Court File and Parties
COURT FILE NO.: 8427/21
DATE: 2022-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
David Didiodato, Counsel for the Applicant
- and -
A.R.
Wayne A. Chorney, Counsel for the Respondent
HEARD: September 20, 2022
VARPIO J.
REASONS ON 714.2 APPLICATION
[1] This is an application pursuant to s. 714.2 of the Criminal Code of Canada seeking an order permitting the complainant in a sexual assault case to testify via Zoom link.
[2] The incident in question is alleged to have occurred on August 17, 2019 and the complainant is, of course, the Crown’s key witness.
[3] A trial was scheduled for February 14 to 16, 2022 but same was adjourned as a result of the COVID directive regarding in-person proceedings.
[4] On February 2, 2022, the matter was rescheduled to September 21, 2022.
[5] On August 25, 2022, the complainant was served with a subpoena.
[6] Between August 30, 2022 and September 6, 2022, the Sault Ste. Marie Victim Witness Assistance Program (“VWAP”) attempted to contact the complainant to no avail. On September 9, 2022, the complainant contacted VWAP and advised that she would not be able to attend the trial as she was in California visiting her child.
[7] On September 9, 2022, the Crown sought an interview with the complainant. The complainant advised on that date that she was not available to speak until September 15, 2022. On September 15, 2022, the Crown spoke with the complainant who indicated that she had previously purchased tickets on July 31, 2022 to fly to California to visit her child. Her flight departed on September 15, 2022. She indicated that she was staying at a hotel and that she had access to a computer, a microphone and a webcam. The application materials corroborate the witness’ timeline.
[8] The Crown seeks an order under s. 714.2 of the Criminal Code to enable the complainant to testify from California via Zoom.
ANALYSIS
[9] Section 714.1 of the Criminal Code of Canada states:
Audioconference and videoconference — witness in Canada
714.1 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.
[10] Section 714.2 of the Criminal Code of Canada states:
Videoconference — witness outside Canada
714.2 (1) 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.
Notice
(2) A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than 10 days before the witness is scheduled to testify.
[11] The competing interests in these sections were canvassed by Akhtar J. who stated at paras. 9 to 11of R. v. Robinson, 2021 ONSC 2447:
The most obvious difference between the two [sections] is that s. 714.1 confers a discretionary power upon the trial judge whereas s. 714.2 mandates the reception of videoconference evidence subject to a party demonstrating why doing so would be contrary to the principles of fundamental justice.
The mandatory nature of the section means that the onus falls on the parties opposing the application. The wording of the section acknowledges the principle that a witness cannot be compelled to return to Canada to testify: R. v. Schertzer, 2010 ONSC 6686, at para. 34; R. v. Singh, 2015 ONSC 6823, at para. 52.
Another difference between the sections is that the s. 714.1 test is based on the balancing of statutory factors whereas s. 714.2 imposes a significantly more stringent threshold to overcome: R. v. Mapp-Farouk, 2020 ONSC 5040, at paras. 8-11. Accordingly, some of the cases relied upon by the respondents such as R. v. Brown, 2021 ONCJ 123 and R. v. K.S., 2020 ONCJ 328, which concern s. 714.1, are of limited assistance.
[12] Mr. Ryan submits that granting the application is contrary to the principles of fundamental justice because:
The Crown’s office appears to have neglected to notify the complainant of the trial date when same was set in February of 2022;
The complainant did nothing for three weeks once she was served with the subpoena on August 25, 2022;
The Crown is gaining the benefit of a much more beneficial test (under s. 714.2) because the complainant is happenstantially in California rather than elsewhere in Canada visiting her child (which would in turn cause the test to be that described in s. 714.1);
The court is deprived of the benefit of seeing the witness in person, which weakens the truth-finding function;
The cross-examination may involve questioning using a diagram of a room (which the defence rightly concedes is a negligible concern) and cross-examination on the complainant’s police statement (which is a more meaningful concern); and
There are no guarantees that the environment within which the witness will testify imports the level of solemnity and gravity that a courtroom possesses. For example, there is no way to ensure that there is adequate internet connectivity or that the witness is alone.
[13] I accept these points as being salient with a couple of notable exceptions. First, since the advent of COVID, courts have entertained a number of evolutions including the fact that Zoom court hearings are now common. While I agree that it is generally preferrable to have witnesses testify in person[^1], especially important witnesses whose credibility is in issue, in-person testimony is not necessary to ensure a fair trial: see R. v. Schertzer 2010 ONSC 6686; R. v. Blake and Khabemba, 2019 ONSC 6026 at para. 15, 16; R. v. S.D.L. 20717 NSCA 58; and R. v. Stevens [2019] N.S.J. No. 278 at paras. 15 to 28.
[14] In Schertzer, Pardu J. (as she then was), granted a s. 714.2 application regarding a key witness whose credibility was in issue. Pardu J. reviewed the principles of fundamental justice at paras. 35 and 36:
The principles of fundamental justice require that accused persons have a fair trial. In R. v. Rose (1998), 1998 CanLII 768 (SCC), 129 C.C.C. (3d) 449 (S.C.C.) the Court observed at p. 99,
As suggested by Sopinka J. for the majority of this Court in Dersch v. Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 S.C.R. 1505, however, the right to make full answer and defence does not imply an entitlement to those rules and procedures most likely to result in a finding of innocence. Rather, the right entitles the accused to rules and procedures which are fair in the manner in which they enable the accused to defend against and answer the Crown's case. As stated by Sopinka J., at p. 1515:
The right to full answer and defence does not imply that an accused can have, under the rubric of the Charter, an overhaul of the whole law of evidence such that a statement inadmissible under, for instance, the hearsay exclusion, would be admissible if it tended to prove his or her innocence.
The sentiment expressed by Sopinka J. in Dersch accords with the more general principle stated by La Forest J. for the majority of the Court in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 361-62, that while "at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness", nevertheless the entitlement to procedural fairness does not entitle the accused to "the most favourable procedures that could possibly be imagined".
[15] At paras. 37 and 38, Pardu J. then reviewed the principles of fundamental justice as they pertain to the accused’s right to confront his or her accuser:
A fair trial does not always require that an accused physically confront a witness in person. In R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327, for example, the court concluded that s. 486.2 of the Criminal Code which permitted a child to testify behind a screen or by closed circuit television from outside the courtroom, did not violate the accused's right to a fair trial. The court noted,
The examination of whether an accused's rights are infringed encompasses multifaceted considerations, such as the rights of witnesses, in this case children, the rights of accused and courts' duties to ascertain the truth. The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.
and further,
The principles of fundamental justice provided by s. 7 must reflect a diversity of interests, including the rights of an accused, as well as the interests of society (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, supra, at p. 603; Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143; and Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519). While the objective of the judicial process is the attainment of truth, as this Court has reiterated in L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, supra, the principles of fundamental justice require that the criminal process be a fair one. It must enable the trier of fact to "get at the truth and properly and fairly dispose of the case" while at the same time providing the accused with the opportunity to make a full defence (R. v. Seaboyer, supra, at p. 608).
In R. v. N.S., 2010 ONCA 670, the Court observed at p. 53 that there are many contexts in which the accused is not physically face to face with a Crown witness,
While it is clear that face to face confrontation between the accused and prosecution witnesses is the accepted norm in Canadian criminal courts, there is no independent constitutional right to a face to face confrontation: Levogiannis, at p. 367. There are a number of evidentiary rules, both statutory (s. 715 of the Criminal Code) and common law (some hearsay exceptions) that admit statements made by declarants who do not testify at trial at all. Departures from the traditional face to face public confrontation between accused and witness will run afoul of the Charter only if they result in a denial of a fair trial to the accused. The Charter focuses not on face to face confrontation per se, but on the effect of any limitation on that confrontation on the fairness of the trial. Fairness takes into account the interests of the accused, the witness and the broader societal concern that the process maintains public confidence.
[16] With respect to this case, I have concerns about the manner in which this matter got to this point[^2] and, had the matter proceeded under s. 714.1 of the Criminal Code, or had Parliament provided a more specific definition of a witness “outside of Canada” that excluded witnesses who were temporarily away from the country on vacation, I might not have granted the application.
[17] Nonetheless, I am bound by Parliament’s choice of working and the complainant is, in fact, outside Canada. Section 714.2 is therefore the governing provision. The defence’s understandable concerns do not amount to a contravention of the principles of fundamental justice because witnesses often testify via Zoom, even if same is not necessarily preferrable in all circumstances. The application is therefore granted.
[18] I do so, however, on the understanding that the witness’ video equipment is in good working order. If it is not, I will deal with the matter at that time.
[19] Further, I grant the application on the following terms:
The complainant must be alone in a private room;
At the outset of proceedings and at any time during her testimony when requested to do so by the trial judge, the complainant must move the camera on the device she is using to demonstrate that no one else is present;
All other electronic devices in the room must be turned off including all mobile phones;
The complainant cannot use the keyboard, mouse or trackpad of the device she is using when testifying;
The complainant must remain on camera at all times during her testimony;
The complainant will not be permitted to interact with anyone during recesses in her evidence;
The complainant will be warned that no recording of the hearing is permissible.
Varpio J.
Released: September 21, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ADRIAN RYAN
REASONS on s. 714.2 application
Varpio J.
Released: September 21, 2022
[^1]: I agree with Conlan J’s statement in R. v. J.D. 2022 ONSC 2540 at para. 7.
[^2]: This statement should not be taken as a reflection on Mr. Didiodato’s conduct of the matter. Defence counsel concedes, and I agree, that his conduct has met all appropriate standards.