COURT FILE NO.: CR-23-14-0000
DATE: 2023-09-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Applicant
- and -
I.P.
Respondent
C. Eastwood, for the Applicant
D. Robinson, for the Respondent
HEARD: September 20, 2023 in-person
RULINGS ON APPLICATIONS UNDER SS. 486.1(1), 486.1(2) AND 486.2(2)
C. Chang J.
[1] The Crown brings the following applications pursuant to the Criminal Code of Canada, R.S.C. 1985, c. C-46:
a. pursuant to s. 486.1(1), for the complainant G.L. to testify at trial with a support person, her biological father;
b. pursuant to s. 486.1(2), for J.L. to testify at trial with a support person, a Victim/Witness Assistance Worker; and
c. pursuant to s. 486.2(2), for J.L. to testify at trial by closed circuit television (CCTV) from a separate room at the courthouse.
[2] The defence does not oppose the s. 486.1(1) application for an order that G.L. be permitted to testify with a support person; however, it does object to that person being G.L.’s biological father. It also opposes both applications respecting J.L. pursuant to s.486.1(2) for an order permitting her to testify with a support person and pursuant to s. 486.2(2) for an order for her to testify by CCTV.
[3] No viva voce evidence was tendered on these applications, the parties having previously agreed to rely only on the documentary evidence and written submissions filed, as well as their oral submissions during the hearing.
FACTS
[4] The accused, I.P., is charged with two counts each of sexual assault and sexual interference in contravention of ss. 271 and 151, respectively, of the Criminal Code of Canada.
[5] The alleged offences relate to the complainants, F.L. (who was eleven years old at the time of the alleged offences and is currently fourteen years old) and G.L. (who was seven years old at the time of the alleged offences and is currently ten years old).
[6] At the time of the alleged offences, I.P. was in a domestic relationship with J.L. and lived together with J.L., F.L. and G.L. in the same residence in Milton.
[7] J.L. is the mother of both F.L. and G.L. J.L. is not a complainant in the case-at-bar, but she is the complainant in a separate matter where I.P. is charged with multiple counts of assault and sexual assault against her.
[8] The complainant G.L. has requested that she be permitted to testify at trial with a support person; specifically, her biological father.
[9] J.L. has requested that she be permitted to testify at trial with a support person, a Victim/Witness Assistance Worker, and by CCTV from a separate room in the courthouse. She says that she suffers from anxiety, which causes her to “freeze up”, have panic/anxiety attacks, have difficulty focussing and recalling details and be rendered unable to speak. J.L. fears that having to be in the same room as I.P. and to testify in front of him and others will trigger a “freeze up” and a panic/anxiety attack.
[10] On the consent of I.P., J.L. testified at the preliminary hearing in this matter by CCTV from a separate room in the courthouse.
ISSUES
[11] The issues to be determined on these applications are as follows:
a. Should an order be made pursuant to s. 486.1(1) for G.L. to testify at trial with a support person, her biological father?
b. Should an order be made pursuant to s. 486.1(2) for J.L. to testify at trial with a support person, a Victim/Witness Assistance Worker?
c. Should an order be made pursuant to s. 486.2(2) for J.L. to testify at trial by CCTV from a separate room in the courthouse?
ANALYSIS
Issue #1: Should an order be made pursuant to s. 486.1(1) for G.L. to testify at trial with a support person, her biological father?
Parties’ Positions
[12] The Crown submits that s. 486.1(1) is mandatory and requires the court to order that a support person of the witness’s choice be permitted to be present and be close to the witness when she testifies unless such order would interfere with the proper administration of justice. The Crown further argues that permitting G.L.’s biological father to be that support person would not interfere with the administration of justice.
[13] The defence acknowledges the mandatory nature of s. 486.1(1) and does not object to the making of the applicable order, but submits that the support person should not be G.L.’s biological father or anyone with whom G.L. has a close relationship. The defence argues that anyone with a close relationship with G.L. would be at a “heightened risk” of failing to retain an appropriate emotional distance from G.L. and from the allegations against I.P. respecting her.
Law
[14] Section 486.1(1) of the Criminal Code of Canada provides as follows,
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
[15] Courts have permitted a witness’s mother (see: R. v George, 1996 CanLII 626 (ON CA)) and trial witnesses (R. v D.C., 2008 NSCA 105; R. v Levac, 2019 SKQB 322) to be support persons under s. 486.1(1) or its predecessor provision.
Decision
[16] I find that an order should be made pursuant to s. 486.1(1) permitting G.L.’s biological father to be present and close to G.L. when she testifies at trial.
[17] Section 486.1(1) is mandatory, not only respecting the presence of a support person and his proximity to the minor witness during her testimony, but also respecting the witness’s choice of that support person.
[18] I do not accept the defence’s argument that G.L.’s biological father, or indeed anyone in a close relationship with her, would interfere with the proper administration of justice. I am also not satisfied that G.L.’s father would conduct himself improperly as her support person. The defence admits that there is no evidence that he would act inappropriately during G.L.’s testimony at trial and, in my view, its argument in this respect is based on nothing more than speculation. Furthermore, and in any event, G.L.’s father can, before G.L. gives her evidence, be provided with the appropriate guidance, cautions and preparation about how to properly conduct himself in the role of G.L.’s support person.
[19] As set out above, courts have permitted relatives – even parents – of witnesses to be support persons, which, to me, renders untenable the defence’s argument that G.L.’s familial relationship with her choice of support person automatically disqualifies him. Furthermore, and in any event, the defence’s admission that there is no evidence that G.L.’s father would act inappropriately as a support person, in my view, defeats its argument.
[20] I am therefore satisfied that an order should be made permitting G.L.’s biological father to be present with and close to her during her trial testimony.
Issue #2: Should an order be made pursuant to s. 486.1(2) for J.L. to testify at trial with a support person, a Victim/Witness Assistance Worker?
Parties’ Positions
[21] The Crown submits that J.L.’s anxiety, with its “freeze ups” and panic/anxiety attacks, by itself, “would be enough” to grant its application, as “there just needs to be some basis” for the requested order and no exceptional circumstances are required. In addition, argues the Crown, I.P. was previously in a domestic relationship with J.L., had children with her, cohabited with her and has been charged in a separate criminal proceeding with assaulting and sexually assaulting her.
[22] The defence submits that, because J.L.’s evidence will be “essentially narrative evidence, it places her in a different category” (whatever that means), as she will not be testifying about her trauma. It argues that, while I.P.’s and J.L.’s past relationship and the criminal charges against I.P. respecting J.L. constitute “real factors to consider”, the s. 486.1(3) factors in the case-at-bar militate against granting the Crown’s application.
Law
[23] Sections 486.1(2) and (3) of the Criminal Code of Canada provide as follows,
486.1 (2) 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 a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies 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.
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(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) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
Decision
[24] I find that an order should be made pursuant to s. 486.1(2) permitting a Victim/Witness Assistance Worker to be present and close to J.L. when she testifies at trial. I am satisfied that having a support person present with and close to J.L. during her trial testimony will facilitate her giving of a full and candid account of the acts complained of and would otherwise be in the interest of the proper administration of justice.
[25] I do not accept the Crown’s argument that J.L.’s anxiety, by itself, is sufficient to satisfy the requirements of s. 486.1(2). Although the applicable threshold for the making of orders under ss. 486.1(2) and 486.2(2) has been lowered with the enactment of the Canada Victims Bill of Rights, S.C. 2015, c. 13, s. 2 and the applicable amendments to the Criminal Code of Canada, the matter “is not a fait accompli simply by the Crown making the application” (see: R. v George, 2020 BCSC 212, at para. 23). That said, I also do not accept the defence’s argument that the matter is a fait accompli (my words, not the defence’s) simply by the fact that J.L. is not the complainant in this proceeding.
[26] In my view, there is no categorical bright line either way on applications under s. 486.1(2) or, for that matter, under s. 486.2(2). In exercising its discretion, the court is required to review each application on its merits based on a thoughtful consideration of the factors set out in ss. 486.1(3) or 486.2(3) in the context of the specific facts of each case.
[27] In the context of the specific facts in the case-at-bar, the following factors, in my view, weigh heavily in favour of granting the application: (c) the nature of the offence; (d) the nature of the relationship between J.L. and I.P.; and (e) the requirement to ensure that J.L. is protected from intimidation.
[28] I.P. is charged with sexual offences against F.L. and G.L. in the case-at-bar and against J.L. in a separate proceeding. Given the unique nature of sexual offences, including, without limitation, the psychological nature of the harm to the complainant and the domination-imbued nature of the violence, s. 486.1(3)(c) significantly favours granting the Crown’s application.
[29] Furthermore, it is undisputed that J.L. and I.P. were previously in a domestic relationship during which I.P. had children with J.L. and cohabited with her, F.L. and G.L. in Milton. Given this and the fact that I.P. has been charged in a separate proceeding with assaulting and sexually assaulting J.L., s. 486.1(3)(d) significantly favours granting the Crown’s application.
[30] In addition, the nature of J.L.’s relationship with I.P., I.P.’s extant criminal charges for assault and sexual assault of J.L. and the unique character of sexual assault offences also satisfy s. 486.1(3)(e) and significantly favour granting the Crown’s application.
[31] In my view, granting the Crown’s application in this case would best serve the goals of the court process to seek truth “and, to that end, [ensure that] the evidence of all those involved in judicial proceedings [is] given in a way that is most favourable to eliciting the truth” (see: R. v Levogiannis, 1993 CanLII 47, at para. 13).
[32] I am therefore satisfied that an order should be made permitting a Victim/Witness Assistance Worker to be present with and close to J.L. during her trial testimony.
Issue #3: Should an order be made pursuant to s. 486.2(2) for J.L. to testify at trial by CCTV from a separate room in the courthouse?
Parties’ Positions
[33] Both the Crown and defence advance the same arguments respecting the Crown’s s. 486.2(2) application as they do on the Crown’s s. 486.1(2) application. The Crown also submits that, with I.P.’s consent, J.L. testified at the preliminary hearing with a support person.
Law
[34] Sections 486.2(2) and (3) of the Criminal Code of Canada provide as follows,
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.
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(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.
Decision
[35] I find that an order should be made pursuant to s. 486.2(2) permitting J.L. to testify at trial by CCTV. I am satisfied that permitting her to do so will facilitate her giving a full and candid account of the acts complained of and would otherwise be in the interest of the proper administration of justice.
[36] For the same reasons that I am prepared to grant the Crown’s s. 486.1(2) application, I am also prepared to grant its s. 486.2(2) application and, given that similarity, I will not repeat those reasons here.
[37] I am therefore satisfied that an order should be made permitting J.L. to testify at trial by CCTV from a separate room in the courthouse.
DISPOSITION
[38] For the reasons outlined above, I make the following orders:
a. the Crown’s application for an order pursuant to s. 486.1(1) permitting G.L.’s biological father to be present with and close to G.L. during her testimony at trial is granted;
b. the Crown’s application for an order pursuant to s. 486.1(2) permitting a Victim/Witness Assistance Worker to be present with and close to J.L. during her testimony at trial is granted;
c. the Crown’s application for an order pursuant to s. 486.2(2) permitting J.L. to testify at trial by CCTV from a separate room in the courthouse is granted; and
d. orders to go accordingly.
C. Chang J.
Released: September 27, 2023
COURT FILE NO.: CR-23-14-0000
DATE: 2023-09-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Applicant
- and -
I.P.
Respondent
RULINGS ON APPLICATIONS UNDER SS. 486.1(1), 486.1(2) AND 486.2(2)
C. Chang J.
Released: September 27, 2023