Court File and Parties

Court File No.: CR-23-46 Date: 2024-04-11 Ontario Superior Court of Justice

Between: His Majesty The King – and – J.A. Accused

Counsel: A. Khoorshed, for the Crown M. Owoh, for the Accused

Heard: April 11, 2024

Endorsement

CONLAN J.

[1] This Endorsement shall be uploaded to the electronic Indictment and shall be copied to both counsel who appeared at court today, Mr. A. Khoorshed for the Crown and Mr. M. Owoh for the accused.

[2] The accused faces four criminal charges involving his (then) minor step-daughter – two counts of sexual assault (section 271 CCC) and two counts of sexual interference (section 151 CCC). The case is scheduled for a jury trial this Fall. The complainant will be 19 years old at the time of the trial. She was between 9 and 13 years old at the time of the alleged offences.

[3] The Crown filed two applications – one for a testimonial aid at trial (CCTV testimony from outside the courtroom) for the complainant and the other for admission at trial of the complainant’s audio-video recorded police statement. The former application was brought under section 486.2(2) CCC, and the latter under section 715.1 CCC.

[4] At the commencement of the hearing today, the Crown abandoned that portion of the testimonial aids application that involved another Crown witness (not the complainant).

[5] On consent of the accused, subject of course to the complainant, while testifying at trial, adopting the contents of the recorded police statement, the Crown’s section 715.1 CCC application is granted.

[6] For the brief reasons that follow, the Crown’s section 486.2(2) CCC application, as it concerns the complainant, is dismissed.

[7] In support of its application, notwithstanding Rule 6 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, the Crown filed no application record, no synopsis of the case, and no evidence of any kind including no affidavit material from anyone. What the Court had at its disposal was the Indictment, a Notice of Application, and a few uncontested facts as outlined above.

[8] The Defence filed a factum in opposition to the application. Oral submissions by both counsel were very brief. No oral evidence was adduced. Nothing was mentioned to this Court, whether in writing or otherwise, about whether the complainant was offered another testimonial aid while testifying at trial, such as the statutorily-recognized privacy screen.

[9] One might describe the application as an earnest and well-intentioned one but presented in the most perfunctory and boiler-plate fashion imaginable. It reminded this Court of the recent decision of Justice Latimer of the Ontario Court of Justice in R. v. R.G., 2024 ONCJ 37. Paragraphs 15 through 20 of that decision are set out below, and this Court agrees with those sentiments expressed by Justice Latimer.

[15] CCTV is not the only testimonial aid to reside in s. 486.2(2). The provision also refers to “a screen or other device that would allow the witness not to see the accused”. Screens are available at both courthouses in our Region and used, albeit infrequently, elsewhere in the province. On the evidence before me, a screen is placed on the witness stand in a manner that blocks the witness’s view of the accused. Because of the nature of the screen’s material, however, counsel can still see the witness while they are testifying.

[16] A screen’s value to the administration of justice is that the witness remains in the courtroom, visible and in close proximity to both counsel and the court. It does, however, create complications in ensuring that the witness does not see the accused when they enter and exit the courtroom, or while standing when the judge enters.

[17] The appropriateness of a screen in a given criminal proceeding is an issue to be addressed on a case-by-case basis. What is troubling on these applications, however, is the Crown’s repeated failure to advert to even the existence of a screen when filing these applications. The boilerplate Crown factum filed on this application, like the Crown factum in all recent applications, while lengthy, makes no mention of the recent decisions from our local Superior Court judiciary on the potential compromise position of a screen: see R. v. M.T., 2022 ONSC 3345, per Conlan J.; R. v. QTD, 2023 ONSC 4628, per Chozik J.

[18] As I expressed to counsel during oral submissions, I am troubled by the continued manner in which the prosecution brings these motions, and the motion material’s neglect of a live issue in the mind of the local judiciary, specifically the potential for a screen to accomplish the s. 486.2 Code goals in a given case. This issue cannot come as a surprise to the local Crown Attorney’s Office, as it has been raised in prior CCTV applications in this court by both me and Justice Crawford. The concern raised by Justice Conlan in M.T., specifically that he is “bothered by what appears to be a routine practice in Halton of the Crown relying solely on one testimonial aid, that is CCTV”, is a concern shared by the Halton OCJ bench.

[19] It is plain the Crown Attorney’s Office views a screen as an inadequate solution to the concerns raised by complainants in sensitive proceedings. A senior member of the office (not Ms. Chant) said as much to me in a prior proceeding. But disagreement with relevant caselaw is not an excuse for ignoring it. The advocate’s approach should be to raise the issue and then explain why it is insufficient in the present circumstances. It is in this way that the balancing test contained in s. 486.2 can best be conducted: see R. v. QTD, supra, at para. 41.

[20] In summary on this point, a testimonial aid may or may not be appropriate in a given case. Even if appropriate, CCTV is not the only available testimonial aid. It is in the interests of justice for a court hearing such an application to be informed of all available options in order to ensure that access to justice is provided fairly to both complainants and accused.

[10] Examining the factors to be considered on this application, outlined in mandatory language at section 486.2(3) CCC, I would say this:

• the age of the witness – an adult;
• the witness’ disabilities – none that the Court has been made aware of;
• the nature of the offence – sexual and allegedly committed within the family by an adult against a child, though I know absolutely nothing else about the purported facts;
• the nature of any relationship between the witness and the accused – step-daughter and step-father at the material time;
• whether the witness needs the order for security – not that the Court has been told;
• whether the order is needed to protect the identity of a peace officer – not applicable;
• whether the order is needed to protect the witness’ identity – not applicable;
• society’s interest in encouraging the reporting of offences and the participation of victims in the criminal justice process – I am prepared to say that this probably weighs in favour of the application, as it likely does in every application for a testimonial aid that is brought in any court in any place in the country, although I note that this Court’s position on that is not supported by any evidence filed on the within application, or by any data or any study that I am aware of, but rather is more of a general statement on my part; and
• any other factor – none that either side urged the Court to consider, although I acknowledge Mr. Owoh’s submissions about this being a jury trial and the risk of “moral reasoning prejudice”, as he put it.

[11] The Crown’s burden to demonstrate, on balance, that CCTV would facilitate the complainant’s giving at trial of a full and candid account of the acts complained of has clearly not been met, nor is this Court persuaded on balance that the order sought would otherwise be in the interest of the proper administration of justice.

[12] In criminal proceedings, testimonial aids applications by the Crown are not “automatic”. If they were intended to be, section 486.2(2) CCC would have no reason to exist. Further, a section 486.2(2) CCC application, specifically, is not only not automatic but also is not a reverse-onus provision. There is no language in the subsection that suggests that there is a presumption that the order will be made. Further, there is no legislative provision, and no jurisprudence I might add, which would serve to fetter a judge’s discretion in any way, except that it would be an error for the judge to decide the application without regard for the relevant factors outlined at section 486.2(3) CCC.

[13] I would respectfully suggest that these facts be kept in mind for future applications of this sort.

Conlan J. Released: April 11, 2024