Court File and Parties
Court File No.: CR-22-56 Date: 2022-12-28 Superior Court of Justice - Ontario
Re: R. v. O.J
Before: Justice M.D. McArthur
Counsel: A. Orlov, Counsel for the Crown G. Snow, Counsel for the Defendant
Heard: December 22, 2022
Endorsement Re CCTV Application
[1] The Crown brings this application pursuant to s. 486.2(2) of the Criminal Code of Canada seeking a ruling that the complainant, N.K., be permitted to testify at trial by way of closed-circuit television (“CCTV”).
[2] The accused opposes this application.
The Issue
[3] The issue is whether witness will be permitted by the court to testify outside the courtroom.
[4] The Crown must satisfy the court on the balance of probabilities that complainant’s giving of a full and candid account of the allegation would be facilitated by testifying in the CCTV suite and outside the courtroom.
Factual Background
[5] O.J. is charged with a single incident and count of sexual assault upon the complainant in May 2016. The matter will proceed to trial before a jury commencing June 12, 2023.
[6] N.K. testified on this application by CCTV. She is now age 37 years. She is under no mental or physical disabilities. She is articulate and was confident, composed and clear in her testimony, both in chief and in cross-examination on this application. She testified that she was not anxious coming before the court on this hearing.
[7] The accused was her ex-partner. They met in 2011/2012. They resided together for the better part of 2013 to 2014. They did not marry. They are the parents of a daughter who is now age 7 years and born in 2015. The complainant also has a ten-year old son from another relationship.
[8] The alleged incident is one occasion in May 2016 at the residence of N.K. Their daughter was then approximately 9 months old. The parties had an argument, and the daughter awoke. The complainant went in and removed the daughter from the crib. The accused followed the complainant into the bedroom and pushed her onto the bed while the complainant held onto the child. The accused is alleged to undo his clothing and opened the complainant’s dress and had non-consensual vaginal intercourse to the point of ejaculation while the complainant held onto the daughter. N.K. protested and told him to stop. The complainant reported the incident to police in October 2020 which led to the charge before the court.
[9] N.K. testified and expressed concern testifying in the same court room as the accused; she is concerned for her safety, she gets nervous when she sees him, she gets a little bit numb, needs to use the washroom a lot, stops talking and feels petrified with him in the court room.
[10] N.K. testified she participated in family court proceedings involving the accused in 2015-2016 that took place in London in this same courthouse. She had legal counsel in the family court proceeding. She testified she addressed the judge in family court from the counsel table and the accused was seated a few feet away from her. There were no incidents of concern expressed. She was successful in that proceeding.
[11] She testified she felt scared, nervous, intense and anxious when she was in the same courtroom in the family proceedings. She testified her concern for safety is based on the accused having no respect for authority. There were no examples of this in relation to the court or otherwise. She was not aware that there are security officers in court. She did testify that he pays child support for their daughter. During the family proceedings, there were no issues that arose that required court security involvement.
[12] After the completion off the family court proceedings, N.K. continued communicate and had other interpersonal interactions with the accused. She testified that the accused had not threaten her. She did testify that on one occasion a third-party female named Gracie called her and alleged the complainant called the police on the accused.
[13] N.K. testified that she was recently contacted by the investigating officer and then with a person from the Victim Witness program with whom she expressed these concerns. She testified that she was prepared to attend and testify in court if required and stated she may need some time if stuttering and a pause in order to carry on.
[14] O.J. did not file evidence on the application.
[15] The Crown bears the burden of proof on this application. The Crown is required to meet its evidentiary burden on a balance of probabilities.
The Law
[16] The general rule is that witnesses are required to testify in open court.
[17] Historically, testimony via CCTV was only available for children and persons with developmental disabilities and only with respect to certain limited enumerated offences. Bill C–2: “Protection of Children and Other Vulnerable Persons Amendments to the Criminal Code and Canada Evidence Act”, extended the use of testimonial aids to vulnerable adult victims and witnesses.
[18] The Supreme Court of Canada in R. v. Levogiannis 1993 CanLII 47 (SCC), [1993] S.C.J. No. 70 considered the constitutionality of s.486(2.1) which provided for the use of CCTV and other testimonial aids in a judge-alone trial with a child victim. Madame Justice L’Heureux-Dubé for the court stated at paragraph 14:
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.
[19] There is no constitutional right to confront the complainant face to face. The ultimate goal is to enhance the truth-seeking function of the criminal court process mindful that the process must also balance the rights of the accused to full answer and defence.
[20] Before the amendments in July of 2015 which did not include adult witnesses not under a disability, the court could make such an order only where it was necessary to obtain a full and candid account of the acts complained of. An order may now be made where it would facilitate the giving of a full and candid account of the acts complained of or otherwise be in the interest of the proper administration of justice.
[21] To determine whether a witness will be permitted to testify outside the courtroom, the court is required to consider the factors listed in s. 486.2(3) of the Criminal Code which are as follows:
(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.
[22] The implications “to facilitate” denotes proof of underlying concerns or constellation of concerns that lead to impediment(s) that adversely influence a full and candid account of the allegation. As in R. v. C.D. 2021 ONSC 6995, at para 60,
the court can “take ‘full’ to mean more likely to include greater detail and ‘candid’ to mean that she will be forthcoming and straightforward in her evidence.”
Analysis and Discussion
[23] This case will proceed before a 12-member jury. In view of the allegation of a sexual assault against the accused, N.K. will be asked detailed questions of a sensitive nature relating to a single incident in her home with a former domestic partner with whom she has been separated and since had contact.
[24] N.K. expressed some safety concerns and fear with the accused also present in the open court. The implication from N.K.’s testimony is that the physical presence of the accused could distract her and cause her some apprehension while testifying. This court is also mindful of N.K.’s indications that a pause or break might be sufficient for her if she testified in the court room.
[25] It is important that the factors inform the court in relation to the witness’ ability to provide a full and candid account of the incident underlying the allegation, not simply make testifying subjectively easier for any particular witness. Otherwise, the legislative provision could effectively be rendered meaningless.
[26] This court has considered the enumerated statutory factors of 486.2(3), specifically that N.K. is a 37 year old, mature and articulate individual without disabilities who, as a young mother, has most capably and responsibly managed a separated relationship that has involved court processes at this location on earlier occasions with the accused in the same court room. The alleged offence is sexual assault from an incident at her home.
[27] This court also takes into account society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. This situation demonstrates a complainant who has come forward with her complaint and who has been sensitively advised throughout by authorities who sought her input to encourage her full and complete participation in the process and also addressed alternatives so that she could consider testifying before the court.
[28] Most persons who come before the court have apprehensions and concerns about their participation in a public court process. Such concerns will naturally be elevated with witnesses generally and those who have been victimized sexually. However, as here, the concerns of the witness could and would be addressed by recognized and effective usual alternatives as and when desired by that witness.
[29] The context of modern security measures at this courthouse, its court rooms also include security officers in attendance throughout the proceedings, should also be commented upon. These measures are now the norm at court and should be known and expected by all members of the public and made known with witnesses specifically. This court is vigilant about security and safety measures, insists on civility, proper decorum of all parties, effectively responds to changing situations to ensure the safety, confidence, respect and the full participation of all persons, particularly witnesses.
[30] This court also notes there was no medical or other evidence tendered that spoke to emotional depth or other effects on the complainant. This does not minimize sexual assault or other serious personal violations. This evidence feature has been available on other applications but is not a necessary part of a Crown application. It is one available area of evidence that can assist the court in considering the nature of the offence and other enumerated factors.
[31] Furthermore, the court cannot speculate on emotional features or difficulties that might arise in general at trial and acquiesce to a default position to use testimonial alternatives out of caution. The legislation is clearly focussed on the ability of the witness to provide a full and candid account of the acts complained of.
[32] This case is unlike the recent case of R. v. Adams, 2022 ONSC 3225 where Justice Gorman permitted the complainant testify by CCTV where the complainant alleged to have been serially sexually assaulted by three accused persons over a few hours. She found compelling that the complainant was afraid she did not think she would be able to face them all again in court, that “nothing’s going to come out” and “I am not going to be able to do it”, that she would go into an anxiety or panic attack and not be able to talk” and that she wanted to “be able to tell my story...without freezing up.”
[33] In this case, N.K. presents as composed, capable and most articulate with concerns about the accused’s presence in court with her expressed ability to testify if provided pauses and breaks if needed.
[34] Having regard to the factors under s. 486.2(3) I find the evidential threshold required to make the requested order for the use by the complainant of CCTV as a testimonial aid has not been met in this case. The court acknowledges a perspective and desire that makes the CCTV subjectively appealing, however, based on the evidence before the court, the complainant is most capable to provide a full and candid account of the allegations without the likely impairments negatively effecting a full and candid account of the acts complained of.
[35] This court observes that the testimony of the complainant on this application was provided by CCTV. CCTV was once novel. The legislation and the technology have since substantially evolved. Increasingly, our courtrooms are becoming more equipped to operate on a hybrid basis and have increased technological capabilities. This allows the court to be more responsive to timely reconsiderations and to make changes where difficulties and demands arise.
Disposition
[36] The Crown has not satisfied the court that the use of CCTV suite will more likely facilitate N.K.’s providing a full and candid account of the acts complained of based on the evidence presented.
[37] The application is dismissed.
[38] This court acknowledges that any pauses or breaks would be available in any event to the complainant if and where difficulties arose in her testimony, however unlikely that may occur as found here.
Justice M.D. McArthur
Date: December 28, 2022