COURT FILE NO.: CR-21-10000391 DATE: 20240913 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – D.A.L. Respondent

Counsel: Monica Gharabaway, for the Applicant Madalyn Bavaro, for the Respondent

HEARD: September 9, 2024

RULING ON THE CROWN’S APPLICATION REGARDING TESTIMONIAL AIDS

(Subject to a publication ban that applies to any information that might identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

VERMETTE J.

[1] The Respondent, D.A.L., is charged with twelve offences, including human trafficking and sexual services offences; assault; choking; uttering a threat to cause death; administering a noxious thing; using an imitation firearm while committing an indictable offence; and theft. The offences are alleged to have occurred between February 1, 2018 and March 7, 2018. The complainant was 21 years old at the time of the alleged offences. She is now 28 years old.

[2] The Applicant seeks an order permitting the complainant to testify via closed-circuit television (“CCTV”) pursuant to subsection 486.2(2) of the Criminal Code. The Applicant also seeks an order allowing the complainant to testify in the presence of and close to a support person pursuant to subsection 486.1(2) of the Criminal Code. [^1]

[3] The Respondent opposes the request that the complainant be allowed to testify via CCTV. He consents to the complainant testifying with her support person seated in the body of the courtroom.

[4] On September 11, 2024, I granted the Application with reasons to follow. The following are my reasons.

A. Evidence on the Application

[5] The only evidence filed by the Applicant in support of its position is an affidavit of Detective Constable (“DC”) Dana Reitsma and a transcript of the video-recorded interview of the complainant (“Complainant’s Statement”).

[6] DC Reitsma’s affidavit evidence includes the following:

a. During the preliminary hearing in November 2020, she observed how testifying physically affected the complainant. The complainant appeared anxious, overwhelmed and distressed. The ability to use CCTV – which was used on consent at the preliminary hearing – “tremendously helped the complainant give her testimony to the best of her ability.” b. The complainant “suffers with mental health issues as well as past drug addictions.” c. The complainant has stated that she is very fearful of the Respondent and that seeing him in the courtroom would affect her ability to provide testimony. d. DC Reitsma informed the complainant of available testimonial aids that could assist her in easing her anxiety and stress while giving her evidence in court, as was provided during the preliminary hearing. The complainant advised that she would prefer to testify virtually by the use of CCTV, and that “this would be beneficial to her to provide proper and candid testimony.”

[7] I note that at the time of the preliminary hearing, the Respondent had a co-accused, S.H. Mr. H. pleaded guilty after the preliminary hearing. He was alleged to have trafficked the complainant for approximately a year and to have been physically violent with her.

[8] The Complainant’s Statement is lengthy (approximately 200 pages) and deals with the allegations against both the Respondent and Mr. H. In addition, the complainant stated, among other things, that she cared for the Respondent, she regularly slept at his condo, they had consensual sex, she did a lot of his online homework for him, she cooked dinner for him, he tattooed his nickname on her body, and he gave her drugs. In the Complainant’s Statement, the complainant acknowledges that she had drug and alcohol addiction issues at the relevant time.

B. Relevant statutory provisions

[9] Subsection 486.2(2) of the Criminal Code reads as follows:

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.

[10] Subsection 486.2(3) provides that in determining whether to make an order under subsection 486.2(2), the court shall consider the following factors:

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 the 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 court considers relevant. [^2]

[11] Subsection 486.1(2) of the Criminal Code reads as follows:

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.

[12] Subsection 486.1(3) provides that in determining whether to make an order under subsection 486.1(2), the court shall consider certain factors, which are the same factors as the factors listed in paragraph 10 above.

C. POSITIONS OF THE PARTIES

1. Position of the Applicant

[13] The Applicant’s position is that granting the Application would facilitate the complainant’s ability to provide a full and candid account and would otherwise be in the interest of the proper administration of justice.

[14] The Applicant states that courts have increasingly recognized the difficulties faced by complainants in sexual violence and human trafficking prosecutions. The Applicant points out that the Supreme Court of Canada has directed that the criminal justice system needs to do better in relation to its efforts to combat sexual violence against women and to avoid revictimizing complainants during criminal proceedings.

[15] The Applicant submits that accommodating complainants with testimonial aids, when doing so will facilitate the giving of a full and candid account, is an important step towards encouraging the reporting of sexual offences. The Applicant refers to cases that found that it would be rare for an application under subsection 486.2(2) to be declined for a complainant in a sexual violence case.

[16] The Applicant notes that the evidence for an application for testimonial aids need not take any particular form, and that evidence from the complainant is not necessary. The Applicant states that it is sufficient that the evidence simply provide a basis for the determination that the proposed testimonial aid would facilitate the giving of a full and candid account of the acts complained of, or is otherwise in the interest of the proper administration of justice.

[17] The Applicant argues that the latest amendment to subsection 486.2(2) in 2015 lowered the threshold for an order under that provision when the witness is over 18 years old and does not have a mental or physical disability.

[18] The Applicant submits that the right of an accused to make full answer and defence does not include the right of an accused person to see the witness face-to-face in the courtroom during the witness’ testimony. The Applicant states that the elements of confrontation are still present when a witness testifies via CCTV, and notes that the accused is entitled to a fair hearing, not the most favourable procedures that could be possibly imagined. The Applicant argues that there is no basis for the allegation that cross-examination will be hindered in this case, and refers to the experience gained by the Court and counsel during the COVID-19 pandemic.

[19] The Applicant states that instructions regarding the use of CCTV are routinely given to juries, and juries are trusted to follow instructions. The Applicant points out that, as a result of the COVID-19 pandemic, members of the jury would be familiar with the use of videoconferencing and similar technology.

[20] The Applicant submits that all the relevant factors in subsection 486.2(3) favour permitting the complainant to testify via CCTV in the presence of her support person. Among other things, the Applicant points out that the prospect of seeing the Respondent at trial has caused anxiety to the complainant, and that there was a clear power imbalance between the Respondent and the complainant surrounding the offences. The crux of the allegations involves exploitation and physical violence. With respect to the factor of the nature of the relationship between the complainant and the Respondent, the Applicant argues that the Respondent preyed on the complainant’s vulnerabilities and drug addiction to keep her working in the sex trade. The Applicant states that the case law supports the position that the factor of society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system is engaged in prosecutions involving sexual violence and human trafficking. The Applicant notes that the Respondent’s former co-accused has pleaded guilty and submits that the complainant is a human trafficking survivor who has suffered trauma.

[21] The Applicant states that the complainant’s proposed support person – who is with Safe Hope Homes, an organization that provides support and resources to human trafficking survivors – would not have any involvement in the complainant’s testimony. The Applicant notes that the Court can order the witness and the support person not to communicate with each other during the witness’ testimony pursuant to subsection 486.1(5) of the Criminal Code.

2. Position of the Respondent

[22] The Respondent argues that it is a longstanding legal principle that the accused has the right to face their accuser. He concedes that this right is not absolute, but submits that it is only displaced where the Crown establishes that testifying outside the courtroom via CCTV will facilitate the giving of a full and candid account of the allegations or would otherwise be in the interest of the proper administration of justice.

[23] The Respondent states that the onus is on the Crown to establish an evidentiary basis for the making of an order under subsection 486.2(2). His position is that the Crown has failed to lay an evidentiary foundation sufficient to tip the scales in favour of granting the Application. The Respondent argues that the affidavit of DC Reitsma does not afford any evidence that the complainant would be unable to provide a full and candid account of the acts complained of if required to testify in the presence of the accused. He points out that DC Reitsma’s affidavit does not reference any specific diagnosis of a mental health concern, and submits that being anxious about testifying is not sufficient as it is a common experience for civilian witnesses.

[24] The Respondent notes that the observations made by DC Reitsma at the preliminary hearing were made almost four years ago, and they were made when the Respondent was co-accused with Mr. H., who has now pleaded guilty and will not be present in court will the complainant is testifying. The Respondent also notes that there was no dispute about the use of CCTV at the preliminary hearing and that the complainant has never tried to testify in a courtroom.

[25] The Respondent points out that most of the authorities cited by the Applicant involve sexual assault allegations. He argues that the principles arising from those authorities pertaining to protections afforded to sexual assault complainants have limited application to this case.

[26] The Respondent submits that the factors in subsection 486.2(3) do not weigh in favour of permitting the complainant to testify via CCTV. Among other things, he argues that the nature of the offence alone is not sufficient. The Respondent states that while the allegations against him are serious, they are much less severe than the allegations against his former co-accused, Mr. H. The Respondent points out that the alleged relationship between him and the complainant was not over a lengthy period of time. He also points out that there is no allegation that he has ever attempted to contact the complainant or to intimidate her in any form while he was on bail. The Respondent’s position is that the factor of the society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process does not tip the balance in favour of granting the order.

[27] The Respondent argues that the requested order would interfere with the proper administration of justice. He states that the outcome of this case is entirely dependent on the assessment of the complainant’s reliability and credibility. He submits that testimony via CCTV meaningfully hinders the effectiveness of cross-examination and that being physically present in the courtroom and having to face the accused, the judge and the jury is more likely to result in a full and candid account of the allegations.

[28] The Respondent states that the fact that he is being tried by a jury is an important consideration. He argues that he may be prejudiced by the jury’s more limited ability to assess the complainant’s credibility and by her testifying in a different manner than other witnesses. According to the Respondent, any explanation for the procedure, regardless of a caution, would lead to negative speculation about him.

[29] The Respondent relies on a number of cases in support of his position, including R. v. Calder, 2016 ONCJ 225 (“Calder”) and R. v. Q.T.D., 2023 ONSC 4628 (“Q.T.D.”).

D. DISCUSSION

1. Relevant legal principles with respect to subsection 486.2(2)

[30] Under subsection 486.2(2) of the Criminal Code, the onus to establish that an order should be made is on the Crown. The Crown must establish on a balance of probabilities that an order under subsection 486.2(2) will facilitate the giving of a full and candid account by the witness or will otherwise be in the interest of the proper administration of justice. Either is sufficient. See R. v. P.(K.), 2017 NLPC 10, at para. 24 (“P.(K.)”) and R. v. Webber, 2018 NSPC 308, at para. 113 (“Webber”). “Facilitate” means to make easier: see P.(K.) at paras. 25-26.

[31] Prior to July 22, 2015, subsection 486.2(2) required that the order be “necessary to obtain a full and candid account from the witness of the acts complained of.” The amended section has a lower threshold, i.e., that the order “would facilitate the giving of a full and candid account by the witness of the facts complained of.” This amendment indicates an intention to make testifying via CCTV a more commonplace occurrence. See R. v. Jimaleh, 2016 ONSC 6390, at para. 7 and P.(K.) at para. 27.

[32] In 1993, the Supreme Court of Canada ruled on the constitutionality of a section in the Criminal Code providing that a judge could allow a complainant under the age of 18 to testify behind a screen if the judge was of the opinion that the use of a screen was necessary to obtain a full and candid account of the acts complained of from the complainant: see R. v. Levogiannis, [1993] 4 S.C.R. 475 (“Levogiannis”). The Supreme Court of Canada concluded that this provision did not contravene the accused’s rights under the Canadian Charter of Rights and Freedoms.

[33] In Levogiannis, the Supreme Court of Canada made a number of statements and findings that are relevant to this case, even though the statutory provisions in issue are different. The relevant statements include the following:

a. “The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.” (p. 483) b. “[T]he recent trend in courts has been to remove barriers to the truth-seeking process”. (p. 487) c. “Parliament […] is free to enact or amend legislation in order to reflect its policies and priorities, taking into account societal values which it considers important at a given time. […] The only limit placed on Parliament is the obligation to respect the Charter rights of those affected by such legislation.” (pp. 487-488) d. “[R]ules of evidence and procedure have evolved through the years in an effort to accommodate the truth-seeking functions of the courts, while at the same time ensuring the fairness of the trial. The idea of removing an accused from the view of a complainant, however, is not new.” (p. 488) e. The absence of face-to-face confrontation does not infringe any principle of fundamental justice. (pp. 490-491) f. “[T]he evidence [in support of the application] need not take any particular form.” (pp. 492-493)

[34] The Supreme Court of Canada also addressed the argument that the use of a screen may make the accused appear guilty. This argument was rejected. The Supreme Court stated as follows at pp. 494-495:

According to the appellant, the use of a screen lends an air of credence to the witness’ testimony and, since the courtroom has been altered for the protection of the young complainant, the accused may appear guilty. In the case at bar, the appellant was tried before a judge sitting alone and, as a result, the issue of appearance to the jury is not relevant. Had a jury been present, however, I suggest that, properly informed, they would not have been swayed by the use of the screen. As Dickson C.J. said in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 692:

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. [Emphasis in original.]

In a similar vein, I suggest that one should assume that a jury will follow judicial instruction and will not be biased by the use of such a device. In fact, in contrast to the perspective raised by the appellant, it has been remarked that Crown prosecutors are reluctant to request the use of screens because they are concerned that the young complainant may not come across as credible or the child’s testimony may have less of an impact […]. The use of a screen could very well be held against a child complainant, who might be judged to be an unreliable witness, because she or he is unable to look the accused in the eye, rather than against the accused. If screens were used more regularly as part of the courtroom procedure, as recommended by the Family Court Clinic in London, these perceptions may well be totally eliminated. Finally, while it is true, as the appellant contends, that s. 486(2.1) of the Criminal Code, similar in this regard to most sections of the Code, does not contain prescribed jury instructions, such instructions are routinely given by judges and such a caution is no more a constitutional prerequisite with respect to this section than with respect to any other section of the Criminal Code. Such caution may not be necessary or, if it is, it will be a function of the circumstances of the case […].

[35] Consistent with the decision in Levogiannis, a number of cases have expressed the view that the right of confrontation is not affected by a witness testifying via CCTV: see P.(K.) at para. 31 and R. v. Hagras, 2019 ONCJ 300, at para. 13 (“Hagras”). The right of confrontation is simply the accused’s right to be present in court, to hear the case against them and to make answer and defence to it: see R. v. R.(M.E.), at paras. 28, 32. The right to make a full defence does not include the right for the accused to be in the physical presence of a witness: see R. v. Metcalfe, 2018 ONSC 4925, at para. 18 (“Metcalfe”) and R. v. A.E., 2017 ONSC 3464, at para. 21.

[36] Also consistent with the decision in Levogiannis, it has been repeatedly held that the evidence on an application under subsection 486.2(2) is not required to take any particular form. For instance, courts have granted applications under this provision based on the evidence of a victim support worker or a police officer familiar with the complainant and the circumstances of the case. It is not necessary for the complainant to testify on such an application: see, e.g., R. v. Clark, at para. 5 (“Clark”). As stated in Hagras at para. 12:

The evidence on the application must simply provide a reliable basis for the determination that the proposed testimonial aid would facilitate the giving of a full and candid account of the acts complained of, or is otherwise in the interest of the proper administration of justice.

2. Consideration of the relevant factors

[37] I now turn to the relevant factors listed in subsection 486.2(3) of the Criminal Code:

a. Age of the witness. The complainant was relatively young – 21 years old – at the time the offences were allegedly committed, but she is now 28 years old. In my view, this factor is neutral.

While it has been stated in some cases that an adult should generally be expected to testify in open court (see, e.g., Q.T.D. at para. 22), this kind of comment begs the question. Clearly, subsection 486.2(2) authorizes a judge to permit an adult to testify outside the courtroom. The relevant question is not whether the witness is an adult, but whether the test under subsection 486.2(2) is met, i.e., whether testifying outside the courtroom would facilitate the giving of a full and candid account by the adult witness of the acts complained of, or would otherwise be in the interest of the proper administration of justice.

b. The witness’ mental or physical disabilities, if any. I find that DC Reitsma’s evidence is too vague and general to allow this Court to conclude that the complainant has any mental disability. However, some of DC Reitsma’s evidence regarding the complainant’s mental health issues will be considered below in the “any other relevant factor” category.

c. The nature of the offence. In my view, this is a very important factor in this case that favours the granting of the requested order. A number of cases have recognized that certain charges, by their very nature, inherently require the complainant to address matters of a very intimate or personal nature, e.g., sexual activity. Such matters are more likely to entail for a complainant heightened feelings of discomfort, embarrassment, and traumatization, thereby making such matters more difficult to address in the presence of strangers and in the courtroom. See R. v. C.D., 2021 ONSC 6995, at para. 46 (“C.D.”). In addition, courts have acknowledged the fact that victims of sex trafficking are scared to come forward, are ashamed to have worked in the sex trade and are reluctant and embarrassed to speak about the details of this exploitation: see Webber at paras. 110, 118. In this case, the complainant will have to address matters that involve both sexual activity and sex work.

d. The nature of any relationship between the witness and the accused. This is another important factor in this case. Although the relationship between the Respondent and the complainant was over a relatively short period of time (i.e., just over a month), the relationship is alleged to have involved intimacy/sex, physical violence and exploitation. The nature of the relationship between the complainant and the Respondent as well as the nature of the offences give credence to the complainant’s statement that she is very fearful of the Respondent.

e. Whether the witness needs the order for their security or to protect them from intimidation or retaliation. There is no evidence before me that would support the conclusion that the complainant needs to be protected from intimidation or retaliation or that the order is needed for her security.

f. Society’s interest in encouraging the reporting of offences and the participation of victims and and witnesses in the criminal justice process. It has been recognized that knowing that a complainant or witness may be able to testify outside of the courtroom in appropriate circumstances can have the desired effect of encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process, particularly in sexual assault cases. See P.(K.) at para. 31 and C.D. at paras. 52-54. In my view, this also applies in human trafficking cases. As stated above, it has been recognized that victims of sex trafficking are scared to come forward, are ashamed to have worked in the sex trade and are reluctant and embarrassed to speak about the details of this exploitation: see Webber at paras. 110, 118. In light of the foregoing, I find that this factor favours the granting of the requested order. However, I only give limited weight to this factor as it is a general consideration that would apply in many cases and there is no evidence before me showing how this factor applies in this particular case.

g. Any other factor that the court considers relevant. Although I acknowledge DC Reistma’s statement in her affidavit that the complainant “suffers with mental health issue”, I cannot give much or any weight to this statement without more particularity regarding the mental health issues in question. While I accept that the complainant has suffered from drug addictions in the past, again, I cannot give much or any weight to this fact without more particularity as to what this concretely means in relation to her ability to testify fully and candidly in the courtroom.

I accept DC Reitsma’s evidence with respect to the preliminary hearing, including that the ability to use CCTV at the preliminary hearing greatly helped the complainant to give her testimony to the best of her ability. While the preliminary hearing took place almost four years ago, the statements made by the complainant to DC Reitsma more recently in relation to the trial show that she is experiencing anxiety and stress with respect to testifying in the courtroom in the presence of the Respondent at trial, and that she is very fearful of the Respondent.

I also note the complainant’s wishes with respect to the use of CCTV. While the complainant’s views are not determinative of whether the requested order should be granted, they are a factor. See R. v. Benjamin, 2018 ONSC 5070.

Defence counsel raised additional factors which, in my view, have no or limited relevance. They are discussed further below.

[38] As discussed above, the right of confrontation is not in issue in this case because that right is not affected by a witness testifying via CCTV.

[39] In my view, the fact that Mr. H. is no longer a co-accused does not affect the balancing of the relevant factors in this case. While the allegations against Mr. H. were arguably more serious than the allegations against the Respondent, this does not change the fact that the allegations against the Respondent are very serious, that the relationship between the Respondent and the complainant (as alleged by the complainant) was violent and exploitative, and that the complainant is fearful of the Respondent.

[40] I agree with the Crown that there is no basis for the allegation that cross-examination will be hindered in this case. There is no allegation or evidence that the cross-examination of the complainant was hindered at the preliminary hearing when she was testifying via CCTV. Further, it is now acknowledged that demeanour is of limited value when assessing the credibility of a witness. In any event, I am not satisfied that the court’s and the jury’s ability to observe the complainant’s demeanour at trial will be impeded if she testifies via CCTV. See Metcalfe at paras. 20-22. This conclusion is supported by this Court’s experience with witnesses testifying remotely during and since the COVID-19 pandemic.

[41] The Respondent also raised the risk of moral prejudice in relation to the jury. I note that in Q.T.D., a case relied upon by the Respondent, the court discussed the risk of moral prejudice at paras. 44-45. In my view, absent exceptional circumstances, the issue of moral prejudice has been conclusively decided in Levogiannis. As the Supreme Court of Canada clearly stated in that case, one should assume that the jury will follow judicial instructions on the issue of testimonial aids, which are routinely given. Further, as noted by the Supreme Court of Canada, there is a risk that the use of testimonial aids could be held against the witness instead of the accused. Consistent with this, the model instruction on this issue in Watt’s Manual of Criminal Jury Instructions (2023) not only instructs the jury not to use the fact that a witness testifies from outside the courtroom to help it to conclude that the accused is guilty of the offences charged, but also instructs the jury: (a) not to draw any inference of any kind from the use of CCTV; and (b) that the fact that a witness testifies from outside the courtroom has nothing to do with how much or little the jury may believe of or rely upon the evidence of the witness. See also Clark at para. 7. Thus, I do not agree that there is a risk of moral prejudice in this case.

[42] While it is true that many of the authorities relied upon by the Crown are sexual assault cases, it is my view that many of the principles set out in these cases with respect to the use of testimonial aids similarly apply to human trafficking/sexual services cases and other cases. The legal principles discussed above apply to this case, and many of them are of general application.

[43] I will now discuss two of the cases relied upon by the Respondent, Calder and Q.T.D. Both of these cases are distinguishable.

[44] Calder is a decision of the Ontario Court of Justice. In that case, the evidence before the court regarding the complainants’ concerns was based in large part on the possibility that the self-represented accused would cross-examine the complainants himself. This did not happen because counsel was appointed to conduct the cross-examinations of the complainants. The issue of the complainant’s cross-examination does not arise in the present case and is not part of the Crown’s case on this Application. I also note that the reported decision in Calder does not contain a lot of information about the facts of the case because the judge did not do a detailed analysis of the factors set out in subsection 486.2(3). Thus, the factual and evidentiary basis for an order in the present case is different than in Calder.

[45] Further, Calder has been criticized by a judge of this Court who stated that he was “not persuaded that R. v. Calder represents the current manner that s. 486.2(2) of the Code ought to be interpreted in all cases and, in particular, this case.” See C.D. at paras 34-39. I agree with this comment. In my view, the test applied in Calder is inconsistent with the low threshold set out in subsection 486.2(2), i.e., the order may be granted when it would facilitate the giving of a full and candid account by the witness of the acts complained of. I also disagree with the judge’s comments in Calder about judicial officers being able to “handle” upset witnesses. This would have been the case before the adoption of subsection 486.2(2) and its amendment. Despite the judges’ ability to “handle” witnesses, Parliament enacted subsection 486.2(2) and it must be applied in accordance with its wording in the absence of a constitutional challenge.

[46] I now turn to Q.T.D. Q.T.D. involved two counts of sexual assault, two counts of forcible confinement and one count of criminal harassment. The application under subsection 486.2(2) was dismissed in that case because, among other things, the court found that the application was premature (para. 46), and that the evidence in support of the Crown’s position was too vague, too general and too dated to be of assistance (para. 45).

[47] The factual differences between this case and Q.T.D. include, among other things: the fact that this Application is not premature; the fact that the complainant in this case testified at a preliminary hearing and the evidence before me includes observations of the complainant testifying at the preliminary hearing; and the nature of the relationship between the complainant and the accused.

[48] As noted above, there is some reference to moral prejudice in Q.T.D. (see paras. 44-45). For the reasons set out above, including the Supreme Court of Canada’s decision in Levogiannis, I do not accept the argument based on moral prejudice.

[49] I also note that the judge in Q.T.D. complained about the fact that the use of a screen was not discussed with the complainant. In the case before me, the Respondent has not indicated that he consented to the use of a screen. In addition, it has been found in a number of cases that in an application under subsection 486.2, the court has an obligation to consider the particular form of accommodation sought by the applicant and decide whether the statutory test is made out with respect to that particular form of accommodation. The court’s task is not to choose amongst the various forms of testimonial aids. It is only if the statutory test for the type of accommodation sought by the applicant is not made out that alternative forms of accommodation should be considered. See, e.g., R v Abdulkadir, 2022 ABQB 174, at para. 24 and R. v F.M., 2021 BCSC 1867, at paras. 14-17.

[50] Ultimately, the court’s decision under subsection 486.2(2) constitutes an exercise of discretion by the presiding judge in each case, based on the evidence before the court and the specific circumstances of the case: see C.D. at para. 39. The exercise of my discretion in this case leads to a different result than in Q.T.D. because of the different circumstances of the case before me.

[51] Having considered the factors above and the evidence before me, I conclude that allowing the complainant to testify via CCTV would facilitate the giving of a full and candid account by her of the acts complained of. While I agree with the Respondent that the evidence adduced by the Applicant is lacking in many respects, the evidence is sufficient to support the finding that the giving of a full and candid account of the events by the complainant would be made easier (i.e., facilitated) if she were to testify via CCTV. I rely particularly on the complainant’s experience at the preliminary hearing, her fear of the Respondent, the nature of their relationship in 2018, and the nature of the offences. I note that DC Reitsma’s evidence regarding how the complainant was physically affected at the preliminary hearing goes beyond the ”normal” stress experienced by civilian witnesses who testify in a courtroom.

[52] Having determined that permitting the complainant to testify via CCTV will facilitate the giving of a full and candid account by her of the acts complained of, I need not determine whether doing so would “otherwise be in the interest of the proper administration of justice”.

[53] As stated above, the Respondent consents to the complainant testifying with a support person seated in the body of the courtroom. Given that I have granted the Crown’s Application under subsection 486.2(2), the complainant will testify via CCTV, not in the courtroom. However, given the Respondent’s position with respect to the support person in the courtroom, I cannot see how he could object to the presence of a support person in the CCTV room if the support person is not visible on the screen, and the support person and the complainant are ordered not to communicate with each other while the complainant testifies. In any event, I am satisfied that the test under subsection 486.1(2) is met in this case. I note that the test under subsection 486.1(2) and the factors set out in subsection 486.1(3) are very similar to the test and factors set out in subsections 486.2(2) and (3), which are discussed above.

[54] In light of the foregoing, I am satisfied on a balance of probabilities that testifying outside the courtroom via CCTV and the presence of a support person will facilitate the giving of a full and candid account by the complainant of the acts complained of.

D. CONCLUSION

[55] The Application is granted.

[56] Pursuant to subsection 486.2(2) of the Criminal Code, the complainant is permitted to testify outside the courtroom via CCTV.

[57] Pursuant to subsection 486.1(2) of the Criminal Code, the complainant is permitted to testify in close proximity to a support person. However, the support person shall not be visible on the screen. I also order, pursuant to subsection 486.1(5), that the support person and the complainant are not to communicate with each other while the complainant testifies.

[58] The jury will be given the usual instructions regarding the use of testimonial aids. The proposed instructions will be discussed with counsel at the appropriate time.

Vermette J.

Released: September 13, 2024

[^1]: While the Applicant originally also sought an order allowing the complainant to testify in close proximity to a support dog and its handler, the request for this relief was abandoned at the hearing. [^2]: I have not listed the factors set out in subsections 486.2(3)(f) and (f.1) because they are irrelevant and inapplicable in this case.