Court File and Parties

Court File No.: CR-22-0001 Date: 2023-01-06 Superior Court of Justice - Ontario

Re: R. v. Robert Aitken

Before: Justice M.D. McArthur

Counsel: C. Yih, Counsel for the Crown, Applicant R. Farrington, Counsel for the Accused, Respondent

Heard: January 3, 2023

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, C.H., be permitted to testify at trial by way of closed-circuit television (“CCTV”).

[2] The accused opposes this application on the basis that the Crown has not met the evidential threshold in the circumstances.

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 complainants 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] Mr. Aitken is charged with one count of each of sexual assault and sexual interference upon the complainant.

[6] The allegation involves two occasions about a year apart when C.H. was asleep under a blanket on the couch at the accused’s residence. C.H. was babysitting the accused’s two younger children on both occasions. C.H alleges she awoke on both occasions to the accused standing over her touching her on her vaginal area and otherwise over the blanket.

[7] The matter will proceed to trial before a jury commencing February 6, 2023.

[8] C.H. did not testify on this application. The affidavit of an investigating officer along with the transcripts of the video interviews of C.H. taken on October 3, 2020 and December 10, 2021 were filed.

[9] C.H. was somewhere between 11 and 16 years of age at the time of the alleged offences. She is now age 25 years. She is under no mental or physical disabilities but indicated she struggles with anxiety. In her interviews she is responsive, able to answer questions appropriately, provides details, and is focussed.

[10] C.H. knows the accused through the accused’s spouse who is like an aunt to the complainant and with whom she has enjoyed a good relationship. The complainant’s mother and the accused’s wife are friends. It appears on the limited record before the court that the accused and his wife may be or are separated.

[11] C.H. is emotional and cries at the outset of her first police interview. She also described being emotionally distraught when fortuitously meeting the accused at a local food show event that she attended with her boyfriend some months before the interview.

[12] C.H.’s second police interview is focussed on her testifying at court. C.H. indicates that she feels safe and would be supported at court. She states if she was in the same room with the accused, her emotions would be so high that she would not be able to get out what she needed to say or would need a break.

[13] C.H. states that she thinks she could give a full and candid account of what happened if she testified in the same room as the accused. She explained “it would just hurt”. She soon after expresses, while crying and emotional, that she did not know if she could testify all at once. C.H. also states she struggles with a lot of things that increase her anxiety to the point of her shutting down and not wanting to get out of bed.

[14] C.H. has previously related her allegations to her mother and to the wife of the accused.

[15] Mr. Aitken did not file evidence on the application.

[16] 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

[17] The general rule is that witnesses are required to testify in open court.

[18] CCTV has been extended from children and persons with developmental disabilities to vulnerable adult victims and witnesses. In R. v. Levogiannis, [1993] S.C.J. No. 70, the use of testimonial aids was recognized in judge-alone trials of a child victim where 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] Prior to the amendments to the Criminal Code in 2015, the court could make such an order only where it was necessary to obtain a full and candid account of the acts complained of. Now, an order may be made where it would facilitate the giving of a full and candid account of the acts complained of or is otherwise 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. C.H. will be asked questions of a sensitive nature to her relating two incidents alleging of touching her by the accused over a blanket while in the home that she was babysitting in.

[24] C.H.’s safety concerns have been addressed and she feels she will be supported in court.

[25] C.H. does express personal concern of shutting down and needing a break when testifying with the accused in the same room. The implication is that the physical presence of the accused will likely increase her anxiety while testifying.

[26] This court has considered the enumerated statutory factors of 486.2(3), specifically that C.H. is a now twenty five-year old female with genuine heightened anxiety who does not have experience with the court process. The alleged offence is of two incidents of assaults of a sexual nature upon her as a young teenaged person in the home of other persons, one of whom is regarded as an aunt by her to whom she has disclosed the allegation. If C.H. was less than 18 years, the legislative provision would be mandatory as to the use of CCTV.

[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 case is another example where the investigative and prosecutorial authorities have acted responsibly and sensitively. They together had advised the complainant throughout and sought the complainant’s input to encourage her full and candid participation in the process and have made the complainant aware of possibilities and alternatives to aid her in testifying before the court. This court is mindful in this case that some questions put to C.H. may be leading and suggestive. Such an approach can obscure matters and impair a proper determination of the court.

[28] Most persons who come before the courts have apprehensions and concerns about their participation in a public court process. Such concerns will naturally be elevated with witnesses generally as well those who have been victimized sexually. Anxiety and its’ range of effects are recognized realities and should not be generalized for witnesses. These subjective effects must be found in evidence to be considered.

[29] Here, the concerns of the complainant shutting down are amplified by her heightened anxiety condition. This court finds that C.H.’s high level of anxiety, combined with other features including her corresponding emotional state, is an impediment that likely will adversely influence the ability of C.H. to be forthcoming and straightforward in her account of the allegations in this case.

[30] This court acknowledges there was no medical or other evidence tendered that spoke to emotional depth or other effects on the complainant. As this court has recognized in other cases, medical evidence is one type of evidence that may assist the court in considering the nature of the offence and other enumerated factors. The court must nevertheless remain focussed on the evidence going to the ability of the witness to provide a full and candid account of the acts complained of.

[31] This is a marginal case. It 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 and intrusively sexually assaulted by three accused persons over a few hours. Justice Gorman 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.”

[32] In this case, C.H. is aware of and articulated her heightened anxiety and that she may shut down knowing the accused is present in court. C.H. has also her expressed her ability to testify if provided breaks. Here, the heightened anxiety of C.H. in the context of the other features as mentioned, will likely be an impediment and adversely influence the ability of C.H. to be forthcoming and straightforward in her account of the allegations in this case.

[33] 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 been met in this case by a narrow margin.

Disposition

[34] The Crown has satisfied the court that the use of CCTV by C.H. will more likely facilitate C. H.’s providing a full and candid account of the acts complained of based on the evidence presented.

[35] The application is granted.

Justice M.D. McArthur Date: January 6, 2023