R. v. M.T., 2022 ONSC 3345

COURT FILE NO.: CR-19-108

DATE: 20220603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.T.

Respondent

K. Frew, for the Crown, Applicant

R. Brooks, for the Respondent, Accused

HEARD: June 3, 2022

REASONS FOR DECISION

conlan j.

The Charge and the Upcoming Trial

1Mr. M.T. is accused of having sexually assaulted his then domestic partner (section 271 of the Criminal Code). The alleged victim is an adult, and she was so at the time of the alleged offence. The trial in the Superior Court of Justice at Milton, with a jury, is scheduled to commence in about two weeks.

The Application

2The Crown applies for an order to have the complainant be able to testify at trial remotely, via closed-circuit television (“CCTV”) with an audio and video feed, from a room inside the courthouse that is separate from the courtroom. That request is made under subsection 486.2(2) of the Criminal Code, on the basis that such an 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”. In oral submissions at the very brief hearing of the application, both counsel focused exclusively on the first part of that phrase in quotations and not on the more generalized proper administration of justice. Set out below is subsection 486.2(3), which provision sets out the factors that this Court shall consider on the application.

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.

3The application was heard at Court on June 3, 2022. The Crown called one witness to testify, a person who previously swore/affirmed one brief affidavit, Ms. K. Watt of the Victim Witness Assistance Program in Halton. Ms. Watt was cross-examined by defence counsel. The hearing of the application, both evidence and submissions by counsel, was completed in about thirty (30) minutes.

Decision

4First, it should be noted that the Crown served/filed no formal application in this matter; without objection by the defence, this Court waived any such requirement. Second, it should be noted that the Crown requested in oral submissions that the Court also make an order for a support person to be present and to be close to the complainant while she testifies at trial – subsection 486.1(2). The materials filed by the Crown in advance of the hearing date would have given no notice to the defence of that additional request. Without objection by the defence, the Court treated the matter as an amended application and proceeded on that basis. The defence consents to that order for a support person, regardless of the Court’s decision on the issue of the proposed CCTV testimony. Thus, this Court makes the order requested under subsection 486.1(2) of the Criminal Code. Third, it should be noted that the defence would consent to an order that the complainant testify at trial, in the courtroom, behind a screen that would prevent her from seeing the accused. As the Crown was clear in oral submissions that no such request is being made, this Court makes no order in that regard.

5The Crown’s request for an order under subsection 486.2(2), the CCTV application, is granted. The application is allowed for these reasons, with reference to subsection 486.2(3).

6As for the age of the complainant, the evidence filed does not assist. It should have. This Court knows only that the complainant is, and was at the time of the alleged offence, an adult.

7In terms of the complainant’s disabilities, the evidence filed, which I accept, is that the complainant has an anxiety and panic disorder for which she receives treatment and medication.

8On the nature of the relationship between the complainant and the accused, they are former domestic and intimate partners, and they were such at the time of the alleged offence.

9There is no evidence, and no suggestion, that the complainant needs the order sought for her security or for her protection from intimidation or retaliation.

10Clauses (f) and (f.1) of subsection 486.2(3) are not applicable on these facts.

11This Court accepts the common-sense proposition that permitting alleged victims of sexual offences to testify with an aid, such as CCTV or a screen, is likely to foster society’s interest in encouraging the reporting of sexual offences and the participation of victims in the criminal justice process.

12As for any other relevant factors, it should be observed that the complainant testified at the preliminary inquiry without any testimonial aid. Further, she was not asked by anyone about the idea of testifying behind a screen. Also, there is no evidence before the Court as to how long the complainant has had her anxiety disorder, but there is evidence (through Ms. Watt) that the complainant believes that the experience of testifying at the preliminary inquiry has worsened the disorder. There is no evidence, and this is important, that the complainant’s said belief arises from her having had to testify at the preliminary inquiry in the same room as the accused (as opposed to testifying at all about the allegations), and that inference cannot be safely drawn by this Court from the evidence of Ms. Watt, particularly paragraph 2c of her affidavit. Finally, there is evidence from Ms. Watt, and this Court accepts, that the CCTV technology at the courthouse in Milton, which building is notorious for technological shortcomings and space deficits, is better now than it was previously. For example, there is an ongoing criminal jury trial in the building in which a witness just testified at length via CCTV, without issues as per the evidence of Ms. Watt, which evidence I accept.

13This is not an exercise in counting checkmarks in the column of “in favour of CCTV” and in the column of “not in favour”. The Court’s discretion ought to be exercised in a more holistic way, taking into account all of the circumstances. The penultimate question is whether the Crown has established on balance that CCTV would facilitate the giving by this complainant of a full and candid account of the acts complained of, that is that M.T. forced sexual intercourse on her against her will and despite her vocal protestations to stop. That seriousness of the allegation, what we used to refer to as rape, is another relevant factor that this Court has considered.

14It is a close call. I am bothered by what appears to be a routine practice in Halton of the Crown relying solely on one testimonial aid, that is CCTV. I am bothered by evidence at the hearing that a witness who recently testified behind a screen in another case encountered difficulties doing so. That was a reference to a recent decision of this Court where, on similar facts but a different legislative basis for the application, I denied the Crown’s request for CCTV but permitted the complainant to testify behind a screen. I was there, in the courtroom, for that complainant’s testimony at trial. There were no difficulties whatsoever. None. I am bothered by the failure of the evidence presented on this application to provide any degree of detail of the complainant’s panic disorder and/or whether its post-preliminary inquiry worsening had anything to do with the complainant having had to testify in the same room as the accused.

15Nevertheless, each case must be decided on its own. The test here is different, and less onerous, than it was in the recent decision of this Court referred to above. The evidence on this application and the seriousness of this allegation are different too. On the totality of the circumstances, despite my reservations outlined above, I am persuaded that CCTV would facilitate this complainant giving a full and candid account of what she says happened to her in the bedroom, at the hands of M.T.

16Thus, I exercise my discretion in favour of granting the order sought by the Crown. The complainant may testify at trial via CCTV, pursuant to subsection 486.2(2) of the Criminal Code.

17I would like to express commendation to Mr. Brooks, defence counsel, for not dwelling on the procedural irregularities of this application and instead permitting it to be adjudicated on its merits. That is good advocacy.

Conlan J.