Court File and Parties
COURT FILE NO.: CR-24-21
DATE: 20211021
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Her Majesty the Queen, Applicant
AND
C.D., Respondent
BEFORE: Justice S. Nicholson
COUNSEL: C.J. Pennycook, for the Applicant C. Conron, for the Respondent
HEARD: September 20, 2021
WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequences of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 ORDER RESTRICTING PUBLICATION—SEXUAL OFFENCES.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) An offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 173, 210, 211, 212, 212.1, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) Any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) Two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION—In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) At the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) On application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
RULING ON S. 486.2(2) APPLICATION
NICHOLSON J.:
[1] This is an application by the Crown pursuant to s. 486.2(2) of the Criminal Code of Canada (the “Code”) for an order permitting the Complainant to testify outside the courtroom, through closed-circuit tv (“CCTV”). In the alternative, the Crown seeks an order permitting the Complainant to testify from behind a witness screen.
[2] The Accused Respondent opposes the application.
[3] The Accused is charged with one count of sexual assault pursuant to s. 271 of the Code.
Statutory and Legal Framework:
[4] The general rule is that witnesses in common law criminal courts are required to testify in open court. However, the Code contains procedural and evidentiary provisions in sections 486.1 through s. 486.7 designed to promote the reporting of offences and to mitigate some of the effects on complainants of participating in a criminal trial. Some of these provisions specifically refer to offences of a sexual nature, while other provisions apply more generally.
[5] Section 486.2 of the Code is a provision applying to offences generally. Section 486.2 of the Code provides as follows:
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.
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of 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 if the judge or justice 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, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
o (a) the age of the witness;
o (b) the witness’ mental or physical disabilities, if any;
o (c) the nature of the offence;
o (d) the nature of any relationship between the witness and the accused;
o (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
o (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;
o (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;
o (g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
o (h) any other factor that the judge or justice considers relevant.
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
(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 or justice 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).
[6] For witnesses or complainants under the age of 18, such applications shall be granted under s. 486.2(1) unless the judge is of the opinion that the order would interfere with the proper administration of justice.
[7] Section 486.2(2) deals with witnesses such as the Complainant in this case that are 18 years of age or older. As can be gleaned from the words of s. 486.2(2), the applicable test is whether giving such evidence out of court, or behind a screen 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.” Factors to be considered by the Court are then enumerated in s. 486.2(3).
[8] The previous version of s. 486.2(2) of the Code contained a stricter test. The judge was required to be “of the opinion that the order was necessary to obtain a full or candid account from the witness of the acts complained of”. This was amended in July of 2015 with the coming into force of the Canadian Victims Bill of Rights. This supports the conclusion that Parliament intended to lower the threshold required in order to allow a witness to testify from outside the courtroom or behind a screen.
[9] Additionally, the legislation was amended to allow for a further basis for making such an order—that the order would “otherwise be in the interest of the proper administration of justice.”
[10] The ultimate goal of these provisions is to enhance the truth-seeking function of the criminal trial process. This must also be balanced against the rights of the accused. However, an accused has no constitutional right to confront the complainant face-to-face. Section 486.2(2) still affords an accused the ability to conduct a cross-examination. The jury is still able to observe the witness while he or she testifies, which is an important part of assessing that witness’ credibility.
[11] It should be noted that the test is directed to whether a full and candid account is facilitated by testifying through CCTV or behind a screen. Merely showing that the witness will be more comfortable in giving evidence does not meet the test. Even uncomfortable, nervous and emotional witnesses are capable of providing a full and candid account of their evidence. Thus, there must be a real concern that if the witness were to be required to testify in the courtroom, he or she would be unable to furnish a full and candid account. After all, the accused is still presumed innocent and has a fundamental right to a fair trial.
[12] Unlike s. 486.2 (1), where the order is presumptive, the onus in s. 486.2 (2) applications is upon the Crown, on the balance of probabilities.
Evidence on the Application:
[13] The Crown’s application was supported by an affidavit from the investigating officer, Detective Constable Ryan Patterson. DC Patterson sets out in his affidavit that the Complainant is over 18 years of age. She was 19 years of age at the time of the alleged assault and is now 20 years of age.
[14] DC Patterson deposes that he obtained an initial statement from the Complainant on April 5, 2020. DC Patterson further deposes that on April 19, 2021, he obtained a videotaped statement from the Complainant about her ability to testify in open court in the presence of the Respondent.
[15] DC Patterson provides some context to the allegations. The Accused and the Complainant were acquaintances, having met through the Complainant’s boyfriend. At the time of the alleged assault, the Accused was residing with the Complainant and her boyfriend.
[16] Respectfully, the remainder of DC Patterson’s affidavit is simply his interpretation of the videotaped statement given by the Complainant.
[17] In advance of the hearing of the application, counsel for the Crown and counsel for the Accused agreed that they would simply play the videotaped statement in its entirety for the Court. The videotaped statement dated April 19, 2021, approximately 21 minutes in length, was therefore made an Exhibit on the hearing. There is no dispute that this provided the Court with an unfiltered opportunity to gauge the Complainant’s evidence on the Application.
[18] The Complainant spoke during the interview in a quiet and hesitant fashion. She sobbed quietly. There were frequent pauses. She described shaking. She did not, however, become overly emotional or “breakdown”.
[19] Initially, DC Patterson asked an open-ended question of the Complainant. What concerns did she have about testifying? Her response was “he’d say that I was lying”. He then specifically asked if she had any fears. She responded that “seeing his face again, it would all come back to me”. Later, she said that “she just did not want to see him ever again”. Later, she stated that she “just can’t see his face”.
[20] The Complainant expresses concerns that the Accused said he would shoot her boyfriend. She has nightmares about him shooting her boyfriend.
[21] She was directly asked if being in the courtroom with the Accused would have any sort of impact on her testimony. She answered that she “was not sure”. She was then asked whether it would be more or less difficult to testify in front of him. Unsurprisingly, she responded that it would be more difficult. She felt that her body might freeze if she saw him. She was not sure if words would come out of her mouth.
[22] She indicated that she would feel more protected and less scared if she could testify in another room. It would make things easier for her, including to recall what had taken place. Importantly, the Complainant was unable to recall any direct threats made against herself and did not relay any concerns about her own safety going forwards.
[23] I suspect that the Complainant’s presentation during the interview will be fairly consistent with how she will testify at trial, whether it be in the courtroom or by CCTV. She did not get into specifics about the allegations so I do not mean to imply that she will be believed, or not believed. This also means that when she is required to discuss the specifics, she has greater difficulty composing herself. She, of course, was not cross-examined.
[24] The video was far more probative than DC Patterson’s affidavit, which frankly, cherrypicked bits and pieces from the interview to assist the Crown’s position on the application. Certainly, at times, the officer asked open ended questions. However, he also asked questions that could lead only to one suitable answer. For example, “will testifying in the courtroom make it easier or harder?” The answer to such a question is obvious and of no assistance to the Court.
Arguments: The Crown:
[25] The Crown emphasized that the Complainant was fearful of the Accused. She spoke of “freezing” if she saw his face and having difficulty testifying openly or talking about what happened. She was tearful and observed to be shaking throughout the interview.
[26] The Crown argues that “testifying in a sexual assault case can be traumatizing and harmful to complainants”, citing R. v. R.V., 2019 SCC 41, at para. 33 (per Karakatsanis J.). Of that, there can be little doubt. I note, however, that Karakatsanis J. was addressing a complainant having to answer questions about her prior sexual history, a practice which serves no purpose other than supporting the “twin myths”—that a complainant’s past sexual acts make her less worthy of belief or more likely to have consented to the sexual activity in question. Such questions have historically been used to distort the trial process and put the complainant on trial.
[27] Karakatsanis J., at para. 68 later notes that “inquiries into any individual’s sexual history are highly intrusive.” She makes it clear that the focus in R. v. R.V. is on the issue of the propriety of cross-examining a witness on their prior sexual history.
[28] In my view, the words in paragraph 33 ought not to be taken out of context. Not every complainant in a sexual assault case ought to be permitted to testify via CCTV. Parliament has identified the factors to consider in s. 486.2 (3).
[29] The Crown also argues that the 2015 amendments to the Code lowered the threshold for making orders under s. 486.2(2). The use of the word “facilitate” is a clear indication that testimony via CCTV should be expanded.
The Respondent:
[30] The Accused relies upon two decisions in which the courts have denied a CCTV application.
[31] In R. v. S.T.F.A., 2016 ONSC 4679, Del Frate J. noted that “the proper administration of justice must apply to both the complainant and the accused.” In that case, the 18-year old complainant in a sexual assault trial involving an accused who was her stepfather wished to testify via CCTV. Interestingly, in that case, the complainant’s anger was a predominant factor and she felt that she would be unable to control her outbursts if in the same room as the accused.
[32] Del Frate J. noted that the complainant testified in a straight-forward manner, with confidence. She was well spoken and acted quite maturely. In cross-examination, however, she became quite combative, had an angry outburst and walked out of the courtroom. However, upon resumption, she was calm, lucid and very cooperative. Ultimately, Justice Del Frate appears to have determined that the complainant was wrong to believe that she could have her outbursts in secret if she testified via CCTV.
[33] Del Frate J.’s description of the complainant in R. v. S.T.F.A. is far different than what I observed of the Complainant in the within case in the video.
[34] The other case relied upon by the Accused is R. v. Calder, 2016 ONCJ 225, a decision of Douglas J. In that case, two complainants, former wives of the accused, sought to testify via CCTV, again in the context of a sexual assault case, during the preliminary inquiry. Douglas J. lamented at the frequency that such applications were being made and, rightfully, pointed out that the accused should be presumed to be innocent, at the time of the application.
[35] It is also clear in Calder that Douglas J., although he denied the application prior to the preliminary inquiry, expanded on his reasons post-hearing. Thus, he had the benefit of having seen both complainants testify when he gave his expanded reasons. The application, like in the within case, was supported by an affidavit from the investigating officer. Unlike the within case, there were only bare assertions that the witnesses would be “very uncomfortable” and “an emotional mess”. Part of the affidavit was done on the basis that the women might be cross-examined by the self-represented accused, which Justice Douglas obviously rejected out of hand.
[36] Douglas J., had the benefit of having watched the two complainants testify during the preliminary hearing when he expanded on his reasons. At no time did the first complainant need any assistance. She did not look like she was in distress. The second complainant similarly appeared to have no difficulty whatsoever, even laughing in the witness box.
[37] Douglas J.’s concerns about the widespread frequency of such applications is duly noted. Unlike in Calder, I was, however, able to preview how the Complainant in this case will likely present at trial. Nothing about her presentation makes me believe that she will be laughing on the stand. To the contrary, I anticipate that she will be quite distressed while she testifies, although the reasons for such distress will be open for interpretation by the trier of fact.
[38] Finally, in R. v. Calder, while the s. 486.2(3) factors are listed, there is no detailed analysis provided by Justice Douglas of those factors. Reading the last few paragraphs, one cannot help but note that there was obvious frustration at the Crown, the police and at the delay that the self-represented accused had suffered through in custody.
[39] In short, while I respect the notion that it is of fundamental importance that witnesses testify in open court, the decision in each case is an exercise of discretion by the presiding judge. I am not persuaded that R. v. Calder represents the current manner that s. 486.2(2) of the Code ought to be interpreted in all cases, and in particular, this case.
[40] The Accused raised the issue of being prejudiced by the mere fact that the Complainant is testifying from another room, as suggesting his guilt to the jury. I am not persuaded that the jury cannot be satisfactorily instructed to not take that into account in weighing the evidence.
Factors Under s. 486.2(3):
[41] I shall now apply the s. 486.2(3) factors.
[42] I note that the Complainant is now 20 years of age. While she is no longer a child, she is still a young person. She is, however, old enough that I do not consider her age to militate in favour of her testifying out of the courtroom. We should, generally, expect adults to be able to testify in open court.
[43] In considering whether she has any mental or physical disabilities, the Crown urged me to consider that she spoke of being depressed and having lost a lot of weight. No cases were provided by either party on what is meant by “mental or physical disability”. I have trouble accepting that depression necessarily falls within this umbrella, at least not without better medical evidence supporting the depression as being so debilitating as to constitute a “disability”. I do accept that it is a factor that a judge may consider under s. 486.2(3)(h) (“any other factor that the judge or justice considers relevant”).
[44] It is certainly not the intent to exacerbate a complainant’s depression by requiring them to testify in the courtroom and I accept that a person’s emotional well-being is a relevant factor.
[45] This particular offence is a sexual assault. The specifics of the assault remain unknown to me at this juncture. I take from the submissions of the Accused that his defence is that he and the Complainant engaged in a consensual “affair” behind the Complainant’s boyfriend’s back and that when the boyfriend discovered the affair, the Complainant made the sexual assault allegations. Credibility will be front and centre of that defence. Credibility can likely be better assessed in person. Credibility can still be, however, assessed via CCTV.
[46] This must be balanced with the real possibility that testifying via CCTV will permit the Complainant to speak more frankly and candidly about what transpired. It can be traumatizing to be compelled to tell strangers about a sexual assault or sexual activity, which is obviously a very intimate personal experience. I accept that it would be made easier to do so if the Complainant testified through CCTV.
[47] I am also to consider the nature of the relationship between the Accused and the Complainant. The evidence on that issue is incomplete. They are noted to be acquaintances and the Accused lived with both the Complainant and her boyfriend for an unknown period of time. Accordingly, they are familiar with each other, but I take it that they do not have as personal a relationship as if they had been a “couple” or that family members would, by way of example.
[48] I also take it from some of the responses of the Complainant during her videotaped interview that she resided with the Accused for some period of time following the initiation of what she alleges was non-consensual sexual activity. I draw no inferences from that fact, as victims of sexual assault react in many different ways to the offence against them.
[49] On the whole, with respect to this factor, all I can really conclude is that they knew each other prior to the alleged commission of the offence, having resided in the same dwelling. I am also aware that the Accused and the Complainant’s boyfriend were at one time friends. This factor does not weigh heavily into my decision.
[50] During the interview, the Complainant was specifically asked about whether she had any concerns for her own safety. She did speak of concerns for her boyfriend’s safety. In fact, she recounted nightmares about it. I accept that s. 486.2(3)(e) can be interpreted broadly enough to include intimidation or retaliation that occurs to other people. However, the order will not, likely, make any difference with respect to whether the Accused decides to retaliate against the boyfriend. The Accused already knows that the Complainant intends to testify. The Complainant did not articulate her own fears of reprisal against her. I do not believe that it has been established that the Complainant needs to testify via CCTV for reasons of security or protection.
[51] Factors (f) and (f.1) do not apply.
[52] Factor (g) is very important to the analysis. The Court is asked to consider society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process.
[53] Courts have accepted that there has been historic and ongoing chronic under-reporting of sexual assaults. Parliament recognized this by amending the Code to include, as examples, publication bans under s. 486.1, restricting cross-examination on a complainant’s sexual history pursuant to s. 276, prohibiting evidence of sexual reputation under s. 277 and the production of a complainant’s “records” under s. 278.1 through s. 278.98. These evidentiary and procedural rules are aimed at encouraging victims of sexual assault to come forward and to testify at trial. The aspiration is that complainants will no longer be reluctant to testify due to the fear that the legal system will, as Karakatsanis J. described in R. v. R.V., at para. 33, “essentially put the complainant on trial”.
[54] Thus, it is certainly more likely that a complainant will feel more willing to come forward in sexual assault cases if there is recourse, in appropriate cases, to out of court testimony. This is likely Parliament’s goal by easing the test under s. 486.2 (2). Factor (g) weighs heavily in favour of permitting the Complainant to testify via CCTV.
[55] Factor (h) permits the Court to consider any other relevant factors. I have already indicated that I prefer to consider the Complainant’s emotional state under (h) as opposed to (b). It is a factor that carries some weight but given the lack of any medical foundation for the diagnosis, it is difficult to attribute too much weight to that claim.
[56] Another relevant factor that I feel is necessary to consider is the current state of the courtroom as a result of the COVID-19 pandemic. This will be a jury trial. While jurors are required to be vaccinated, they are still spaced out throughout the courtroom to maintain social distancing. They are not in the traditional jury box. Many of them are seated near the back of the courtroom and there are monitors for them to watch the witnesses give their evidence. In other words, the jurors are watching the witnesses testify via television monitor in any event. From the perspective of the jury being able to observe the Complainant to assess her credibility, there is little, if any, difference whether she testifies from the courtroom or via CCTV from a location outside the courtroom.
[57] I acknowledge that this is not the traditional courtroom, but it is the current, unavoidable, situation.
Disposition:
[58] It bears repeating that the word chosen by Parliament is “facilitate”. “Facilitate” means to make easier or less difficult. In the context of s. 486.2(2), the Court must determine whether permitting a witness to testify via CCTV will make it easier for this Complainant to make full and frank account of the sexual assault that she alleges occurred to her.
[59] I do believe that it is not necessary for the Complainant to testify via CCTV. If the application were to be denied, I accept that the Complainant would likely be able to testify in a meaningful fashion from within the courtroom.
[60] However, on balance, I am persuaded that permitting the Complainant to testify via CCTV will facilitate the giving of a full and candid account. I take “full” to mean that she will be more likely to include greater detail, and “candid” to mean that she will be forthcoming and straightforward in her evidence.
[61] The onus was on the Crown, not the Accused, on this application. Nevertheless, I recognize the balancing of interests that inherently takes place to safeguard the right of the Accused to make full answer and defence. In my opinion, cross-examination will not be impeded if the witness testifies via CCTV and the jurors will have an adequate opportunity to observe the Complainant for the purpose of assessing her credibility.
[62] Having determined that permitting the Complainant to testify via CCTV will facilitate the giving of a full and candid account by her of the acts complained of, I need not determine whether doing so would “otherwise be in the interest of the proper administration of justice”.
[63] The Crown’s application is granted. The Complainant shall be permitted to testify via CCTV pursuant to s. 486.2(2) and s. 486.2(5) of the Code.
[64] Counsel did not, at the hearing of the application, address the issue as to the location of counsel during the examination in chief and cross-examination of the Complainant. That will be addressed at the outset of trial.
Justice Spencer Nicholson
Date: October 21, 2021