COURT FILE NO.: CR-22-10000277 DATE: 20240226 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NIMO ALI and CARLINGTON GRAHAM Respondents
Counsel: James Cruess and Brigid McCallum, for the Applicant James Miglin, for the Respondent, Nimo Ali Steven Hinkson, for the Respondent, Carlington Graham
HEARD: November 24, 27 and December 6, 2023
B. P. O’MARRA J.
Rulings Pursuant to s. 486.2(2) of the criminal code to permit two witnesses to testify from outside the courtroom
OVERVIEW
[1] The respondents are jointly charged on a multi-count indictment with human trafficking offences that allegedly occurred in September and October 2020. The two complainants, A.C. and B.W., were 15 and 16 years old respectively at the time of the alleged offences. They are now over 18 years old.
[2] The Crown applied in separate applications for orders to permit both complainants to testify from outside the courtroom. The respondents opposed both applications.
[3] On November 27, 2023, I allowed the application in regard to A.C. On December 6, 2023, I allowed the application in regard to B.W. The jury trial for both respondents has now been completed.
[4] These are my reasons regarding the two applications by the Crown.
The Allegations
[5] A.C. and B.W. were 15 and 16 years old respectively in September 2020. They were both living apart from their families without secure living arrangements. They met the respondent Ms. Ali, who was 34 years old at the time. She offered them a place to stay. The Crown alleges that Ms. Ali introduced them to the respondent Mr. Graham. The Crown alleges that the respondents involved both complainants in the sex trade over a short period of time. This process included posting photos of the complainants on advertisements for sexual services and introducing the complainants to clients for the sex trade. The two complainants reported they were pressured and threatened to participate in the sex trade to obtain money for the two respondents.
[6] The respondents were arrested on October 28, 2020.
The Preliminary Hearing
[7] A preliminary hearing was conducted intermittently on dates in October 2021, and January, February, and March 2022. One of the reasons for the extended dates at that stage was difficulties in completing cross examination of A.C.
[8] A.C. began her testimony on October 28, 2021. She testified by Zoom from a remote location. Her video statement to the police was admitted pursuant to s. 540(7) of the Criminal Code, R.S.C., 1985, c. C-46. Her examination in chief and cross examination were completed before lunch that day. Her testimony was paused, as the Crown made disclosure to counsel for the respondents related to human trafficking allegations not connected to either of the respondents.
[9] A.C. was anxious and exhibited panic attacks when she saw the respondents on video by Zoom. She no longer wanted to continue her testimony. Her cross examination was never completed.
[10] On December 16, 2021, Officer Taylor of the Toronto Police Service (the “TPS”), the officer in charge of the case, received information from A.C.’s mother that she had run away from home after being served with a subpoena for another trial.
[11] A.C. did not attend appearances on January 13 or 14, 2022, nor appearances set for January 20 or February 14, 2022. On the latter date, the respondents were committed to stand trial on the evidence received as of that date.
[12] On January 4, 2022, Officer Taylor spoke to A.C. by phone. A.C. was concerned that her address had been stated by defence counsel during her last appearance for testimony. She was willing to testify on January 13, 2022.
[13] Between January 7 to 12, 2022, Officer Taylor tried to connect with A.C. unsuccessfully. On January 12 and 13, 2022, A.C. would only respond to Officer Taylor by text. She said she was scared to continue participating in the proceeding.
In the Superior Court
[14] On November 6, 2023, Officer Regnier of TPS spoke to A.C. by phone in anticipation of this trial. A.C. said she was anxious and fearful for her safety in regard to the respondents, especially Mr. Graham. She said that even seeing his face or being in the same room with him would instill fear in her.
[15] On November 7, 2023, a member of the Victim Witness Assistance Program spoke to A.C. about testimonial aids. A.C. said that if she has to be in the same room as the accused, she will not attend court, as she does not feel comfortable being there and having both respondents look at her.
[16] On November 27, 2023, I allowed the application to permit the witness A.C. to testify from outside the courtroom by way of CCTV. This ruling was subject to the quality of the transmission and sound being such that her evidence in chief and cross examination can be clearly seen and heard by all participants in court. The ruling was also subject to the ability for A.C. to observe and comment on exhibits and documents as she testifies.
Application in regard to B.W.
[17] This application was presented on December 6, 2023. The jury had been selected and heard evidence for several days before this. Counsel for both respondents opposed the application but did not object to the short notice. The Crown proposed that B.W. testify from another room in the courthouse. B.W. was in the building with her one-year-old child at the time.
[18] Officer Taylor testified on the application. He had phone and text contacts with B.W. in the few days preceding December 6, 2023 and also spent some time with her. B.W. advised that she preferred to be in a separate room from the respondents as she testified. She said she would find it distracting to be in the same room. Officer Taylor referred to B.W. exhibiting “manageable anxiety” about testifying at trial.
[19] I allowed the Crown application in regard to B.W., and she proceeded to testify that day before the jury.
Statutory Authority
[20] The Criminal Code in ss. 486.2(2) – (6) sets out the procedure and authority to s. 486.2:
Other witnesses
(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.
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
Factors to be considered
(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.
Same procedure for determination
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
Analysis
[21] The two complainants were 15 and 16 years old at the time of the alleged offences. Their anticipated evidence would necessarily include some very personal information relating to involvement in the sex trade. There is a significant societal interest in encouraging both the reporting of such alleged offences and participation in the criminal justice process. The two complainants describe varying degrees of discomfort and anxiety about being in the same room as the respondents. Both of them are available and willing to testify from outside the courtroom.
[22] Section 486.2(2) of the Code was amended in 2015. The previous version required the judge to find that the order would be “necessary to obtain a full and candid account from the witness of the acts complained of.” The current standard is whether the judge “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.” The threshold for the making of such orders has clearly been lowered.
[23] The making of such an order will be accompanied by a mid-trial and final instruction as set out in the precedent from Justice Watt’s manual as follows:
MID-TRIAL 13-A
SEQUESTERED TESTIMONY
(CODE, ss. 486.2(1); (2); (5))
[1] In a criminal case, a witness may give evidence in different ways.
[2] (NOW) will testify from outside the courtroom. In cases like this, our law permits this procedure. It helps the witness to give evidence by providing more comfortable surroundings in which s/he may do so.
[3] The procedure has nothing to do with the guilt or innocence of the accused. You must not draw any inference of any kind from its use. To be more specific, do not use it to conclude, or to help you conclude that the accused is guilty of the offence(s) charged.
[4] The testimony from outside the court room also has nothing to do with how much or little you may believe of or rely upon the evidence of (NOW). It does not affect it in any way.
RESULT:
[24] The applications related to both witnesses are allowed. This is subject to the quality of the video and audio transmission facilitating examination in chief and cross examination.
B.P. O’Marra J. Released: February 26, 2024
COURT FILE NO.: CR-22-10000277 DATE: 20240226 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING Applicant – and – NIMO ALI and CARLINGTON GRAHAM Respondents
RULINGS B. P. O’MARRA J. Released: February 26, 2024