RULING ON APPLICATION VOIR DIRE

CLOSED CIRCUIT TELEVISION/SCREEN s. 486.2(2) and SUPPORT PERSON s. 486.1(2) of the [CRIMINAL CODE](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

MACFARLANE j.

[1] Robert Charette stands charged with three counts as follows:

a) That he committed a sexual assault on the complainant (hereinafter in the written version of these reasons, “M.S-J”) contrary to s. 271 of the Criminal Code[^1] (“Code”);

b) That he committed sexual interference on M.S-J, contrary to s. 151 of the Code; and

c) That he invited M.S-J to sexually touch him, contrary to s. 152 of the Code.

[2] The Crown has applied for orders pursuant to ss. 486.2(2) of the Code to allow M.S-J to testify via CCTV or behind a screen, and pursuant to s. 486.1(2) of the Code to allow a support person to be present with M.S-J during her testimony.

[3] For the brief reasons that follow, I order that M.S-J shall be permitted to testify via CCTV with her support person, Kristy McAuley, present in the room with her and close to her.

M.S-J’s Evidence

[4] The court received evidence from M.S-J via an affidavit sworn November 29, 2023[^2], and viva voce. For the limited purpose of the voir dire, Mr. Pabedinskas consented to her testifying behind a screen.

[5] M.S-J is 21 now, but at the time of the alleged offences, she was 15-16 years of age. She babysat the children of the accused and his wife, while living under their roof for a period of about a year-and-a-half. It was during this time that the offences are alleged to have occurred.

[6] The first preliminary inquiry in this matter was scheduled on August 30, 2021, which I note was M.S-J’s 19th birthday. The court did not permit M.S-J to testify behind a screen and upon hearing that, without even entering the courtroom, she became physically ill (vomiting), which delayed the proceeding for seven months, to April 1, 2022, when the preliminary inquiry was finally conducted via Zoom videoconference. Even still, M.S-J described being very anxious and “screaming at the judge” and found it very difficult to stay calm. Today was M.S-J’s first time physically in a courtroom, as all prior events in court which proceeded, have taken place virtually.

[7] I pause to note that the use of video conferencing facilities in court proceedings has become routine since the COVID-19 pandemic, and courts and judges have become accustomed to witnesses testifying via video link; indeed, I note from the Pre-trial Report to Trial Judge in this matter that an expert witness is expected to testify via videoconference on consent in this proceeding.

[8] M.S-J has worked with Ms. McAuley, a Victim Witness Support Worker, since she first disclosed her allegations against the accused, when M.S-J was 16 years of age. She denied having discussed the details of the case with Ms. McAuley and seeks to have her present during her testimony to continue to provide the emotional support that she has given M.S-J for the past five years.

[9] M.S-J has testified that she is concerned that without the orders sought by the Crown, she will stutter and not make sense, will be anxious, and will likely be sick again.

Issue No. 1 – Testimonial Aid, s. 486.2(2)

[10] The court has discretion to allow any witness to testify behind a screen or outside the courtroom “…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] The factors to be considered are:

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(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.[^4]

[11] In considering the relevant factors, I find the following all to have been proven by the Crown on a balance of probabilities:

• that M.S-J is now 21, but was as young as 15 at the time of the alleged offences;

• that M.S-J suffers from anxiety that has, in the context of this case at a prior court attendance, caused physical illness;

• that the offences charged are serious sexual offences that are alleged to have been committed while M.S-J was a child living under the accused’s roof; and,

• that M.S-J feels threatened by the accused.

[12] The foregoing facts weigh heavily in favour of granting the order sought. In terms of the question of society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process, I do consider it to be a matter of common sense that the availability of testimonial aids to witnesses who are uncomfortable facing an accused weighs in favour of granting the order sought, however only marginally so, as found by E. Chozik J. in the case cited by the defence.[^5]

[13] The Q.T.D. case involved a pre-trial application for a s. 486.2(2) order, which was dismissed as premature, without prejudice to the ability of the Crown to renew the application closer to the trial date.[^6] The facts in that case were significantly different that the case at bar. The trial was scheduled to be heard by a judge and jury, not a judge alone; the only witness on the application was a Victim/Witness Assistance Program support worker who had not spoken with the complainant for months, not the complainant; the complainant was the same age as M.S-J at the time of the application, but was an adult at the time of the alleged offences; the accused and the complainant were merely acquaintances, not living together under the same roof; and, there was no significant age gap between the accused and complainant in Q.T.D., as there is here. Perhaps most compellingly though, we have in the present case, uncontroverted evidence that there was a seven-month delay in this proceeding when the refusal of the court to allow M.S-J to testify behind a screen upset her so much that she vomited.

[14] M.S-J testified behind a screen during the voir dire, but given the physical layout of our courtroom, and the availability of a CCTV facility that court staff have confirmed to be functioning, I consider the CCTV option to be preferable to having M.S-J continue to testify behind a screen. As fairly conceded by Mr. Pabedinskas, the CCTV connection would allow the accused to see the complainant, but not the other way around.

[15] In all of the circumstances, I have no hesitation in finding that allowing M.S-J to testify via CCTV will facilitate her giving a full and candid account of the acts complained of and is otherwise necessary in the interest of the proper administration of justice.

Issue No. 2 – Support Person, s. 486.1(2)

[16] Very little time was spent in argument on this aspect of the application. The court has discretion to order for any witness that a support person of the witness’ choice, in this case Kristy McAuley, 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.”[^7] The factors are similar to the factors discussed above, and are set out in the Code.[^8]

[17] In addition to the factual findings already expressed, I am satisfied that the Crown has proven on a balance of probabilities, that Ms. McAuley’s presence with the witness will assist the witness to remain calm during her testimony, and to avoid the kinds of outbursts she described as having occurred during the Zoom preliminary inquiry.

[18] For all of these reasons, I am satisfied that allowing Ms. McCauley to be present with and close to M.S-J while the latter testifies will facilitate the giving of a full and candid account by M.S-J of the acts complained of and will otherwise be in the interest of the proper administration of justice.

Conclusion

[19] The Crown’s application is granted. I order that M.S-J shall be permitted to testify via CCTV with her support person, Kristy McAuley, present in the room with her and close to her.

[20] Finally, I note that it is now after 2:00 p.m. on the first day of this trial. In my respectful view, the opposition to the Crown’s application was frivolous, vexatious, and a waste of the court’s time. The accused obviously has a right to make full answer and defence, but counsel should have consented to this application on the facts of this case. I wish to note for the purposes of any potential s. 11(b) argument in this matter, that I consider the half-day of trial time spent dealing with this to have been attributable to the unreasonable conduct of counsel for the accused.

Original Signed by “Justice J.R. Macfarlane”

J. Ross Macfarlane

Justice

Delivered Orally: November 29, 2023

Made Court Exhibit: December 4, 2023

COURT FILE NO.: CR-22-5441

DATE: 20231204

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ROBERT CHARETTE

RULING ON APPLICATION

Macfarlane J.

Delivered Orally: November 29, 2023

Made Court Exhibit: December 4, 2023

[^1]: Criminal Code, R.S.C. 1985, c. C-46, as am.

[^2]: Exhibit 1 to the voir dire

[^3]: Code, s. 486.1(2)

[^4]: Code, s. 486.1(3)

[^5]: R. v. Q.T.D., 2023 ONSC 4628, 2023 O.J. No. 3728, at para. 31 (“Q.T.D.”)

[^6]: Ibid. at para. 47

[^7]: Code, s. 486.1(2)

[^8]: Code, s. 486.1(3)

R. v. Charette, 2023 ONSC 6842

Case Summary

RULING ON APPLICATION VOIR DIRE

CLOSED CIRCUIT TELEVISION/SCREEN s. 486.2(2) and SUPPORT PERSON s. 486.1(2) of the [CRIMINAL CODE](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

M.S-J’s Evidence

Issue No. 1 – Testimonial Aid, s. 486.2(2)

Issue No. 2 – Support Person, s. 486.1(2)

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues