COURT FILE NO.: CR-22-119 DATE: 2023 08 10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – Q.T.D.
Counsel: A. Khoorshed, for the Crown S. Reid, for the Accused
HEARD: July 6, 2023
PUBLICATION RESTRICTION NOTICE Publication of Any Information Tending to Reveal the Identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada
Reasons for Judgment
Reasons for Decision on CCTV Application
CHOZIK J.
Introduction
[1] The accused Q.T.D. is charged with two counts of sexual assault, two counts of forcible confinement, one count of criminal harassment and one count of failing to comply with a court order (a peace bond) made under s.181 of the Criminal Code, R.S.C. 1985, c. C-46. Other than the breach of the peace bond, the alleged offences are in respect of the complainant, A.I.
[2] The complainant alleges that on two occasions in the fall of 2021 the accused sexually assaulted her by forcing vaginal intercourse and other sexual touching upon her. The first time, he allegedly had intercourse with her at his home when she had come over to watch a movie. The second time, the accused allegedly confined her to the basement of his home and sexually assaulted her there. During the incidents he allegedly intimidated her.
[3] According to the complainant, on both occasions she told him “No.” She alleged that during their brief acquaintance, he expressed sexual interest in her, but she told him repeatedly that she did not want a sexual relationship with him. She told the police that she was “scared” during the incidents.
[4] Between the two sexual assaults, it is alleged that the accused repeatedly texted and phoned the complainant despite knowing or reasonably expecting that it would cause her to fear for her well-being.
[5] On a third occasion, it is alleged that the accused forcibly confined the complainant in a public place. She met him in public, and when she was not persuaded to come with him to his home, he tried to carry her or physically move her. She got help from a bystander. She then told her father about the alleged sexual assaults, and eventually came to give a statement to the police.
[6] The trial in the Superior Court of Justice at Milton, with a jury, is scheduled to commence on September 11, 2023. I am not the trial judge.
The Application
[7] The Crown applies for an order to permit the complainant to testify at trial remotely, via closed-circuit television (“CCTV”), with an audio and video feed from a nearby room inside the courthouse. That request is made under section 486.2(2) of the Criminal Code , on the basis that such an 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 interests of justice”.
[8] In its factum, the Crown (not Mr. Khoorshed) argued that the order should issue under section 486.2(1), which makes it mandatory for a person under the age of 18 years or a witness who can communicate their evidence but would have difficulty doing so by reason of a mental disability. In its oral submissions, the Crown did not pursue this argument but instead focused on its alternative argument that the order should be granted under s.486.2(2).
[9] I would not have granted the order under s.486.2(1). In my view, the Crown did not discharge its burden to show that the complainant would have difficulty communicating her evidence by reason of a mental disability: R. v. J.D., 2022 ONSC 2540, O.J. No. 1952 at paras. 15 and 19. I will therefore only deal with whether the order should issue under s.486.2(2).
[10] Under s.486.2(2), the Crown must satisfy the Court on a balance of probabilities that the order for the testimonial aid, either CCTV or a screen, would “facilitate the giving” of a full and candid account of the acts complained of, or would otherwise be in the interests of justice. Both counsel focused exclusively on the first part of the test.
[11] The factors this Court must consider are set out in section 486.2(3) and include:
(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.
[12] The Crown also sought an order under section 486.1, which the defence consented to, for a support person to be present and close to the complainant while she testified at trial. I made the order, therefore allowing the complainant to have a support person present when she testifies.
Evidence on the Application
[13] The Crown called one witness on the application, Julie Chevalier of the Victim Witness Assistance Program (“VWAP”) in Halton Region. The Crown relied on her sworn affidavit dated March 31, 2023, as well as her viva voce evidence. Ms. Chevalier was cross-examined by defence counsel.
[14] In her affidavit, Ms. Chevalier states that the complainant told her in October 2022 that she wanted to testify from outside the courtroom. At that time, the complainant told her that “she was suffering from mental health issues” and that she was very anxious about seeing the accused if she were to testify.
[15] Ms. Chevalier further states in her affidavit that she spoke with the complainant on March 30, 2023 for the purpose of preparing an affidavit in support of this motion, and the complainant advised her that:
- She was requesting use of out of court testimony via CCTV and to have a support person during her testimony;
- She was diagnosed with PTSD (which I take to mean post traumatic stress disorder) and takes medication as a result;
- Her main PTSD symptoms are that when she is in a situation that provokes anxiety she will:
- Disassociate or freeze up;
- Have trouble breathing;
- Feel shaky;
- Have trouble formulating her thoughts into words because she can’t find the correct words;
- “Zone out” when very stressed including being unable to speak;
- She feels she will be fearful of the accused and intimidated by him if she has to see him in the courtroom;
- She believes that if she had to testify from a courtroom, her anxiety will be high and she will experience the PTSD symptoms described above.
[16] Ms. Chevalier opined in her affidavit that it would not be enough to provide a screen for the complainant as it would not adequately address her fears.
[17] Ms. Chevalier states in her affidavit that the complainant thought that a support worker in the room with her while she testified would help her stay focused and keep her from “zoning out”.
[18] When cross-examined, Ms. Chevalier confirmed that the complainant told her that she suffers from PTSD and that she takes medication for it. She testified that she has the impression it was a medical diagnosis. She thinks she would have asked the complainant about this but has no notes from which she can refresh her memory and no independent recollection. She testified that her practice is to take notes, but once her notebook is full, to destroy those notes. She acknowledged that she has in the past requested a letter from a doctor on behalf of the Crown to confirm the diagnosis but did not do so in this case.
[19] Ms. Chevalier testified that she spoke to the complainant by telephone maybe half a dozen times since this matter first came into the court system. From the outset, the complainant said she was afraid of the accused. Ms. Chevalier offered the CCTV as an option; the complainant did not request it of her own initiative. The last time Ms. Chevalier spoke to the complainant was on March 30, 2023 – the day before this application was scheduled to proceed but was adjourned. She spoke with the complainant for the purpose of preparing her affidavit in support of the CCTV application. She did not discuss the use of a screen with the complainant. She has not spoken to the complainant since March 30, 2023.
[20] In her statement to the police, a transcript of which forms part of the Crown’s application record, the complainant stated that she suffered from anxiety and took medication for it. She also told police that she was scared of the accused during her acquaintance with him.
Analysis
[21] Applying the required factors, I find that none of them weigh particularly in favour of granting the order for CCTV. I also find that the information relied on by the Crown is dated, without sufficient evidentiary foundation and the application is premature.
Age
[22] The complainant was an adult (19) at the time of these alleged offences and will be an adult (21) when she is expected to testify. An adult should generally be expected to testify in open court: R. v. C.D., 2021 ONSC 6995 at para. 42; R. v. T.J.N., 2018 ONSC 569 at para. 10.
[23] The Crown argued that at the age of 21 the complainant is “barely out of childhood”, which should weigh heavily in favour of granting the application. I disagree. The level of maturity of young adults is wide-ranging. There is no evidence about the complainant’s personal circumstances or level of maturity. I am not prepared to rely on stereotypes and generalizations to make conclusions about the complainant based on her age.
[24] In the absence of evidence about the complainant’s circumstances or maturity, I find that age weighs neither in favour of granting of the application nor against it. Her age is a neutral factor.
Relationship with the Accused
[25] The complainant and the accused did not have a long-term, intimate or domestic relationship. They were acquaintances. He was not a stranger, but rather someone with whom she engaged in conversation, text messaged and took walks with during COVID-19. I find that the nature of the relationship is a neutral factor weighing neither in favour nor against the granting of the application.
Mental or Physical Disability
[26] I am not persuaded that the Crown has established that the complainant has a physical or mental disability. No cases were provided by either party on what is meant by “mental or physical disability”. I lack any evidence of what a “PTSD” diagnosis calls for generally or in this case specifically, or that the complainant’s condition is so debilitating that it falls within the definition: C.D., at para. 43.
[27] I accept that the complainant told Ms. Chevalier that she has PTSD and that she takes medication. I also accept Ms. Chevalier’s evidence that it is her usual practice to ask whether the diagnosis was made by a medical doctor.
[28] The term “PTSD” has now found its way into common speech. It is used frequently today in discourse on personal well-being or mental health. But it means different things to different people. In the absence of some evidence about what a diagnosis of “PTSD” means, I am left to rely on preconceived ideas unsupported by evidence. Based on the complainant’s explanation of her symptoms to Ms. Chevalier; it is not clear what her PTSD triggers are. It seems like she is describing an aggravated form of anxiety. The evidence is too vague for me to tell. I cannot conclude that the complainant’s condition rises to the level of a mental disability, though I will consider it as a factor on the application under “other factors”.
Other Factors
[29] There is no evidence, and no suggestion, that the complainant needs the order for her security or for her protection from intimidation or retaliation.
[30] Clauses (f) and (f.1) of subsection 486.2(3) are not applicable on these facts.
[31] Courts often accept the common-sense idea that letting alleged victims of sexual offences testify with an aid, such as CCTV or a screen, is likely to foster society’s interests in encouraging the reporting of sexual offences and participation of victims in the criminal justice process. I accept that it may. But, there is no empirical evidence that I am aware of that shows that testimonial aids encourage the reporting of sexual offences. This factor weighs only slightly in favour of granting the application.
[32] No testimonial aid was canvassed with the complainant other than CCTV. I echo the concerns expressed by Conlan J. in J.D. at para. 11. The fact that a complainant might experience a “panic attack” or “freeze up” and affect her ability to testify does not end the inquiry in respect of testimonial aids. Rather, it appears that the Crown in Halton seeks orders for CCTV in every sexual assault trial as a matter of course.
[33] It was not discussed with the complainant, for example, whether she could testify from behind a screen, so that she could be in the jury’s presence but not see the accused. There is also no evidence as to the impact a support person in the courtroom would have on her ability to testify or manage her focus. Instead, Ms. Chevalier offers her opinion that a screen is inadequate. I do not accept her opinion. With the greatest of respect, it is not admissible opinion evidence. Her expertise to give such an opinion has not been established. The legislation provides for the use of a screen. Presumably it is capable of meeting the underlying purpose of these provisions. Ms. Chevalier’s concerns about the use of the screen could be rectified by the trial judge.
[34] I accept that in March 2023 the complainant was anxious about testifying and feared that she might not be able get her story out. She had not yet done any preparation for trial.
[35] Ms. Chevalier agreed in cross-examination that there could be any number of factors that impact a person’s ability to testify. The courtroom is a strange environment for most people. Sometimes people are just fearful of it because it is different. Ms. Chevalier offered the complainant a tour of the courtroom, but she declined. She wanted to wait until closer to the trial.
[36] Ms. Chevalier testified that part of her role with VWAP is to help prepare complainants for testifying by providing them with information about the court process and emotional support. This is meant to help alleviate a witness’s anxiety about testifying. VWAP helps prepare vulnerable witnesses for testifying by meeting with them in person, giving them a tour of the courtroom to help them feel more comfortable in it, and tips on how to manage anxiety and nerves during testimony. VWAP also attends the complainants’ meeting(s) with the Crown in advance of the trial to help clarify the court process, explain what testifying involves, provide emotional support at those meetings, and prepare such vulnerable witnesses to take the stand. These are very important services provided by VWAP. None of this witness preparation has yet happened in this case.
[37] In the absence of such preparation, it can reasonably be expected that the complainant would feel anxious and scared about testifying and seeing the accused. It is understandable that she would worry that her PTSD symptoms might get triggered. Few witnesses, if any, are free of such worry before they come to court. This is especially so when they are unprepared for the process, unfamiliar with the setting and know little of what to expect. Proper preparation is essential to address the complainant’s fears.
[38] In her statement to the police, the complainant said that she suffered from anxiety before she met the accused. She managed her anxiety with medication. She also told Ms. Chevalier that she was prescribed medication for PTSD. There is no evidence whether it is the same medication. There is no evidence what medication she takes for PTSD, how long she has been taking it and whether the medication helps with her symptoms.
[39] Ms. Chevalier agreed with the suggestion that sometimes medication for mental health concerns takes time and adjustment to become effective. There is no way to tell whether this has occurred in this case. The complainant’s description of how she manages anxiety in her statement suggests that medication helps alleviate her symptoms. The same could be true for her PTSD symptoms. There is no update about the complainant’s condition since March 30, 2023. It is entirely possible that by September, when this trial starts, medication may have helped the complainant manage her PTSD symptoms.
[40] While I accept that the complainant may feel anxious about testifying in the courtroom and in front of the accused, I am not satisfied that the Crown has discharged its burden on this application. The evidence in support of an application like this must address the standard set out in the Code to justify a departure from the normal mechanism of presenting evidence. It fails to do so here.
[41] In R. v. M.T., 2022 ONSC 3345, at para. 14, Conlan J., expressed concern about what he perceived. He saw a routine practice in Halton of the Crown relying solely on CCTV as a testimonial aid and the failure to present any degree of detail about the complainant’s circumstances or mental disability. I share those concerns. There needs to be evidence, more than just of a general nature, that would justify the order sought. The exercise under s.486.2(2) is one of balancing: an accused’s fair trial rights, the potential risk of the jury engaging in moral reasoning prejudice and the truth-finding function of the court process: R. v. Levogiannis, [1993] 4 S.C.R. 475 at para. 13. The fair trial rights of the accused are always engaged.
[42] The Crown approached this application as if the CCTV order should be granted as a matter of course. At one point Mr. Khoorshed expressly stated that CCTV is almost “automatic” in sexual assault trials to avoid “potential” problems. I disagree.
[43] Orders for CCTV are neither almost “automatic” nor to be granted as a matter of course in every sexual assault trial. The provisions in respect of CCTV in sexual assault cases involving adults are not mandatory or even presumptive. If it were Parliament’s intention that all sexual complainants testify from outside the courtroom by way of CCTV, they would have said so. This is not the case. The Crown must discharge its burden to satisfy the court on a balance of probabilities that the testimonial aid is likely to facilitate the adult witness’ ability to communicate her evidence. While it is not a high threshold, it is nonetheless a threshold.
[44] The reality is that in this multi-witness three-week jury trial, the only witness who would testify remotely outside the courtroom would be the complainant. While juries are presumed to follow jury instructions, and would be instructed to disregard or make nothing of the fact that she is testifying outside the courtroom, there is a risk of moral prejudice. The jury might wonder why the adult complainant is the only witness testifying from outside the courtroom, assume that it is because she is afraid of the accused and conclude that the allegations are therefore more likely to be true.
[45] While juries are presumed to follow instructions, moral prejudice is more difficult to cure in an instruction: R. v. R.K., 2020 ONSC 2568 at para. 49. To elicit the truth, the fair trial rights of the accused and the risk of moral or reasoning prejudice must be balanced with the need to facilitate the giving of evidence by allowing a witness to testify outside the courtroom. Being in the presence of the judge and the jury in a courtroom conveys the solemnity of the occasion on a witness. There has to be some evidentiary foundation why an exception is made for a particular witness. The evidence in support of the Crown’s position in this case is too vague, too general and too dated to be of assistance.
[46] The Crown’s application is premature. None of the usual steps VWAP would take to help familiarize a complainant with the courtroom or let her know what to anticipate when she testifies have been taken. Such preparation is essential to help a witness manage fear and anxiety. At this point, I cannot even be sure the complainant knows what testifying in a courtroom involves. The use of the screen has not been discussed with her. There is no evidence whether the use of a support person in the courtroom alone, or in combination with a screen, would adequately facilitate her ability to communicate evidence.
Conclusion
[47] On the totality of the evidence on this application, I am not persuaded that the Crown has established on a balance of probabilities that permitting the complainant to testify outside the courtroom by CCTV would facilitate her giving a full and candid account of what she says happened to her or otherwise in the interests of justice. The Crown’s application for an order to permit the complainant to testify by way of CCTV is dismissed, without prejudice to the Crown’s ability to renew the application closer to the trial date.
Chozik J.
Released: August 10, 2023
