COURT FILE NO.: CR-20-70000079-0000
DATE: 20220609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DINESH ASWAL
David Spence, for the Crown
Victoria Strugurescu, for the Defence
HEARD: June 2, 2022
R.F. GOLDSTEIN J.
[1] Dinesh Aswal is charged with sexually assaulting C.N., the complainant. The Crown alleges that the accused took C.N. to a park for a bonfire over the Canada Day long weekend in 2018. The complainant drank and became intoxicated. They went back to the accused’s apartment. The Crown alleges that the accused continually assaulted the complainant over the rest of the weekend, with occasional respites.
[2] The Crown applies for an order pursuant to s. 486.2(2) of the Criminal Code that the complainant be permitted to testify via closed circuit television (CCTV). The Crown also applies for an order that the complainant have a support dog present and close to her. The trial will commence on June 13, 2022.
[3] At the time of the alleged offences the complainant was 18 years old. The accused was 47. Detective West, the officer-in-charge of the case, filed an affidavit setting out the allegations as well as some personal facts about the complainant. She is apparently on the spectrum for autism and Asperger’s Syndrome. She has attention deficit hyperactivity disorder, or ADHD. In May 2022 Detective West met with the complainant. The complainant said that she was anxious about the upcoming trial. She was having difficulty concentrating. She has been experiencing panic attacks. She told Detective West that she fears confronting the accused in person.
[4] Counsel for Mr. Aswal argues that the application should be dismissed. The complainant testified at the preliminary inquiry in person and had no difficulties. She was responsive to questions. No doubt it would be more pleasant for her to testify outside the presence of the accused, but that is not the test. There is no medical evidence or paper evidence that would confirm the diagnoses of autism, Aspergers, and ADHD. The evidence is insufficient to show that the complainant could not give a full and candid account.
[5] I do not agree. I find that the order should be made.
[6] Section 486.2(2) of the Criminal Code states (and I excerpt the key portions):
486.2 (2) …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… or would otherwise be in the interest of the proper administration of justice.
[7] Section 486.2(3) of the Criminal Code sets out the factors to be considered:
486.2 (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.
[8] The criminal process is a search for the truth. Thus, evidence must be given in a way that facilitates eliciting the truth: R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475 at para. 13 per L'Heureux-Dubé J.
[9] As Backhouse J. noted in R. v. Jimaleh, [2016] O.J. No. 5133, at para. 7, the threshold was lowered in the last set of amendments from “necessary to obtain a full and candid account” to would facilitate the giving of a full and candid account”.
[10] In essence, the Crown must simply show that it is more likely the witness will give a full and candid account with a testimonial aid than without one. As Boswell J. put it in R. v. Evans, [2017] O.J. No. 7628 at para. 22:
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.
[11] When I apply the factors set out in s. 486.2(3) I find that testifying by close-circuit television would facilitate the giving of a full and candid account in this case.
• The complainant is very young – she was 18 at the time of the alleged offences;
• The complainant is on the spectrum for autism and Aspergers. I do not agree that I require medical notes or a diagnosis of some kind on a summary application of this nature. Counsel routinely make factual assertions in criminal matters that go largely unchallenged. There was no cross-examination of the officer; and no request by defence counsel prior to the hearing for documentation. If it turns out that the complainant was lying to the police officer about having Aspergers or being on the spectrum for autism, then that will be a fruitful area of cross-examination for the defence;
• This is a sexual assault case. Complainants in these cases are entitled to be treated with dignity and respect;
• I am not satisfied that the complainant needs protection from the accused or that there is a risk of intimidation. While this factor does not militate in favour of granting the order, it is only one factor to be balance;
• Society’s interest in encouraging the reporting of offences, especially sexual offences, has a role to play here. While every case must be decided on its individual merits, it is sexual offences that usually have the lowest reporting rates; and it is in sexual offences that complainants are at the greatest risk of having their dignity and privacy assailed.
[12] It is certainly also a factor that in 2022 all the participants in our system now have a lot of experience with taking evidence remotely. It is now routine in our courts. While the preference is always for in-person testimony, our courts, and society in general, is now quite used to operating this way. I would even venture to say that remote meetings or proceedings of all kinds are so routine that juries are likely to be very used to it. Jury instructions must, of course, address remote testimony, but there can be no doubt that many jurors – maybe even most jurors – would think nothing of it if a witness testified remotely. That aspect is not prejudicial to the accused. Indeed, I find that any prejudice to the accused (which I believe is minimal) will be outweighed by the likelihood that the complainant will give a full and candid account.
[13] It is true that in Evans, the complainant testified at the preliminary inquiry without apparent difficulty. That is true of this case. I agree with Boswell J.’s observation at para. 29:
A.B. testified at the preliminary hearing. She has told the officer in charge that she felt she wasn't able to testify fully and candidly on that occasion due to anxiety caused by being in the presence of Mr. Evans. I have no way, of course, to confirm that statement. Counsel did not point me to any portion of her preliminary hearing evidence that provided objective support for the assertion that A.B. was having difficulty testifying. The transcript would not, of course, tell me anything about what was going on mentally or emotionally with A.B. at the time. (emphasis added.)
[14] There is no evidence here that the preliminary inquiry specifically caused the complainant to be apprehensive about the trial. But I can certainly make the uncontroversial observation that virtually everyone finds cross-examination stressful and unpleasant. Those who experience it, especially as complainants, are almost never eager to repeat it. The fact that the complainant – likely a total novice in the criminal justice system – did not outwardly manifest any signs of stress or discomfort at the preliminary inquiry tells us very little. Demeanour evidence is not a reliable indicator of truthfulness. Why should it be any more reliable as an indicator of stress and discomfort?
[15] When I balance the factors I find that the complainant is more likely than not to give a full and candid account if she testifies using CCTV. I place great weight on the fact that she has Aspergers and is on the autism spectrum. I accept the unchallenged evidence that she is having panic attacks and will be unable to properly testify if she directly sees the accused. It is in the interests of justice that she be permitted to testify by CCTV.
Released: June 9, 2022
COURT FILE NO.: CR-20-70000079-0000
DATE: 20220609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DINESH ASWAL
REASONS FOR JUDGMENT ON S. 486.2(2) APPLICATION
R.F. Goldstein J.