton went to a middle school for children with behavioural issues. He graduated from a technical high school a semester later than his peers. He has not pursued any further education or vocational training.

[13] Ms. Perkins testified that, after Mr. Morton moved out on his own, he started using illegal drugs. Around the same time, he became paranoid and was diagnosed with schizophrenia when he was 20 or 21 years old. Ms. Perkins said that he thinks that people are talking about him and this makes him anxious. He sometimes gets hallucinations about what others are saying.

[14] In cross-examination, Ms. Perkins acknowledged that Mr. Morton has not been formally assessed by a psychiatrist since 2018. The Canadian Mental Health Association (CMHA), which assists Mr. Morton, has been trying to arrange for a reassessment with the psychiatrist who diagnosed his schizophrenia, but there is a waitlist. In the meantime, Mr. Morton is under the care of a family physician. Ms. Perkins could not recall whether he has been seen by a psychologist in the last fifteen years. She stated, however, that she could not keep track of all of the doctors he had seen.

[15] According to Ms. Perkins, Mr. Morton has difficulty coping with life stressors. This was especially apparent when he tried to live independently. He had tremendous anxiety, nightmares, and depression, and did not sleep well. He has nervous tics. She described him as suicidal as recently as May 2021.

[16] Mr. Morton takes medication for anxiety and depression. He also gets an anti-psychotic medication every three weeks by an injection administered by a CMHA worker. Ms. Perkins supervises Mr. Morton to make sure that he takes his oral medication on a regular basis and limits his supply of prescription medication so that he does not overdose. She does not think he has been using hard drugs since he moved back home but admitted in cross-examination that she cannot be sure about this.

[17] Mr. Morton receives Ontario Disability Support Payments (ODSP). When he gets his monthly ODSP cheque, Ms. Perkins deducts an amount for rent and other expenses and gives Mr. Morton an allowance. She stated that, left to his own devices, he would not remember to buy food for himself or for his dog. She therefore makes most of the decisions about his finances.

[18] With respect to personal care, Ms. Perkins said that Mr. Morton takes care of his personal grooming but has to be reminded to brush his teeth. She helped him to shave the week before she testified. She does not, however, hold a power of attorney for his personal care or his finances.

[19] In Ms. Perkins’ view, Mr. Morton functions as a 15-year old. This is based on her own observations as opposed to any formal assessment by a health care worker. She described him as vulnerable, naïve, and easy to manipulate. She said that, when he was living on his own, he was taken advantage of constantly. His neighbours and acquaintances would come to his apartment to take his food and belongings or would use his place to camp out.

[20] In March 2020, Mr. Morton was living alone in an apartment. On March 20, 2020, the day after the stabbing, he told his mother that he was wanted for murder and showed her a video image of himself at the crime scene. This was part of a news report by local media after the stabbing. After seeing the image, Ms. Perkins persuaded Mr. Morton to turn himself in to the police the next day. He was arrested but released after the police concluded he was not responsible for Mr. Alisahelie’s death.

[21] Ms. Perkins described Mr. Morton’s reaction to being subpoenaed to testify in the preliminary inquiry in this case. When a police officer arrived to serve him in October 2020, Mr Morton came out of the house and yelled at him, saying that he would not go to court and would not testify. The officer explained that he had to testify. Mr. Morton was very concerned about his personal safety. According to Ms. Perkins, he became more anxious, angrier and more depressed prior to the preliminary inquiry.

[22] The Crown obtained authorization for testimonial aids for the purpose of Mr. Morton’s evidence at the preliminary inquiry. This allowed him to testify via CCTV and to wear noise cancelling headphones. As a result, he was “pretty calm” when he testified, but relieved when it was over. In cross-examination, Ms. Perkins admitted that testifying made Mr. Morton feel better because he had information about his friend Mr. Picody-Naveau that he wanted the judge to know.

[23] Ms. Perkins said that she does not know if Mr. Morton is scared of Mr. Richard. He is generally scared of being seen as a “rat”. She is unaware of any threatening phone calls or gestures received by Mr. Morton.

[24] Ms. Perkins acknowledged that Mr. Morton was involved in proceedings before the Mental Health Court, during which he was represented by a criminal defence lawyer. I infer that this was the diversion following his guilty plea to assault that Mr. Morton mentioned during his police interview.

[25] Ms. Perkins also admitted that Mr. Morton seemed to have no problem expressing himself during the March 21, 2020 police interview. He did not have any outbursts, although he did cry briefly. She did not hear him swear or get angry. He also had no trouble telling her what had occurred on March 19, 2020. She acknowledged that Mr. Morton’s behaviour has improved since he moved back home. He is fed, medicated and has stability.

[26] Finally, Ms. Perkins admitted that Mr. Morton resents her involvement in his interactions with the police. He objects to her disclosing information about his mental health, as this makes him feel paranoid and he would prefer to speak for himself.

Mr. Morton’s out-of-court testimony on this application

[27] Mr. Morton was interviewed, under oath, by Mr. Picody-Naveau’s lawyer on June 26, 2021. This interview lasted eleven minutes.

[28] Mr. Morton acknowledged during the interview that, in addition to the medical conditions mentioned by his mother, he has oppositional defiance disorder and possibly PTSD. He takes medications for schizophrenia, anxiety and depression.

[29] Mr. Morton recalled testifying via CCTV during the preliminary inquiry. He denied that he was “stressed out” by being cross-examined by Mr. Richard’s lawyer. He stated that he was relieved to provide information that might assist Mr. Picody-Naveau. He said he does not understand why the police do not speak directly to him but instead speak to his mother.

[30] Mr. Morton stated that he would not mind testifying in court at Mr. Picody-Naveau’s trial, as he considers him to be a friend. He would prefer to testify from a separate room at Mr. Richard’s trial, because Mr. Richard “threw him under the bus”.

[31] The Crown did not have an opportunity to cross-examine Mr. Morton at the end of this interview and chose not to call him as a witness on the application because, in its view, this would cause him undue stress.

Should Mr. Morton’s videotaped police interview be admitted pursuant to s. 715.2(1)?

[32] Section 715.2(1) provides as follows:

In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

[33] This provision is a statutory exception to the hearsay rule that permits an out-of-court statement to be admitted for the truth of its contents; R. v. Osborne, 2017 ONCA 129, at para. 35. The Court of Appeal held at para. 57 of that decision that s. 715.2 was underpinned by “the interests of getting at the truth and ensuring that vulnerable people who, for different reasons, are limited in their ability to communicate in court, are nevertheless provided with an opportunity to be heard”.

[34] The requirement that the videotaped statement was made within a reasonable time is clearly met in this case. Mr. Morton’s videotaped police interview was recorded on March 21, 2020, two days after the stabbing. The requirement that the witness described the acts complained of is also met. During the interview, Mr. Morton recounted what he observed when he accompanied Mr. Richard to the ByWard Market. The question I must consider is whether Mr. Morton may have difficulty communicating his evidence by reason of a mental disability such that, it is in the interest of justice that his videotaped interview should be admitted as his evidence in chief.

[35] The Crown contends that Mr. Morton’s mental health conditions may make it difficult for him to communicate his evidence at trial. According to his mother, he functions at the level of an adolescent. He is, however, a key witness. Admitting his videotaped statement would therefore further the truth-seeking function of a trial while protecting a vulnerable person. Mr. Richard’s rights will also be protected because Mr. Morton will still be subject to cross-examination.

[36] The defence concedes that Mr. Morton has a mental disability and that he has poor judgment and poor life skills. The defence contends, however, that the Crown has not established that Mr. Morton may have difficulty communicating when called to testify.

[37] Having considered the evidence on the application, I conclude that the Crown has not persuade me that Mr. Morton may have difficulty in communicating what he observed on March 19, 2020, that is, I do not find that he lacks the ability to describe events he witnessed in a cogent way. In these circumstances, I do not find that the videotaped interview should exceptionally be admitted for the truth of its contents.

[38] Based on Ms. Perkins’ evidence, Mr. Morton suffers from mental health conditions, including schizophrenia, anxiety and depression. Her evidence centered on how she needed to help him with his personal care, feeding, finances and social interactions. She did not say that he has communication or memory issues that might prevent him from being able to describe past events. Despite his mental health and behavioural issues, he completed high school. There is no evidence that the medications he takes for his mental health conditions affect his memory, his cognition or his ability to express himself.

[39] During Mr. Morton’s recent and brief out-of-court interview, he confirmed his mother’s evidence about his mental health and medication. He did not contradict her account of his functional limitations, although he expressed resentment about her desire to speak for him. The interview did not give me reason to think that he would have difficulty in recounting what occurred on March 19, 2020.

[40] During the police interview, Mr. Morton struck me as someone who processes information somewhat slowly. He was sometimes distracted by peripheral issues. He came across as quite immature and naive. The interviewing police officer had to explain things in simple terms. When asked straightforward questions, however, Mr. Morton answered them in a straightforward way. He was clearly under tremendous stress during the interview: he was separated from his mother and believed, despite reassurances to the contrary, that he would be charged with murder. He was nevertheless able to give a detailed account of what he saw and did on March 19, 2020.

[41] Mr. Morton also testified at the preliminary inquiry. This was evidently a stressful experience, even though he testified remotely. I accept Ms. Perkins’ evidence that Mr. Morton became more anxious, angrier and depressed after being subpoenaed. The issue on this application is not, however, whether Mr. Morton will be called as a witness at trial or whether he will be subject to cross-examination, but rather whether his evidence in chief will largely consist of the videotaped police statement.

[42] I do not find, on the evidence, that admitting the videotaped statement as evidence at trial is necessary either to protect its truth-seeking function or to protect Mr. Morton as a person with a mental disability. The Crown’s application under s. 715.2(1) is therefore dismissed.

Should Mr. Morton be authorized to testify via CCTV or from behind a screen?

[43] Section 486.2(1) provides that a witness with a mental disability may be permitted to testify from outside the courtroom or from behind a screen:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice 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, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

[44] The language of s. 486.2(1) tracks with the language of s. 715.2(1). They are both premised on a finding that a witness “is able to communicate evidence but may have difficulty in doing so by reason of a mental … disability”. These two provisions also share a common purpose. They are both intended to protect vulnerable individuals and allow them to participate in court proceedings, in recognition of their dignity and their rights and duties as citizens, and to ensure that all relevant evidence is put before the court.

[45] Despite this shared purpose and language, however, the criteria for granting an order under s. 486.2 differs from the criteria to grant an order under s. 715.2. As observed by Justice Fitzpatrick in R. v Long, 2015 ONSC 4509, at paras. 29 and 30:

Sections 486.2 and 715.2 are intended to mitigate the effects of a disability on an individual’s ability to offer evidence to the court. However, while both sections have the same objective in common, they offer different means by which to achieve that objective. Pursuing one route does not necessarily obviate the need for the other.

The ability to testify via CCTV pursuant to s. 486.2 provides the witness with a less intimidating setting in which to provide her testimony while the ability to adopt a videotaped statement made closely after the time of the incident avoids the need for the witness to again relate the entirety of her evidence.

[46] A witness with a mental disability may be able to describe events such that it unnecessary to admit otherwise inadmissible hearsay pursuant to s. 715.2. That same witness might, however, have significant difficulty communicating his or her evidence in the presence of the accused.

[47] The different considerations that come into play under s. 486.2 and s. 715.2 are reflected in the way these provisions are drafted. There are no specific factors that a judge is required to consider under s. 715.2, beyond those criteria set out in s. 715.2(1) itself. When considering an application for a vulnerable witness to testify via CCTV or from behind a screen, however, the judge must take into account not only the criteria in s. 486.2(1) but a list of additional factors set out at s. 486.2(3). These include:

(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;

(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

(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 or justice considers relevant.

[48] As a result, my rejection of the Crown’s s. 715.2 application does not mean that its application under s. 486.2 must also fail. On the contrary, taking into account the evidence and the factors set out at s. 486.2(3), I conclude that the application should be granted.

[49] Ms. Perkins testified that Mr. Morton functions at the level of a fifteen-year old. She described how she is required to supervise him and take care of many of his activities of daily life. She said that he was paranoid, anxious and sometimes suicidally depressed. Although Ms. Perkins acknowledged that her opinion about Mr. Morton’s immaturity is based on her own observations of her son, as opposed to a formal assessment by a psychologist, her evidence on his inability to cope with the everyday stressors was not contradicted in any meaningful way. She was candid in her responses on cross-examination but stuck to her overall narrative. I accept her evidence about Mr. Morton’s limitations and his reaction to being subpoenaed to testify at the preliminary inquiry.

[50] Ms. Perkins’ description of how Mr. Morton interacts with other people is also consistent with my own observation of his conduct during his police interview. For example, although he was repeatedly reassured that he was not being charged with any crime, he cried at the prospect of not seeing his dog again.

[51] Observing Mr. Morton’s demeanour and communication skills in his out of court interview did not assist me in assessing how he might respond in open court about the events of March 19, 2020. Sitting in a lawyer’s office answering friendly questions for ten minutes is entirely different than testifying in open court about witnessing a fatal stabbing. The interview was short and non-confrontational. It is however significant that Mr. Morton did not contradict his mother’s evidence about his anxiety and depression prior to testifying at the preliminary inquiry, or his reaction to being subpoenaed. He denied that cross-examination at the preliminary inquiry was a stressful experience, but also said that he would prefer not to have to be in the same room as Mr. Richard. His statement about his cross-examination must take into account that, when he testified at the preliminary inquiry, he did so via CCTV.

[52] The defence points out that there is no evidence that Mr. Richard has made any attempt to intimidate Mr. Morton or to threaten reprisals if he testifies. Mr. Morton has said that he is anxious about being perceived as a rat if he testifies, but this does not appear to be founded on anything concrete.

[53] I do not need to find that Mr. Morton requires an order under s. 486.2 for his security or to protect him from intimidation or retaliation. That is only one potentially relevant factor. What I am ultimately concerned about is whether, for whatever reason, Mr. Morton may have difficulty in giving a full, truthful and candid account in Mr. Richard’s presence. Based on the evidence, Mr. Morton is paranoid and anxious about testifying in proceedings against Mr. Richard. Even if Mr. Richard may have done nothing to try to intimidate him, he fears being in the same room with him.

[54] If the application is granted, Mr. Morton will still be fully visible to the jury while he testifies. I conclude that granting the application will allow him to participate in the proceedings in a way that protects his interests and health, society’s interests in encouraging vulnerable witnesses to come forward, and the truth-finding function of the trial, while ensuring that Mr. Richard’s fundamental rights are also protected.

[55] The Crown’s application under s. 486.2 is therefore granted. I order that Mr. Morton shall testify at trial outside the court room via CCTV.

Justice Sally Gomery

Released: October 19, 2021