Court File and Parties

Court File No.: 8340/20 Date: 2022-04-20 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant And: H.T., Respondent

Before: Varpio J.

Counsel: W. Trent Wilson, Counsel for the Applicant C. Bruce Willson, Counsel for the Respondent

Heard: April 11, 2022

Reasons on S. 486.2 Application

[1] This is the Crown’s application pursuant to s. 486.2(2) of the Criminal Code of Canada for an order permitting the complainant to testify at her ex-husband’s upcoming jury trial via CCTV and with the assistance of a support person.

[2] For the reasons that follow, the application is granted.

The Evidence

[3] The Crown called the complainant in this matter, Ms. K.T. The complainant testified that she was in a relationship with the accused for 20 years and that the pair share four children, ranged in age from 8 to 14. The relationship is over. The complainant went to police and alleged that the accused engaged in sexual assault for a considerable portion of the relationship. As a consequence, the complainant testified that she has concerns about being in the same courtroom as the accused. She shuts down in his presence. In fact, the complainant testified that she was having a hard time simply being on the same screen as the accused (this hearing was performed via Zoom). She fears that she will not be able to give a good account of her recollection of events if she were to testify in person because his previous control over her leads to anxiety. Her mind goes blank, she breaks down in hives and she is unable to think and speak properly. She has received no medical diagnosis in this regard.

[4] The complainant denied having contact with the accused after separation, although the pair are in matrimonial litigation. She has interim custody of the children, and the accused has visitation rights. All communication is done through lawyers.

[5] In cross-examination, the complainant stated that she was having a hard time testifying during this application because she could see the accused. The complainant also indicated that she had had some interaction with the accused post-separation given the need to pick-up and drop-off the children for access visits. One of these visits occurred at the Quattro Hotel in Sault Ste. Marie. The complainant was asked about that visit. She indicated that she was scared during the visit.

[6] The accused also testified on this application. He indicated that there were no overtones of fear during the Quattro visit and that he took the children swimming at the hotel pool. The accused also testified that there has been no verbal communication between the parties during access visits.

The Position of the Parties

[7] The accused argues that the complainant’s entire story is concocted and that the truth-seeking function requires the complainant to face the accused. The complainant furnished no medical evidence in support of her contention that she has anxiety associated with the accused. Accordingly, she should not be believed. The complainant is simply someone who does not want to face the accused because she is not telling the truth.

[8] The Crown argues that an order permitting CCTV testimony and permitting the assistance of a support person is necessary because same will facilitate the complainant in giving of evidence.

Analysis

[9] Section 486.2(2) of the Criminal Code states:

(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.

[10] Section 486.2(3) of the Criminal Code states:

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(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.

[11] As Justice L’Heureux-Dube observed in R. v. Levogiannis, [1993] 4 S.C.R. 475 at para. 13, “the goal of the court process is truth seeking and, to that end, the evidence of all those involved in the judicial proceedings must be given in a way that is most favourable to eliciting the truth”. To that end, it is clear that there must be an evidentiary basis for granting of an order that deviates from the normal courtroom procedure: R. v. M.(P.), [1990] O.J. No. 2313 (C.A.) at para. 12.

[12] It is also clear that, if I am to grant this application, my findings must support the conclusion that the order will “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”. This threshold is presumably higher than simply assisting a witness in overcoming typical nervousness or normal anxiety associated with giving testimony: R. v. H.(K.A.), 2005 CarswellOnt 2841 (S.C.J.).

[13] In R. v. Evans, [2017] O.J. No. 7268, Boswell J. faced a situation where an alleged sex trade worker testified against her former pimp. The Crown brought an application for a s. 486.2 order permitting the complainant to testify via CCTV. Boswell J. canvassed the jurisprudence and described the “gold standard” of truth seeking that involves facing one’s accuser at para. 18:

The adversarial system - with its process of examination and cross-examination of witnesses - has been settled upon in Canada as the most advantageous one for getting at the truth. I agree with defence counsel that the gold standard has historically required that witnesses attend in person to be examined and cross-examined. There may be a number of explanations for such a requirement, including but not limited to the following:

(a) Until recently, the technology did not exist to carry on live, real time, examinations through remote, video-linked locations. Technology has advanced of course and I would expect that witnesses testifying remotely will become much more commonplace in the not-too-distant future;

(b) There is much to be said for the assertion that witnesses will be more likely to tell the truth when they are in the courtroom environment, face-to-face with the accused. The way the courtroom and the participants are set up tends to enhance the likelihood that the witness will speak truthfully. The courtroom is a very formal, solemn room. The judge sits in a lofted position, peering down on the witness, alert to his or her every move. The judge, counsel and the court clerk are all robed, distinguishing them from the witness who is a conspicuous outsider. An oath or affirmation is administered. And the witness must face the accused person as he or she testifies; and,

(c) It has historically been considered the right of the accused person to face his or her accuser.

[14] At paras. 19 to 22, however, Boswell J. described the shift away from such a “gold standard” as follows:

More recently, this ancient "right" of confrontation has been very much qualified. It is no longer seen as an absolute right, but rather one subject to qualification in the interests of justice: Levogiannis, para. 30. Today it is considered the right to be present in court, to hear the allegations and the evidence, and to be given an opportunity to respond.

Courts are faced, on a daily basis, with the task of balancing individuals' Charter rights against societal rights and interests or against the Charter-protected rights of third parties. Sometimes one right must give way to another, in the interests of justice. At all times, rights must be considered contextually, in order to determine what a right demands, if anything, in the particular circumstances. See for instance, R. v. White, [1999] 2 S.C.R. 417.

It has been conclusively determined that the use of testimonial aids, such as a screen or video-linked testimony may well promote society's interest in getting at the truth. At the same time it does not undermine the principles of fundamental justice, nor impinge on the accused's Charter-protected right to a fair trial: R. v. J.Z.S., 2008 BCCA 401, [2008] B.C.J. No. 1915 (B.C.C.A.) aff'd 2010 SCC 1, [2010] 1 S.C.R. 3. Section 486.2(2) is constitutionally valid.

What is required of the court, in an application under s. 486.2(2), is to assess whether permitting the use of a testimonial aid will enhance, rather than impede, the truth-seeking function of the trial.

[15] In this case, like in Evans, I agree that the Crown has met its burden.

[16] First, I accept the complainant’s evidence that she effectively “shuts down” around the accused. Her evidence, although challenged, was not shaken on this point. Dropping children off at a hotel, or otherwise engaging in pick-ups and drop-offs is very different than testifying in open court. To suggest that the ability to engage in pick-ups and drop-offs means that a witness is able to testify without crippling stress or anxiety misses the obvious. The accused’s evidence did not contradict the complainant’s testimony as a result and I have no reason to disbelieve the complainant’s evidence regarding her heightened state of anxiety as regards testifying in this trial.

[17] It should be noted that I am not finding that the complainant’s anxiety is as a result of any criminal acts caused by the accused. Simply, I find that the complainant suffers from severe anxiety and stress that is triggered by the thought of testifying against the accused and that said thought would likely cause her to “shut down” and be unable to give a proper rendering of her version of events were she to testify in open court. Although a medical diagnosis may have been helpful to my determination, I do not believe that same is necessary for me to make this finding.

[18] Second, I note the nature of the offences as well as society’s interests in having people report sexual offences: R. v. Barton, 2019 SCC 33 at para. 1.

[19] Accordingly, I accept the complainant’s evidence regarding her anxiety, I take notice of the nature of the allegations and the accused and the complainant’s former matrimonial relationship, and I find on a balance of probabilities that “the order would facilitate the giving of a full and candid account by the witness of the acts complained of”.

[20] The Crown’s application is granted.

[21] The complainant will, however, be required to testify from the CCTV room at the courthouse and she is able to testify in the company of a Victim Witness worker who can serve as her support person.

[22] The accused has concerns about putting documents to the complainant in cross-examination and I am content to meet with counsel, on the record, prior to the commencement of trial, in order to make necessary arrangements.

Varpio J. Released: April 20, 2022