COURT FILE NO.: CRIM J(P) 473/20
DATE: 2021 12 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Sandeep Brar
BEFORE: Fowler Byrne J.
COUNSEL: James Rice, for the Crown
Jag Virk, for the accused
HEARD: November 15, 2021
RULING ON APPLICATION TO GIVE EVIDENCE REMOTELY
[1] The Crown brought an application pursuant to s.714.1 of the Criminal Code, R.S.C. 1985, c. C-46, seeking leave for the complainant to testify at trial remotely using video conferencing.
[2] In addition, the Defence argues that it was only served with the Crown’s Factum and Brief of Authorities approximately six days prior to the scheduled commencement of trial, rather than the 30 days required by r.33 and r.32.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (“Rules”).
[3] After hearing the application, which was opposed, I allowed the Crown to proceed with the application, despite the late service, but dismissed the application to have the complainant give her evidence by videoconference technology, for reasons to follow. These are those reasons.
I. Background
[4] Mr. Brar stands charged with two counts of assault, contrary to s.266 of the Criminal Code, and one count of sexual assault, contrary to s.271. He has elected to proceed to trial before a judge and jury.
[5] Following the events that have led to these charges, the complainant moved to British Columbia.
II. Issues
[6] There are two issues for me to decide:
a) Should the Crown be allowed to proceed in light of their late delivery of this Application?
b) If so, should this Application be granted?
III. Application Served and Filed Late
[7] For the following reasons, I have granted leave to the Crown to proceed with its application, despite late service and filing of the application.
[8] It is not contested that on January 25, 2021, a judicial pre-trial was held before Durno J. While the Crown’s Pre-trial Conference Report specifically states that it is not seeking to have any witnesses give evidence by audio or videoconference, Durno J.’s Report to the Trial Judge clearly states that the Crown is to make an application to “video link the complainant from western Canada.”
[9] It further appears that no date was set for this application, but the matter was remanded to trial for the sittings commencing January 24, 2022. A further pre-trial was heard on February 16, 2021, and the matter was put over to a “TBST” date on February 19, 2021. On February 19, 2021, the trial date of January 24, 2022 was vacated, and a new trial was scheduled for the sittings commencing November 15, 2021.
[10] The parties agree that the first time the Crown contacted defence counsel and indicated their intention to bring this application was approximately one month prior to this date, at which time it sought the Defence’s position. Approximately one week later, the Defence responded that they would be opposing this application. At an attendance on November 9, 2021, the Crown indicated that it was going to bring an application for its main witness to testify remotely as she lives in British Columbia. The first day available to argue this application was this date, which was supposed to be the first day of trial.
[11] It is further agreed that the Crown’s Application Record, Factum and Brief of Authority were served on November 10, 2021, five days prior to the scheduled hearing. The Defence was able to serve a Responding Record, a two-part Factum and two Briefs of Authority, prior to the hearing on this day.
[12] Rule 6.05(1) of the Rules states that the Notice of Application and the Application Record should be served no later than thirty (30) days prior to the date of the hearing. Rule 32.01(1) states that Books of Authorities are to be served and filed no later than thirty (30) days prior to the hearing, and Rule 33(12) sets the same deadline with respect to the Applicant’s factum.
[13] Rule 2.01 gives a judge the authority to dispense with compliance with any rule only where and to the extent it is necessary in the interests of justice to do so. Rule 3.02 permits a judge to make an order extending or abridging any time prescribed by these rules or in an order in accordance with Rule 2.01, on such terms as are just.
[14] If an Applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:
a) the nature of the applicant’s non-compliance with these rules;
b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;
c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;
d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;
e) the history of the pre-trial applications and the proceedings;
f) any notice given to other parties about the issues raised in the pre-trial applications;
g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;
h) any prejudice to any other party in the proceeding;
i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;
j) any explanation advanced for failure to comply with these rules; and
k) any other factors the judge considers relevant to his or her determination. (Rule 34.03).
[15] In deciding to allow the Crown to proceed, I have considered the following:
a) The Defence was able to provide fulsome materials in response;
b) The Defence was afforded the opportunity to cross-examine the affiant in support of the application;
c) There was a need to determine this question in a timely manner in order to allow for the orderly conduct of the trial;
d) It was clear in the pre-trial conference report that the Crown would be bringing this application; and
e) My determination of this issue was about the manner in which evidence was to be presented, and not determinative of an evidentiary issue itself.
[16] Accordingly, I determined that the Crown should be permitted to proceed with its application.
IV. Evidence by Videoconference
[17] For the following reasons, I have dismissed the Crown’s application to have the complainant give evidence by videoconference.
[18] Section 714.1 of the Criminal Code states as follows:
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.
[19] Unfortunately, the evidence filed in support of this application was sparse, and as a result, I find there is an insufficient evidentiary basis for the order sought.
[20] In support of the application, the Crown filed a short, one-page affidavit of the Officer in Charge. The brevity of this affidavit allows it to be reproduced here:
I, Matt Huntington, of the City of Mississauga in the Province of Ontario, MAKE OATH AND SAY:
I am a Police Officer and I have been employed with the Peel Regional Police for 7 years. I am the OIC of the assigned to this matter.
There is one Victim in this case.
On October 19th, 2021 I spoke to [the complainant]. She advised me that:
a. She has moved to British Columbia and is unable to return to Ontario for the trial due to the financial hardship it would cause and the possibility of her losing her job.
- [The complainant] advised me that she has access to a computer with a camera in her home. She also advised that she has a reliable internet connection and a private space in her home where she could testify.
I make this my Affidavit for no improper purpose.
[21] No other evidence on the application was proffered. The police constable made himself available for cross-examination. The complainant was not present and did not give evidence in any manner.
[22] This affidavit is hearsay evidence. As stated in Rule 4.06(2):
An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except that an affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, provided that the source(s) of the information and the fact of belief are specified in the affidavit, or except where these rules provide otherwise.
[23] Upon cross-examination of the officer in charge, it was clear that he had no personal information regarding the complainant’s employment and whether it was in jeopardy. Nothing was confirmed and the officer could not even advise where the complainant worked. There was no evidence of what type of financial hardship it would cause the complainant. It was not clear if it meant that the complainant would not earn any income if she had to come to trial, or if she would personally incur any expenses for travelling here.
[24] These statements were important, and contentious. Other than the complainant’s address, they form the main arguments in favour of the complainant giving evidence by videoconference. Evidence of this importance cannot be introduced through hearsay.
[25] As stated in R. v. Thornbury, 2021 ONSC 5204, at para. 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.
[26] The law is clear. The questioning of a witness by videoconference does not infringe the accused’s right to a fair trial, even if credibility is at issue: R v. O’Dea, 2021 ONSC 3706, at paras. 20-22.
[27] It is also conceded that the pandemic has made giving evidence by videoconferencing more prevalent. That being said, the Crown did not rely on the health and safety of the complainant as a reason for remote testimony. No COVID-19 concerns or general health concerns were raised. In addition, no argument was made that it would be uncomfortable for the complainant to be in the same room with the accused.
[28] Accordingly, the only proper evidence before me was that the complainant lived in British Columbia, that she was the Crown’s main witness and that she had a stable internet connection.
[29] This is insufficient. Just because a key witness lives outside of the jurisdiction, the court should not be expected to “rubber-stamp” a request for a witness to give evidence remotely without an evidentiary basis that allows the court to properly consider all the factors set out in s.714.1.
V. Conclusion
[30] Accordingly,
a) leave is granted to the Crown to bring this application despite late service; and
b) Crown’s application is to have the complainant give evidence by video is dismissed.
Fowler Byrne J.
DATE: December 7, 2021
COURT FILE NO.: CRIM J(P) 473/20
DATE: 2021 12 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Sandeep Brar
COUNSEL: James Rice, for the Crown
Jag Virk, for the accused
ENDORSEMENT
Fowler Byrne J.
DATE: December 7, 2021

