Court File and Parties

COURT FILE NO.: CR-21-635 DATE: 2023 03 22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING I. Osowski, for the Crown

- and -

J.S. B. Smith, for the Defendant Defendant

HEARD: February 27th and 28th, 2023

REASONS FOR JUDGMENT

LEMAY J.

[1] The accused, J.S., is charged with one count of assault and two counts of sexual assault. The complainant for all three charges is A.B., who was married to the accused. They have four children together.

[2] The assault is alleged to have taken place in 2012 while the sexual assaults are alleged to have taken place in May and June of 2016. The parties separated at some point around May of 2016. The complainant went to the police with these allegations at the end of April 2020 and the accused was charged very shortly thereafter.

[3] The trial was scheduled to start before me, sitting with a jury, on February 27th, 2023. The week prior to trial, Crown counsel brought a motion to have the complainant testify remotely from her home in Renfrew County. The motion was argued in the morning of February 27th, 2023, and the morning of February 28th, 2023 while we were picking the jury. I heard viva voce testimony from the complainant and from Lee Ann Brandt, a victim services worker.

[4] At the conclusion of argument, I directed that the complainant appear in person to testify and dismissed the Crown’s motion with reasons to follow. These are those reasons.

Background

a) The Parties and the Relationship

[5] The complainant and the accused were married when they were quite young. They had met at a church event when they were both teenagers. They have three children together.

[6] The parties apparently had tensions in their marriage starting in 2012. In that year, the complainant alleges that the accused assaulted her. He is facing a charge for this alleged assault. This assault was reported to police in April of 2020.

[7] The parties separated in May of 2016. The indictment states that the accused allegedly sexually assaulted the complainant on two occasions as follows:

a) Sometime between May 10th and May 20th, 2016 b) Sometime between June 1st and June 14th, 2016.

[8] The parties moved to separate residences in September of 2016. The children had their primary residency with the complainant while having regular visits with the accused. The charges were laid in either late April or early May of 2020. The parties had co-parented their children up to the time that the charges were laid.

[9] The complainant testified that she was afraid of the accused. She provided other reasons for seeking remote testimony, and I will address those issues in the next section.

[10] I was advised at the outset of the trial that the Crown’s only witness would be the complainant. As a result, the question of credibility and whether the complainant’s evidence should be believed beyond a reasonable doubt would be the key issue in this trial.

b) The Request for Remote Testimony

[11] The complainant now lives in Renfrew County. She lives there with four of her five children. It is approximately a six hour drive from her residence in Renfrew County to the courthouse in Brampton. The Crown acknowledges that the complainant is under subpoena and the expenses that the complainant will incur if she is required to travel to Brampton will be covered.

[12] The complainant’s eldest child (who is also the accused’s eldest child) continues to live in the Greater Toronto Area on her own. The four children who reside with the complainant are 17, 16, 5 and 3. The 17 year old will be 18 at some point this calendar year, and would (on a regular schedule) finish high school this year.

[13] The complainant also testified that it was “triggering” for her to be in the same room as J.S. In her examination in chief, she explained that there was a history between the two of them and that she was concerned that J.S. would follow her if she was required to come to court.

[14] The complainant also testified that she was suffering from depression, anxiety and fibromyalgia and that she was on daily medication. She provided two medical notes, as follows:

[Ms. B.] has requested this letter and the following information provided. I am the Family Physician for Ms. B. and she has been under my care since October 2017. I am writing this letter in support of her to be able to testify remotely instead of in person in court. The reason for this request is ongoing anxiety and situational stress that is triggered by the presence of her ex-husband. She has concern for her safety and well being and I am worried about further deterioration of her physical and mental health with more exposure to this stressor. If this request could be accommodated she would greatly appreciate it.

and

Ms. B has requested this letter and the following information provided. In addition to my previous letter;

She does have a diagnosis of major depression and fibromyalgia. She is concerned that attending trial in person may trigger symptoms of depression, anxiety and pain due to the stress of seeing her ex-husband in person.

[15] I will deal with the complainant’s testimony about her medical condition in more detail below.

[16] I note that the Crown has asked that the complainant be permitted to testify from her home in Renfrew County and not from a courthouse or other facility. The complainant testified that she will be able to testify from a bedroom where she will not be disturbed. I acknowledged that, during the hearing of this motion, she testified remotely for more than an hour and the internet connection seemed to be fine.

[17] However, I also note that the Crown has specifically not requested any lesser orders, such as requiring the complainant to testify in a witness room next to the courtroom or requiring her to attend at the Renfrew County Courthouse in order to deliver her testimony remotely from a location that is supervised by court staff. Crown counsel indicated that he was only seeking an order for the complainant to provide her testimony remotely from her home and that if I was not prepared to grant that order, then the complainant would come and testify in person in the courtroom. The Crown did not explain the reasons why it was not seeking a lesser order.

Positions of the Parties

[18] The Crown requested that the complainant be permitted to testify remotely from her home on the basis of a number of factors as follows:

a) Allowing the complainant to testify from home will permit her to provide full and candid testimony. The complainant was fearful of the accused and would find being in court with him unduly stressful. b) The complainant has medical conditions, including fibromyalgia, and should be permitted to testify remotely. Given her medical and personal stressors, the Crown argues that it would be too much of a burden on the complainant to have to testify in person. c) The complainant has child care issues that justify remote testimony.

[19] The Crown argued that its request should be granted under either section 486.2 or 714.1 of the Criminal Code, R.S.C., 1985, c. C-46. Crown counsel argued that both sections were available for the Court to make orders granting a witness leave to provide testimony virtually from their home.

[20] The defence opposed the request for virtual testimony. First, the defence argued that this application arose under section 714.1 and not under section 486.2. Second, the defence argued that the case law does not support the request for virtual testimony given the facts of this case.

Issues

[21] The issues that I need to determine on this motion are as follows:

a) Whether this motion arises under section 486.2(2) or 714.1 of the Criminal Code. b) Whether the complainant should be permitted to testify from her home in Renfrew County by Zoom rather than being required to come to the Courthouse to provide testimony in person.

[22] I will deal with each issue in turn.

Issue #1 - Which Section Governs This Application?

[23] Section 486.2(2) of the Criminal Code states:

486.2 (2) Despite section 650, in any proceedings against an accused, 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 of the acts complained of or would otherwise be in the interest of the proper administration of justice.

[24] Section 714.1 of the Criminal Code states:

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 in person;

(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.

[25] The reason why I must grapple with the question of which section governs this application is because there are different legal tests that would apply depending on which section applies to this application.

[26] I start with some general observations. First, the presumptive rule is that, for an adversarial trial, the witnesses will be in the courtroom in the presence of the accused, the public and the jury: R. v. Blake and Khabemba, 2019 ONSC 6026, at para. 15. Second, the onus in an application such as this rests with the Crown: R. v. O’Dea, 2021 ONSC 3706, at para. 9.

[27] Further, in a case such as this, where credibility is a key issue, the cases decided under section 714.1 require the existence of exceptional circumstances before a complainant will be permitted to testify remotely: R. v. S.D.L., 2017 NSCA 58. In contrast, the test under section 486.2 does not require exceptional circumstances: Blake, at para. 20.

[28] In my view, this application arises under section 714.1 for the following reasons. First, section 714.1 specifically addresses witnesses giving evidence by audioconference or videoconference, while section 486.2(2) speaks to what Crown counsel referred to in argument as “testimonial aids”. Those aids include the ability to testify behind a screen or other device or from a different room in the courthouse. The request in this case is more congruent to a request to testify by audioconference or videoconference which appears to fit more neatly within section 714.1.

[29] The second reason is that “testimonial aids” under section 486.2 all envision court staff being present when the complainant testifies. Indeed, some of these aids (such as a screen) envision the complainant being in the physical presence of the jury and counsel when providing testimony.

[30] In other words, the provisions of 714.1 deal with the circumstances in which a witness will be permitted to provide remote testimony in an environment that is not controlled by the court. Section 486.2 deals with accommodations to be provided to vulnerable witnesses within the ambit of the court’s facilities.

[31] Third, and related to the previous point, there is the interpretation of the specific words in the statute. It is a principle of statutory interpretation that each word (and section) of a statute is to be given its plain and ordinary meaning. It is also a principle of statutory interpretation that each part of a legislative amendment must have meaning.

[32] In this case, the only way to give effect to both of these principles is to accept that section 486.2 and section 714.1 have different purposes. The purpose of section 486.2 is to allow testimonial aids (including testifying by CCTV) for witnesses who testify within the court’s precincts. That testimony can be provided remotely as long as it is controlled by court staff. The purpose of section 714.1 is to allow for uncontrolled audio or video testimony.

[33] Fourth, the legislative history of these provisions supports the conclusion that this application should be decided under section 714.1. Both section 714.1 and 486.2 have been the subject of legislative amendments since the different tests under them were defined. It was open to the legislature to have specifically added video and/or audioconferencing to section 486.2. The legislature has not done so, which suggests that the circumstances in which the two provisions are used remains separate and that a request such as this is properly made under section 714.1.

[34] The legislature would also have been aware of the tests that courts have applied under section 714.1. The case law has been clear for a long time that the right to provide remote testimony under section 714.1 has been circumscribed to exceptional circumstances: R. v. Dessouza, 2012 ONSC 145, at para. 26. Nothing in the recent amendments (the addition of paragraphs (d) to (g)) would seem to affect that conclusion.

[35] Fifth, I note that these conclusions also fit with the different tests that the courts have developed for these two sections. It is logical that a witness who wishes to testify within the court’s precincts and under the court’s supervision would have to meet a lower test than a witness who wishes to provide uncontrolled audio or video testimony. The lower test for granting accommodations to witnesses testifying in the court’s precincts also fits with the need for the court to protect vulnerable witnesses when they are testifying.

[36] Finally, the limited case-law on the topic of which section applies supports the conclusion that there is a difference between the two sections. For example, in R. v. N.M., 2019 NSCA 4, at para. 69, the Court states:

Clearly, the two Code provisions incorporate different tests, with different legislated factors a trial judge should consider, if relevant. To permit a witness to testify via video link or by another form of technology, s. 714.1 mandates a trial judge to consider whether such would be “appropriate in all the circumstances.” This is much different than the test in s. 486.2(2) requiring a trial judge to consider whether testifying via CCTV “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.”

[37] In other words, the focus of the inquiry under section 486.2 is the witness, while the focus of the inquiry under section 714.1 is “all the circumstances”. The difference in focus will, of necessity, produce different tests. See also R. v. S.L.C., 2020 ABQB 515, at paras. 120 to 123.

[38] For these reasons, I conclude that the test under section 714.1 and not section 486.2 applies in this case.

Issue #2- Should the Complainant be Permitted to Testify from Home?

[39] In S.D.L., supra, the Nova Scotia Court of Appeal set out some guidance on how the court should exercise its discretion under section 714.1. At paragraph 32, the Court stated:

With this background, I would propose the following guiding principles for Nova Scotia trial judges, when considering s. 714.1 applications:

1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice.

2. That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice.

3. When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.

4. The more significant or complex the proposed video link evidence, the more guarded the court should be.

5. When credibility will not be an issue, the test should be on a balance of convenience.

6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross examination be required, that could be done by video link.

7. When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited.

8. Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify “in a courtroom…or at the offices of Victims’ Services…”. To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.

[40] From these principles, the key point that I have to consider in exercising my discretion is credibility. In this case, the ultimate issue for the jury to determine will be whether the complainant’s evidence should be accepted beyond a reasonable doubt. This will require focused consideration of the complainant’s credibility, and the accused’s credibility if he chooses to testify. As a result, the complainant should only be permitted to testify if exceptional circumstances are present.

[41] In this respect, I note the points made in R. v. K.S., 2020 ONCJ 328, at paras. 53 to 55:

The Court’s interest in trial fairness has roots in the search for truth. The public’s interest in trial fairness includes a notion of accountability, in my view. In the context of the current motion, accountability would include one person’s accountability to another, witness to accused.

Accountability of one person to another is supported by features of the criminal justice process, including face-to-face interaction that has up until now largely taken place directly and in person. In addition, the physical and interpersonal context of the courtroom serves as a concrete cue and reminder of its importance and the gravity of any violations. As I hinted above, the solemnity of the court and its role to play in accountability and fairness cannot be reproduced in someone’s living room.

In contrast to the courtroom, interactions in virtual spaces, even when they are in real-time, remove people from one another and disconnect them from the court setting. In my view, this risks a diminution or dilution of the subjective sense of accountability that supports people’s commitment to truth telling and we have no idea what impact it might have on the accuracy of recall, reliability, carefulness and therefore of testimony credibility.

[42] R. v. K.Z., 2021 ONCJ 321 adopts a different approach. In that case, the applications judge rejected the reasoning of the Nova Scotia Court of Appeal, stating (at para. 11):

While I am not bound to follow SDL, I’ve carefully considered that decision. With all due respect, I find I must decline to apply the SDL test for the following reasons:

• The SDL decision considered a prior version of s 714.1 that set out minimal criteria for the order.
• In the subsequent amendments, Parliament expanded the relevant considerations but did not adopt a special, discrete test for witness credibility cases.
• Criminal trial courts have decades of experience in assessing the credibility of complainants and other witnesses who testify by way of video technology. Courts have gained further experience during the COVID pandemic. No special test is required beyond the statutory criteria.
• During the pandemic in a province where lockdown stay-at-home orders are in place and courtrooms have added restrictions for public health and safety, the use of videoconference technology can provide a better opportunity to assess credibility than in-person testimony.
• Videoconference technology shows and records both the demeanour and the responses of a witness. When evaluating concerns about the ability to fully assess demeanour, it’s important to remember the limited role demeanour plays in assessing witness credibility.
• In my view, courts should decline to add a special, highly restrictive test that will often be applied in matters of alleged sexual assault such as SDL and this case, that would limit access to videoconference technology where an application otherwise meets the statutory criteria.

[43] K.Z. was decided at the height of the pandemic and involved a complainant who was six months pregnant and having a difficult pregnancy. As a result, “all of the circumstances” of the case were very different in K.Z. than they are in the case before me.

[44] In addition, however, there are two problems with the reasoning in K.Z. First, the applications judge in that decision stated that S.D.L. was decided when there were minimal criteria under section 714.1. I acknowledge that there were additional criteria added to 714.1 by way of legislative amendment in 2019. However, I am not persuaded that these amendments changed the importance of credibility as set out in S.D.L. for two reasons:

a) One of the criteria that was added was a specific acknowledgement that “the accused’s right to a fair and public hearing” was one of the circumstances. Where credibility is central to assessing the case against the accused, the right to a fair and public hearing generally favours in-person testimony in the way described in S.D.L. absent cogent reasons to the contrary. b) The preamble to section 714.1 remains the same, in that it requires the court to consider all of the circumstances, including (but not limited to) the listed criteria.

[45] There is also a difference between providing remote but controlled testimony and remote uncontrolled testimony. I agree with the applications judge in K.Z. that the technology is such that we can assess the demeanour of witnesses more easily. However, the K.Z. decision does not address the concerns about the testimony being provided in an uncontrolled location. I will return to this concern below.

[46] With this background in mind, I now turn to the specific criteria set out in section 714.1. The only factor that supports the Crown’s request for virtual testimony in this case is the location and personal circumstances of the complainant. Those areas were the subject of significant cross-examination.

[47] I start with the complainant’s medical condition. I have reproduced the medical notes at paragraph 14 above. The most significant issue raised by those notes is the stress that the complainant might suffer from being in the same courtroom as the accused.

[48] In assessing this claim, I must also consider the other testimony that I heard from the complainant:

a) The complainant and the accused were involved in family law litigation pre-COVID. During that litigation, they had approximately ten (10) court appearances. On some of those appearances, they would have met (with counsel) in one of the small meeting rooms adjacent to the courtroom. All of these attendances were without incident. b) The complainant and the accused attended at their son’s graduation in 2019, as well as attending at other sporting events for their children. All of these attendances were without incident. c) One of the children was admitted to the hospital with an asthma attack sometime in 2019. The accused and the complainant were both there. The complainant did not bring a support person with her, but did bring her baby with her.

[49] In addition, the complainant testified that her conditions had flared up over the last year, or the last three months. The complainant testified that she had only discovered that she would be testifying in this trial in the past month and acknowledged that there were other stressors in her life that were affecting her. As a result, I infer that these other stressors in her life have contributed to the complainant’s condition.

[50] While I am generally mindful of the sensitivities required in these applications, I have concerns in this case as a result of the evidence that, if the complainant has a fear of being in the same courtroom as the accused, there is some evidence to suggest that this fear has developed rather recently given the previous family law proceedings.

[51] I am also of the view that this fear can be managed through the court processes, especially with the presence of court staff and police in the building. Indeed, these fears could have been managed by bringing an application under section 486.2 for remote testimony from the Renfrew County Courthouse. Therefore, I am of the view that requiring in-person testimony will not prevent the complainant from providing full and candid evidence.

[52] On this point, I should also mention the testimony of the victim services worker. She provided an affidavit that stated, inter alia, that “Ms. [B] moved away [from Peel Region] to specifically get away from the accused.” In her evidence before me, the complainant testified that she had moved away from the area because she also had problems with affordability. The complainant also acknowledged that she did not move away from the Peel/Halton area until the fall of 2022 and had not had any contact with the accused since the spring of 2020. In my view, the concerns in the victim services worker’s affidavit on this point do not reflect the totality of the evidence that I heard in court.

[53] Crown counsel argued that, if I were to rely on the evidence that the complainant was prepared to come to court to deal with her family law case as evidence that she could testify in this case, I would be triggering the twin myths from R. v. Seaboyer, [1991] 2 S.C.R. 577 and engaging in prohibited reasoning. I reject this argument. The evidence of the complainant’s attendance at court in the presence of the accused on previous occasions is very far afield from prohibited reasoning that would flow from the twin myths.

[54] This brings me to the complainant’s other personal circumstances. The drive from Renfrew County is admittedly a long one. However, this is not a case in which requiring the complainant to attend will involve flights or other cross-country or international travel. This fact favours permitting remote testimony but is not a significant factor.

[55] The complainant also testified that she would have difficulty in finding someone to watch her children and that she would be required to bring them to Peel Region while she testified. She also testified that she did not have anyone in Peel Region that she could leave the children with. This issue does pose some difficulties for the complainant. However, the eldest child who lives with her will be eighteen at some point in the next few months and is in Grade 12. In addition, the complainant’s testimony is not expected to be more than a day or two at most. Again, this is a factor that might favour remote testimony from an uncontrolled environment, but it is not a significant factor. It would be a more significant factor if I was considering an application for remote testimony from the Renfrew County Courthouse.

[56] There are a number of factors that favour in-person testimony in this case. Chief amongst them is the fact that this case squarely raises issues of credibility. As noted in the K.S. decision, these issues are best resolved in-person. As noted by the Nova Scotia Court of Appeal in S.D.L., where credibility is a factor, applications to testify virtually from outside the courthouse are only granted in exceptional circumstances.

[57] I next turn to the suitability of the location where the witness will give testimony. Throughout these reasons I have referred to the complainant as giving testimony “uncontrolled”. What I mean by that is that the complainant will be in an environment where the court will not know who else is in the room with her. The court will also not be able to confirm what documents (if any) she has in front of her, either electronically or in paper format. Given that credibility is central to the issues in this case and that the accused’s innocence is at stake, ensuring that the complainant’s testimony is offered in a controlled environment is an important consideration. It is one of the safeguards necessary to ensure the accused receives a fair trial. Indeed, it is specifically recognized as such by paragraph 714.1 (g) of the Criminal Code.

[58] On this point, I would add that this is not intended to be an observation that witnesses testifying remotely are going to be intentionally doing anything wrong. However, witnesses (even expert witnesses) may, from time to time, have documents with them in the witness box while they are giving their testimony. Most judges have had the experience of having to ask a witness what they are looking at while they are testifying or direct counsel’s attention to the fact that the witness is reading something while answering questions. This control does not exist when the document is on the same screen that the witness is using to testify and the witness is testifying remotely in an uncontrolled setting.

[59] When I step back and consider the picture as a whole, I am not persuaded that I should exercise my discretion to permit the complainant to testify remotely and in an uncontrolled setting. The complainant’s personal circumstances are substantially outweighed by the accused’s fair trial rights.

[60] In addressing this issue, I acknowledge that “testifying in a sexual assault case can be traumatizing and harmful to complainants”: R. v. R.V., 2019 SCC 4, [2019] 3 S.C.R. 237, at para. 33. The courts have an obligation to ensure that complainants in sexual assault cases are supported in providing their testimony.

[61] However, in this case, the Crown is not seeking testimonial aids and is not seeking to have the complainant provide remote testimony from the Renfrew County Courthouse. The Crown is only seeking an order permitting the complainant to testify from her home in an uncontrolled environment. An application for some other form of testimonial aid might very well have resulted in a different outcome, as can be seen from the analysis I have set out. Indeed, defence counsel acknowledged as much during her submissions. However, the Crown did not seek such an order.

Conclusion

[62] For the foregoing reasons, I determined that the complainant should be required to attend in Brampton and provide her testimony in person.

LEMAY J.

Released: March 22, 2023