COURT FILE NO.: CR-154/19
DATE: 2021 12 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.M.
Mr. R. Morrow, for the Crown
Mr. J. Virk, for the accused, D.M.
HEARD: December 7, 2021
REASONS FOR DECISION - CROWN’S PRETRIAL APPLICATION UNDER SECTION 714.2 OF THE CRIMINAL CODE, AND CROWN’S ADJOURNMENT APPLICATION
CONLAN J.
I. The Applications
[1] The Crown applies for an order that the complainant and chief prosecution witness be permitted to testify at the upcoming jury trial in Halton (the jury selection set for December 9th, two days from today) by audio-video link from a law office in Puerto Vallarta, Mexico.
[2] Alternatively, the Crown asks for an adjournment of the trial.
[3] The Applications are both opposed by the defence.
[4] The remote testimony request is brought under section 714.2 of the Criminal Code: “[a] court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice”.
[5] The Applications were heard at Court, via the Zoom platform, on December 7, 2021. The only witness to testify for either side was the officer in charge (“OIC”) of the investigation. Each side filed written materials on the Applications, and the Crown’s materials included an affidavit from the OIC. The complainant did not testify on either Application, and no affidavit from her was filed. What we know from her is what is contained in the email that she sent to the OIC on November 24, 2021, which email is included in the OIC’s affidavit.
II. The Decision
[6] The Application under section 714.2 of the Criminal Code is dismissed. I find that it has no merit. I find specifically, on a balance of probabilities, that to grant the Crown’s request would be an affront to the principles of fundamental justice.
[7] The adjournment request is granted.
[8] The jury selection date (December 9th) is vacated. The trial dates starting December 13th are vacated. The case is adjourned to, and the accused is remanded to, 11:00 a.m. on December 17, 2021 to set new trial dates at that time.
III. The Reasons for the Decision
[9] This accused is facing very serious allegations of criminal misconduct of a sexual nature perpetrated against the complainant.
[10] It has long been known to everyone concerned, including the complainant, that the trial would take place in person, with a jury, in December 2021. The trial dates were set long ago, eight days commencing on December 13th.
[11] Despite this knowledge, not long before the scheduled trial dates, in September 2021, the complainant, an unvaccinated person with respect to COVID-19, chose to go on a vacation to Mexico. She now fears that, if she returns to Canada to testify at trial, she will be unable to leave the country again and return to Mexico without being forced into vaccination (these are her words as contained in her November 24th email referred to above). Thus, she wants to be able to testify by audio-video link from a lawyer’s office in Puerto Vallarta, Mexico.
[12] First, with respect, to allow the Crown’s remote testimony Application, in these circumstances, would make a mockery of the justice system. In fact, the within Application does not even fall within the spirit and intent of section 714.2 of the Criminal Code.
[13] Yes, section 714.2 deals with witnesses outside of Canada. Yes, this complainant is currently outside of Canada. But she is outside of Canada (i) as a result of her own choice to go on a vacation to Mexico, (ii) during the worldwide health pandemic, (iii) after the trial dates were set, (iv) knowing when she left that it was set as an in-person jury trial, (v) knowing when she left that she is the key witness for the entire Crown case, (vi) knowing when she left that she is unvaccinated, (vii) knowing when she left that travel is not as easy these days as it was before the virus arrived (especially for the unvaccinated), and (viii) knowing when she left that the trial was only two to three months away, approximately.
[14] If she did not know all of these things, then, with respect, she should have known them.
[15] In addition, the complainant chose to wait until November 5, 2021 to tell the authorities where she was.
[16] I suspect that if we asked any parliamentarian if section 714.2 was designed or intended to apply to these circumstances, or if we asked the same question of any judge who has been called upon to interpret that section, we would be told in the negative.
[17] Observing that something would make a mockery of the justice system is the same as saying it would be contrary to the principles of fundamental justice. I so find here, on balance.
[18] I appreciate the Crown’s authorities, including but not limited to the helpful decision of Justice Dunphy in R. v. Mapp-Farouk, 2020 ONSC 5040, particularly paragraphs 11, 15, and 17 therein, but those decisions are all highly distinguishable from our facts. For example, in Mapp-Farouk, the person who was to give the remote testimony was a resident of Barbados (there is no evidence before this Court that our complainant is a resident of Mexico; in fact even the OIC described her as a “visitor”), and without a residence in Ontario (we do not know the status of our complainant’s residence in Ontario), and the prosecution in Justice Dunphy’s case had clearly complied with the statutory notice requirement for the application (as described below, that is less clear in our case).
[19] Second, I have serious concerns about the quality of the videoconferencing if the complainant testifies from the law office in Puerto Vallarta. To say that its quality is imperfect is a gross understatement. It would be contrary to the principles of fundamental justice, specifically the accused’s right to a fair trial, to permit the complainant to testify remotely when we know from the evidence of the OIC, written and viva voce, that there is much more than a mere potential for audio-video feed disruption.
[20] The OIC tested the internet connection for 15-20 minutes on December 1, 2021. He was at his home in Ontario. The other participant was at the law office in Puerto Vallarta. Zoom was utilized. It worked, but it was not smooth or continuous, the OIC stated in his testimony. There seemed to be a delay in the audio, and the video had a slight stagger, the OIC stated in his affidavit. The other participant at the law office told the OIC that there are daily slow downs and glitches with the internet between 10:00 a.m. and 12:00 noon (the time there is one hour behind the time in Ontario). 11:00 a.m. to 1:00 p.m., Ontario time, is normal sitting time for a trial in the Superior Court of Justice.
[21] Because of mould removal and remediation work currently ongoing at the Halton Courthouse located in Milton, the Superior Court of Justice is being operated out of a convention centre and hotel in Burlington. That has been the case for many months now, and it will continue for many more months.
[22] Even on a good day, with the court staff working out of a hotel room and the judge somewhere else, there are problems with the technology in Halton. For example, on the very day that the within Application was argued, we started late because of some problem with Zoom and the technology at the hotel room. It is a frequent, almost daily, occurrence.
[23] To add to this morass the key trial witness testifying remotely and utilizing this precarious audio-video feed from Puerto Vallarta is not in the interests of justice, in my opinion.
[24] Third, it should be noted, as well, that the Crown’s Application was not brought in compliance with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). A factum was filed far less than thirty days before the Application could have ever been heard, given the jury selection date, contrary to Rule 33.01(12). Further, the Application was brought in Form 1 as a regular Rule 6 application, and the Application Record was not filed thirty days or more before the hearing date or even before the start of the trial, contrary to Rule 6.05(1).
[25] Fourth and finally, it is questionable whether the Crown has complied with clause (2) of section 714.2 of the Criminal Code. If this Court accepts that the date on which the complainant was scheduled to testify is December 13th, and if this Court accepts that the Application was served and filed on the date that appears on its face, December 2nd, then it is true that the ten-day notice requirement was (just barely) met. But if this Court accepts that the complainant was scheduled to testify on December 9th, the arraignment and jury selection date which marks the beginning of the trial, then the notice requirement was not met. If this Court cannot determine it either way, then the notice requirement is not met because the onus of establishing that rests with the applicant Crown.
[26] It is especially troublesome here when the Crown admits knowing about the complainant being in Mexico on November 5th, yet the Application is dated December 2nd, almost a month later.
[27] For all of these reasons, the section 714.2 Application by the Crown had to be dismissed.
[28] On the Crown’s adjournment Application, Mr. Virk, in able submissions, focussed on (i) the delay in bringing the Application, which I agree was unacceptable, and (ii) its non-compliance with the Criminal Proceedings Rules, which I agree is the case, and (iii) prejudice to the accused and defence counsel, which I agree exists, and (iv) the suspicion that the complainant will never be able to be secured by the Crown to attend trial.
[29] I do not agree with the fourth assertion. We shall see.
[30] Items (i) through (iii) do not, even collectively, outweigh the need to try these very serious sexual allegations on their merits. The case must go on, in my view. If the adjournment results in a stay application for delay, then the relevant considerations will be made at that time.
[31] I exercise my discretion to grant the adjournment of the trial. The Crown and the complainant should know, however, that this indulgence I am sure will not be handed out again.
[32] I thank Mr. Morrow, whose involvement in the matter is fairly recent, and Mr. Virk for their help in deciding these Applications.
“C.J. Conlan”
Conlan J.
Released: December 7, 2021
COURT FILE NO.: CR-154/19
DATE: 2021 12 07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.M.
REASONS FOR decision-crown’s pretrial application under section 714.2 of the criminal code, and crown’s adjournment application
Conlan J.
Released: December 7, 2021