COURT FILE NO.: CR-38/21
DATE: 20220131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K.A. and A.S.A.
Ms. A. Stevenson, for the Crown
Ms. D. Lafleur, for K.A, Accused
Mr. R. Tomovski, for A.S.A., Accused
HEARD: January 28, 2022
ENDORSEMENT - CROWN’S APPLICATION UNDER SECTIONS 714.1 AND 715.25 OF THE CRIMINAL CODE
Conlan J.
I. The Indictment
[1] The two accused persons are charged with very serious offences under sections 279.01(1), 286.3(1), 286.4, 279.011, and 286.2(1) of the Criminal Code.
II. The Trial
[2] The trial of the accused is scheduled to take place before a jury commencing in May 2022.
III. The Crown’s Pretrial Application to be Heard on a Future Date
[3] Over three weeks in February and March 2022, an in-person Court hearing is scheduled for a Crown application to adduce hearsay evidence at trial, specifically, to admit for its truth (i) the content of an oral statement allegedly made by the complainant to her mother and (ii) the content of an audio-video statement made by the complainant to the police.
IV. The Within Application by the Crown
[4] Over Zoom, on January 28, 2022, this Court heard an application by the Crown for an order permitting all Crown witnesses to testify remotely, by Zoom, at the upcoming hearing regarding the Crown’s hearsay evidence application referred to above. The within application also requests an order that the Crown participate by Zoom at the said hearing.
[5] The witnesses who are expected to testify in February and March 2022, on the Crown’s hearsay evidence application, are from Ontario and Quebec. They are all police officers, aside from the complainant. The complainant is in Quebec. I have gleaned that information from the supporting affidavit filed by the Crown on the within application, though I am not sure why that affidavit says nothing about the complainant’s mother. Presumably, the mother is also a Crown witness on the hearsay evidence application.
[6] The within application is opposed by both accused persons, except for the request under section 715.25 of the Criminal Code (that the Crown participate by Zoom at the upcoming hearing).
V. The Evidence on the Within Application
[7] There was no viva voce evidence presented on the within application. The only written evidence is a fairly brief affidavit sworn by the officer-in-charge of the investigation.
[8] That affidavit sets out several bases for the within application: (i) the personal circumstances of some of the proposed witnesses (for example, one of the police officers in Quebec has an infant child and a supervisor at work who does not support his in-person attendance at Court in Ontario), (ii) the officer-in-charge has been told by the person who arranges for interpreters that it will be very difficult to get two fully accredited French language interpreters to attend the proceedings in-person, because of labour issues and because of COVID-19 concerns, (iii) the costs that will be incurred in having Quebec witnesses testify in-person in Ontario, and (iv) the challenges presented by COVID-19 generally.
[9] I pause here to note that we had two French language interpreters present, over Zoom, at Court on January 28, 2022. One was fully accredited. One was certified but not fully accredited.
VI. Discussion and Analysis
The Crown’s Participation at the Upcoming Hearing
[10] Without objection by either accused, the Crown’s application under section 715.25 of the Criminal Code is granted. To protect the privacy of the Crown with carriage of the matter, nothing further need be said.
The Participation of the Crown Witnesses at the Upcoming Hearing
[11] In terms of the legislation, section 714.1 of the Criminal Code is discretionary. The penultimate question is whether “it would be appropriate”, having regard to all of the circumstances including but not limited to those expressly mentioned in the section, that the witness in question give evidence by, in this case, Zoom videoconference.
[12] Let us first examine the various factors expressly mentioned in section 714.1.
[13] With all of these Crown witnesses, the factor of their location and their personal circumstances weighs against the Crown’s application. The witnesses are all located in this province or in Quebec, the neighbouring province. They are all within several hours, maximum, regardless of the mode of transportation, of Halton Region. There is no evidence from any of the Crown witnesses about their personal circumstances. The evidence that does exist, that from the officer-in-charge, does not disclose any personal circumstance of any Crown witness that would cause this Court to conclude that his or her personal attendance in a courtroom would cause undue hardship.
[14] With respect, having a very young child, or being on parental leave, or building a new house, or having a difficult supervisor at work, as examples, are hardly the types of personal circumstances that would tip the balancing in favour of permitting remote testimony. They are a part of life experienced by a countless number of witnesses, jurors, lawyers, courtroom staff, court services staff, and judicial officers who attend courthouses in this country every day, even now.
[15] With all of these Crown witnesses, the factor of the costs of a personal attendance in a courtroom also weighs against the Crown’s application. There is no evidence from any of the Crown witnesses about their own projected costs. The evidence that does exist, that from the officer-in-charge, does not approach anything that this Court considers to be exorbitant. Relatively cheap flights, if airplane travel is desired, $110.00 per night for a hotel room, and meals and incidentals (see paragraph 12 of the officer’s affidavit) are what is being projected. These are routine costs; there is nothing extraordinary about them.
[16] With all of these Crown witnesses, I know nothing about the nature of their anticipated evidence. I can surmise that the complainant will testify about her statements to her mother and to the police, and that the mother will speak about what her daughter told her, and that the police officers will speak about their interactions with the complainant and her mother in order to bolster the reliability, and hence the admissibility, of the proposed hearsay evidence. But there is no evidence filed on the application to support that conjecture. As it is the Crown that has the burden of proof here, this factor also weighs against the Crown’s application.
[17] The factor of the suitability of the proposed location for the remote testimony of these Crown witnesses weighs in favour of the Crown’s application. I will accept the Crown’s statement at paragraph 26 of its Form 1 Application – that all of the Crown witnesses are anticipated to testify from a police station or a courthouse. Either place would certainly be a suitable location for remote testimony.
[18] With regard to the factor of the rights of the two accused persons to a fair and public hearing, that weighs against the Crown’s application, and significantly so. The Zoom hearing would not be public. And if the hearing proceeds anything like what happened at Court when we argued this application, which became the effective “exhibit 1” on the application itself, then we are in for a long and cumbersome haul. Through absolutely no fault of the Crown, whose conduct and professionalism is beyond reproach, the hearing of the within application was a nightmare. It does not give me any confidence that three weeks of videoconference to hear a very high-stakes pretrial application would be fair to the accused. What was scheduled to take one hour took three times that long. We started thirty minutes late because the detention facility in Quebec disputed being aware of the matter. The Crown lost internet connection for 24 minutes. The Registrar, working out of a hotel room in Burlington because of the closure of the Milton Courthouse for mould remediation, had her video turn off by itself, repeatedly, while participants (except myself) were in the Zoom waiting room, leaving the Registrar frustrated. The interpretation had to be consecutive, which slowed the matter considerably. The accused in custody had to appear by telephone only, as the detention facility in Quebec insisted that it had no Zoom capability. Ms. Lafleur had troubles being able to speak with her client in private, to seek instructions, because the guard at the detention facility would not permit it. Finally, Ms. Lafleur needed assistance from the Registrar to utilize the break-out room function with Zoom.
[19] Perhaps it was all just bad luck for the Crown. Aberrations, one might conclude. Whatever it was, it certainly did not help the Crown’s application.
[20] With regard to the nature and seriousness of the offences, this factor similarly weighs considerably against the Crown’s application. The charges are extremely serious, often punished upon conviction by lengthy periods of penitentiary imprisonment. Further, their nature means that the verdict often depends significantly on the credibility and reliability of the complainant, and as the Crown fairly acknowledges, “[c]oncerns regarding the use of video technology arise particularly in cases where credibility is at issue” (paragraph 33 of the Crown’s Form 1 Application).
[21] The last factor expressly mentioned in section 714.1 is not applicable here, as it pertains to cases where the witness is expected to testify by audioconference only.
[22] Thus, five of the six applicable factors expressly mentioned in section 714.1 weigh against the Crown’s application.
[23] Two other considerations not expressly mentioned in section 714.1 also, in my opinion, weigh against the Crown’s application – (i) the situation with interpreters and (ii) COVID-19 generally.
[24] On the former, consecutive interpretation is far more time-consuming than simultaneous interpretation, and it would have to be consecutive interpretation throughout the entire three-week hearing over Zoom. Further, I am not satisfied on the evidence filed that it would be easier to arrange for two fully accredited French language interpreters if the hearing is not held in-person; in fact we did not have two fully accredited interpreters for the Zoom hearing when the within application was argued.
[25] On the latter, COVID-19 generally, particularly as it relates to the Omicron variant, the hearing in February and March 2022 will take place after the COVID-19 situation has stabilized enough that the provincial governments in both Ontario and Quebec have decided to loosen restrictions as of January 31st. If we have not learned anything else over the past two years, we do know that a situation of total safety from the virus is not attainable in the foreseeable future, and perhaps never. We cannot suspend in-person criminal matters indefinitely, waiting for something that may never come. We have to adjust to the current circumstances, month to month, week to week, even day to day. Today, the circumstances with the virus are undoubtedly better than they were throughout the past several weeks.
[26] Our children have been going to school in Ontario, most of them, for a month now. The classrooms, I suspect, are all much smaller than the average courtroom. The number of persons in attendance, I suspect, is higher than what would be expected in the average courtroom proceeding, including this one. The plexiglass and other preventive measures installed in courtrooms, I suspect, is not present in the typical classroom. I offer these remarks only to suggest that some alternative perspective is needed, in my respectful view, to countervail the tendency among some (not this Crown or this Crown office, but others) that we might as well continue to resort to 714.1 until such time as this COVID-19 thing is over.
[27] This Court acknowledges the Notice to Profession from Chief Justice Morawetz dated January 19, 2022, which remains in effect until February 28, 2022 and which states that, for criminal matters, “[e]fforts should be made to hear these matters remotely where possible”. I respect and agree with that recommendation. Of course, that assumes that the presiding justice has concluded that it would be appropriate to do so, within the meaning of section 714.1 of the Criminal Code. It would not be appropriate to do so here.
[28] In terms of the jurisprudence, both sides have filed some very helpful decisions. They all turn on their facts, though, and the facts include very different stages of the health pandemic thus far. Looking at the more general principles pertaining to video evidence, however, I do feel compelled to comment on the references at paragraphs 31 and 32 of the Crown’s Form 1 Application and the reliance therein on the decision in R. v. Allen, 2007 ONCJ 209, specifically at paragraphs 26 and 37. I respectfully disagree that video testimony is “only distinguishable from the real thing in the obvious superficial ways”, and that it is in substance equal to having the witness appear in a courtroom, and that video testimony is in some ways superior to in-person evidence. Those sentiments run contrary to what the Court of Appeal for Ontario stated in Woods (Re), 2021 ONCA 190, at paragraph 56. I adopt and set out below paragraph 1 of the factum filed by the accused on the within application.
- Recently, in Woods (Re), Tulloch J.A. on behalf of the Court of Appeal stated:
I am not prepared to treat the difference between an in-person hearing and a videoconference hearing as insignificant. The court must be cautious in endorsing such a broad proposition about the rights of vulnerable people in a time of crisis. Suffice to say, I am persuaded that the Criminal Code treats deviations from in-person hearings as more than mere procedural irregularities
[29] I note, as well, that those sentiments attributed to Allen, supra run contrary to the plain wording of section 714.1 of the Criminal Code. If there was no practical difference between video evidence and in-person testimony, then there would be no detailed test set out for the admissibility of video evidence, which test is discretionary, and which test places the burden squarely on the proffering party (here, the Crown) to show on balance that it would be appropriate to permit the video evidence to be heard.
[30] Finally, I am sure that the learned court in Allen, supra, and the learned judges in the other decisions cited by the Crown at paragraph 32 of its Form 1 Application, were not working in an environment akin to that currently existing in Halton Region, for remote Superior Court proceedings. Our courtroom staff are not working in courtrooms, with established technology. They are working in makeshift “courtrooms”, in small hotel rooms adjacent to the Burlington Convention Centre. The hotel rooms have been cleared of the normal things necessary to the traveller, such as the bed, and reconfigured and rewired for the business of the highest trial court in the province. Often, it goes fairly well, thanks to the immense patience and commendable efforts of the staff and their supervisors. Other times, however, and not infrequently as I alluded to in R. v. D.M., 2021 ONSC 8076, it is a mess. There is no fixed end in sight to the current situation, as the Milton Courthouse remains closed to clean-up mould and to do other related work to the building.
[31] I do not mean to suggest that remote testimony cannot be granted under section 714.1 in Halton Region. It surely can, where appropriate to do so. I am simply suggesting that the current working environment for Zoom hearings in the Superior Court of Justice in Halton Region is unique, and thus the decisions which speak fondly about the advantages of videoconference evidence may not be easily transferable to a discussion of section 714.1 in the context of a prosecution in this jurisdiction currently.
VII. Conclusion
[32] Despite the able submissions of the Crown, who was put in a difficult position given the reluctance of the complainant to testify at all and the apparent trepidation on the part of some of the police officers at the prospect of testifying in a courtroom in Ontario, the Crown’s application under section 714.1 of the Criminal Code is dismissed. As indicated above, the section 715.25 request is granted.
[33] We will discuss at the Court attendance on February 1, 2022 the location where the in-person hearing of the Crown’s hearsay evidence application, in February and March 2022, will take place. We will also discuss at that time the Crown’s concerns about the previously served subpoenas and the fact that they required attendance at the Courthouse in Milton, which building is still closed.
[34] I would like to thank all counsel for their assistance with this matter.
C.J. Conlan
Conlan J.
Released: January 31, 2022
COURT FILE NO.: CR-38/21
DATE: 20220131
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
K.A. and A.S.A.
ENDORSEMENT - CROWN’S APPLICATION UNDER SECTIONS 714.1 AND 715.25 OF THE CRIMINAL CODE
Conlan J.
Released: January 31, 2022