COURT FILE NO.: CRIMJ(P) 1364/21
DATE: 2023 01 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
S. Scully, for the Plaintiff
Plaintiff
- and -
MOHAMED ALNABULSI
R. Gupta, for the Defence
Defendant
HEARD: December 7 and 14, 2022
CORRECTED REASONS FOR DECISION
(Typographical corrections made to paras. 25, 32, and 35)
Emery J.
[1] The accused Mohamed Alnabulsi is charged with two counts of assault under section 266, and 10 counts of assault with a weapon under s. 267(a) of the Criminal Code. Several of those charges involve allegations of conduct taken against members of his family.
[2] Mr. Alnabulsi and his former spouse, Nancy Elbenhawy, are the parents of five children. It has been arranged that the children, all of whom are between 3 and 17 years of age, will testify remotely. This arrangement has been made under s. 486.1(2) of the Criminal Code as they are minors under 18 years of age.
[3] Counts 11 and 12 of the indictment concern charges of assault with a weapon against Ms. Elbenhawy. She is also witness to a number of other alleged assaults which involve the children.
[4] The trial of Mr. Alnabulsi on all twelve counts before judge and jury is scheduled to start on February 27, 2023. The Crown brings this application in advance of the trial under section 714.1 for an order permitting Ms. Elbenhawy to testify remotely. The Crown seeks an Order that Ms. Elbenhawy testify over Zoom from Edmonton, where she and four of the five children are believed to reside.
Statutory framework
[5] Section 714.1 reads as follows:
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.
[6] The discretion given to a judge on this application may be exercised where the judge has an evidentiary basis to consider to all the circumstances relied upon for the application. This requires the judge to consider evidence of those circumstances that are relevant to determine whether it would be appropriate to make an order, as well as a balancing of how an order might impact on the rights of the accused to a fair trial.
Record filed on the application
[7] In support of the application, the Crown filed the affidavit of Constable Jim Tytler of the Peel Regional Police. Constable Tytler is the officer in charge of the investigation.
[8] No affidavit was filed from Ms. Elbenhawy herself. Nor did she give evidence in any way on the application.
[9] Constable Tytler’s evidence shows that the charges arose from a call received by Peel Regional Police on or about February 14, 2021. There were a number of complainants who spoke to a number of detectives after the call was received. Constable Tytler states that Ms. Elbenhawy was interviewed by P.C. Dodds on February 15, 2021. He does not explain how he obtained the information she had to give to put into his affidavit, except to say that Ms. Elbenhawy described various aspects of Mr. Alnabulsi’s conduct in a recorded video interview.
[10] In fact, Constable Tytler did not speak to any of the complainants but was briefed by the detectives who did.
[11] In his affidavit, Constable Tytler describes the personal circumstances of Ms. Elbenhawy in relation to the application. In paragraph 4, he sets out the names and ages of the children who now live with her in Edmonton. Some of these ages are outdated, or incorrect.
[12] In paragraph 5, Constable Tytler advises that Ms. Elbenhawy would require flights, accommodations and meals if she were required to attend court in Brampton. He goes on to state that five children would not have the support of their mother when they testify remotely if they were there and she was here. However, he agreed in cross-examination that he had no knowledge of the family dynamics.
[13] Constable Tytler states in paragraph 6 that the children will “necessarily” require the care and supervision of an adult during the day and overnight if Ms. Elbenhawy is required to attend court in Ontario. Even though Ms. Elbenhawy has advised the police that she has family in Edmonton, Constable Tytler states there is “no guarantee” she will be able to find overnight childcare. This statement was made without any evidence to support it.
[14] Constable Tytler states in paragraph 7 that “for logistical reasons” Ms. Elbenhawy would have to fly the children to Ontario with her as it would be “extremely difficult” for them to be left on their own in Edmonton. He also speculates that they would miss out on school for the duration of the trial. His evidence is speculative for the same reasons given about his evidence concerning child care.
Testimony at the hearing
[15] When giving further evidence in court, Constable Tytler described how and when he came to speak with Ms. Elbenhawy after she gave her initial statement. He spoke to her once by video-conference in May 2022 when the Crown was discussing the variation of Mr. Alnabulsi’s bail conditions with her. At that time, she was interested in a variation of those terms to allow him to be more involved in the childrens’ lives. Constable Tytler concluded from that interview that Ms. Elbenhawy has the technical ability to access the internet and that she has a private place from which to participate in a video-call.
[16] In cross-examination, Constable Tytler stated that he only spoke to Ms. Elbehawy once about the prospect of testifying remotely. That conversation took place during the video-conference with the Crown in May 2022. He testified that Ms. Elbenhawy had asked if she would have to return to Ontario to testify. He testified that Ms. Elbenhawy stated, or lead him and the Crown to believe there would be logistical issues if she was required to testify in person. He stated that Ms. Elbenhawy advised those at the meeting that she preferred that she not be asked to testify in person.
[17] Constable Tytler agreed in cross-examination that the assertions put forward in paragraph 6 and 7 of his affidavit regarding the childrens’ care if Ms. Elbenhawy were required to attend court in person did not come from her, but where based on his own assumptions.
[18] In regard to his statement in paragraph 9 of his affidavit that Ms. Elbenhawy requests an order permitting her to testify remotely at trial, Constable Tytler agreed that he does not know her current position.
[19] Constable Tytler stated that at the time of the video-conference with Ms. Elbenhawy, it was quite normal for witnesses to testify by Zoom because of the prevailing pandemic. However, he told the court that no promises have been made to Ms. Elbenhawy that the trial would proceed remotely.
[20] Constable Tytler last spoke to Ms. Elbenhawy over the telephone on November 24, 2022. He contacted her at her place of employment in Edmonton after he had sent out a summons for the Edmonton Police to serve on her to appear at trial. He reached out to her at work because she had moved and had not kept him informed of her change of address. Constable Tytler told the court that Ms. Elnenhawy had put him “on hold” when he called her at work, and had never returned to speak with him. He finally had the Edmonton Police effect service of the summons on Ms. Elbenhawy at her place of work on December 6, 2022.
Analysis
[21] An order under s. 714.1 is discretionary in nature. Parliament has provided the court with the power to make an order for a witness to give evidence remotely. The discretionary nature of the order is evident from the language used in the section, when in the opinion of the court an order should be made where it would be “appropriate” having regard to “all the circumstances”. These circumstances include those factors that are set out. See R. v. S.D.L., 2017 NSCA 58 (at para. 8), R. v. K.S., ONCJ 328 (at para. 10) and R. v. Chow, N.S.J. 464 (at para. 12).
[22] The authorities have generally held that location and inconvenience caused by a witness having to travel to attend court will usually be insufficient to justify an order permitting the witness to testify remotely. However, the personal circumstances of the witness can be a significant factor. See R. v. Lucas-Johnson, 2018 ONSC 2370.
[23] Similarly, costs of transportation and lodging alone have been held to be insufficient reasons to warrant an order allowing the witness to testify remotely under s. 714.1. However, a court may give this factor more weight if the evidence the witness is being called to give is not controversial: R. v. Metcalfe, 2018 ONSC 4925, at para. 14.
[24] The cases have considered the use of remote testimony where the credibility of the witness will be an issue. That said, there have been cases where complainants have been permitted to testify virtually. This concern was discussed in R. v. S.D.L.(at para. 32), and R. v. Metcalfe (at para. 12).
[25] The Crown makes the submission that the right of the accused to a fair hearing is not offended by testimony given over audio-visual means. This observation is made in cases such as R. v. S.D.L., and R. v. Lucas-Johnson.
[26] The Crown further submits that the seriousness of the charges is no bar to obtaining an order permitting remote testimony. It is just one factor for the court to consider. In R. v. Belem, 2017 ONSC 2213, Justice Sheard permitted a complainant to testify remotely in a jury trial where the charge related to a violent home invasion. In R. v. Husbands, 2018 ONSC 6831, the accused was charged with two counts of second degree murder and five counts of aggravated assault to be tried by judge and jury. Although the court found the anticipated evidence of the witness would be “potentially very significant and contentious,” the witness was permitted to tesify by virtual means (at para. 18).
Rights of the accused
[27] It should come as no surprise that the Criminal Code contains this provision to allow a witness to give evidence remotely in view of the advances in technology. There is a trend to interpret procedural and evidentiary rules so that evidence can be given in a manner most favourable to bringing out the truth, provided they do not impact the right of the accused to a full defence and a fair trial: R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, at para. 22.
[28] The defence relies on several authorities to ask that the court dismiss the application because of the absence of evidence to show the circumstances of Ms. Elbenhawy. The defence submits that the lack of an evidentiary basis to make an order under s. 714.1 warrants the dismissal of the application. See R. v. S.D.L., and more recently R. v. Brar, 2021 ONSC 8042.
[29] The default position in the adversarial process of the criminal justice system usually calls for witnesses to testify in person unless there is a good reason under s. 714.1 to permit testimony by video: R. v. K.S., and R. v. Chow.
[30] The fact finding function of the court must also be kept in mind along with the fairness of the trial process. The quest for seeking the truth at a trial emphasizes the primacy of having the witness testify in person. As Justice Renwick wrote in R. v. Adu-Agyei, 2021 O.J. No. 1235, at para. 9:
9 In R. v. Burden, [2017] O.J. No. 940 (O.C.J.), Mr. Justice Wakefield of this Court dismissed a similar application. Justice Wakefield was referred to R. v. Turner, [2002] B.C.J. No. 2576 (B.C.S.C.), which concerned a similar motion under s. 714.2 of the Criminal Code to permit the virtual appearance of a witness in the United States. Justice Wakefield also considered R. v. D.P., [2013] O.J. No. 2232 (S.C.J.), a decision of Mr. Justice Ellies, who also dismissed a similar pre-trial application. Justice Ellies was primarily concerned with the truth-seeking function of the court and the limitations imposed by the use of this technology:
But the accused, the Crown and the witness are not the only participants in the trial process. The ability of the court to fulfil its truth-finding function is also important. Unlike the situation at the preliminary inquiry, credibility will be a major issue at the trial. While demeanour, by itself, is an unreliable way to determine credibility, it is nonetheless one facet of the way in which the court in a case like this must do so. In my view, when it comes to demeanour, there is no substitute for being near the witness as she testifies. It is no accident that witness boxes are placed next to or near the judge and jury in almost every courtroom across the country.
[31] Where the trial will require a serious issue of credibility on the part of the witness or as between the witness and the accused or another witness, there is a judicial reluctance to allow testimony by video conference. In that context, exceptional circumstances must be shown to make the remote testimony requested even more compelling: R. v. S.D.L. and R. v. Chow.
[32] Even where the order permitting a witness to tesify remotely might be appropriate given all the prevailing circumstances, the applicant should provide evidence of the facilities where the witness would attend to testify by video, the technology available to transmit and receive the questions to be asked by counsel, the evidence to be given by the witness and the directions to be given by the court. The evidence should also provide any safeguards the Crown proposes to guard against outside interference or influence on the witness’ testimony: R. v. Burden, at para. 14; and R. v. Mowick, at para. 11 and 16. This due diligence should also include evidence about taking steps to assure the quality of the video conference and patrol against any breakdown or interference that would disrupt the flow of the evidence. Failure to do so could compromise the defendants right and ability to make full answer and defence, possibly leading to a miscarriage of justice: R. v. S.D.L., at paras. 32, 64 and 69.
[33] On such applications, the court should not speculate about the circumstances on which the s. 714.1 application is brought: R. v. Chow, at para. 42; and R. v. Adu-Agyei, at para. 13.
[34] Above all, the right of the accused to a fair trial must be balanced against the circumstances the applicant or the Crown relies upon to ask the court for an order allowing the witness to testify from outside of court. These values were succinctly juxstaposed by Weagant J. in R. v. K.S., 2020 ONCJ 328 at paras. 52 to 55 as follows:
[52] A fair trial encompasses much more than the Defendant’s rights and expectations. To the extent that a right to a fair trial is embraced by the principles of fundamental justice, the concept of fairness must also reflect a diversity of interests, including the rights of an accused, as well as the interests of Society:
While the objective of the judicial process is the attainment of truth, as this Court has reiterated in L. (D.O.), 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. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per Madam Justice L’Heureux Dube at paragraphs 19 and 20)
[53] 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.
[54] 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.
[55] 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.
[35] The means by which a court can determine whether it would be “appropriate” to make an order under s. 714.1 requires an assessment of available evidence with respect to “all the circumstances”. Where there is an absence or an inadequacy of evidence to provide the court with the circumstances on which to make that determination, the application for permission allowing a witness to give remote testimony at a trial will likely fail.
The evidence on this application
[36] There is no evidence from Ms. Elbenhawy about her personal circumstances, or any prejudice or inconvenience to herself or the children should she be required by the Crown to attend court in person for trial. In view of this absence of cogent evidence, a court may be reluctant to draw inferences of prejudice or inconvenience to justify an order permitting the witness to testify remotely: R.v. Burden, 2017 O.J. No. 940, at para. 8.
[37] The evidence given by Constable Tytler, by affidavit and at the hearing, did not include any costing or estimate of travel or lodging expense. Evidence of this nature would have been helpful for the court to balance the value Ms. Elbenhawy‘s evidence at trial against the cost of bringing Ms. Elbenhawy to Ontario to tesify in person. See R. v. Mowick, ONCJ 492, a para. 18. However, the expense of transportation and lodging would not in themselves have been sufficient to warrant the order: R. v. Metcalfe, supra.
[38] The Crown put forward no costing or estimates for the expenses Ms. Elbenhawy would incur for travel, accommodation or meals to attend trial in Brampton. This evidence was given in relation to paragraph 5 of Constable Tytler’s affidavit where he stated she would incur those expenses, without giving details. There were no logistical details that may have been discussed with her in May 2022, or any evidence to support the claims that the children would “necessarily” require childcare while she travelled to Ontario to give evidence at trial.
[39] There is also no evidence from Ms. Elbenhawy about the inconvenience or disruption to the children’s schooling that her absence might cause while in Ontario to attend court in person, or about any other impact on her family circumstances: R. v. Chow. Constable Tytler admitted in his evidence-in-chief that he cannot recall any discussion about child care. He had heard that Ms. Elbenhawy had family in Edmonton, but did not inquire into details of what family would be available to care for the children if she was away.
[40] Constable Tytler testified that he was only part of the meeting that the Crown’s office held with Ms. Elbebhawy in May 2022. He did not attend any other meeting, including a telephone meeting with Ms. Ebenhawy in August 2022 for trial preparation.
[41] When participating at the meeting in May 2022, Constable Tytler did not take notes. He testified he was relying on emails setting up that meeting for the topics to discuss with Ms. Elbenhawy. These notes indicate the bail variation as the main topic to discuss, not whether to obtain an order for her to testify remotely.
[42] In summary, the Crown has not put forward any evidence that either displaces Mr. Alnabulsi’s prima facie right to have Ms. Elbenhawy testify in person. He asserts his right to face his accuser, and submits that his right to make full answer and defence by having Ms. Elbenhawy testify in front of him would be compromised if an order was made otherwise.
[43] Even if the prospect of having Ms. Elbenhawy testify remotely did not compromise Mr. Alnabulsi’s right to face a key witness in person, the evidence given in support of the application is based on limited information from Constable Tytler. He has drawn assumptions from that limited information with respect to the circumstances on which the court might assess the appropriateness of the requested order. The absence of a proper evidentiary foundation on which to assess relevant circumstances for this application amounts to insufficient evidence to make the order requested. The finding of insufficient evidence on this application is as central to its disposition as the hearsay evidence in R. v. Brar.
[44] There are no compelling circumstances given in Constable Tytler’s evidence for the court to find that it would be appropriate to permit Nancy Elbenhawy to testify remotely at trial.
[45] The Crown’s application under s. 714.1 is therefore dismissed.
Emery J.
Released: January 19, 2023
COURT FILE NO.: CRIMJ(P) 1364/21
DATE: 2023 01 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Plaintiff
- and -
MOHAMED ALNABULSI
Respondent
CORRECTED REASONS FOR DECISION
Emery J.
Released: January 19, 2023