Court File and Parties

COURT FILE NO.: CR-22-58-0000 DATE: 2024 10 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King C. Eastwood, for the Crown

- and -

WS L. Riva, for the Accused

HEARD: October 17, 2024

RULING ON APPLICATION UNDER S. 714.1 OF THE CRIMINAL CODE

C. Chang J.

1The Crown brings this application for an order under s. 714.1 of the Criminal Code, R.S.C., 1985, c. C-46, for an order that the complainant, LS, give her evidence at trial by videoconference from Bracebridge, Ontario. It submits that, considering the location of LS’s residence, her other personal circumstances, and the applicable arrangements that will be made by the Crown, it would be appropriate to make the requested order.

2The defence opposes the application. It disputes none of: LS’s reported physical or mental circumstances (including an extensive medical history), the reported distance between her residence and the Milton courthouse, or the reported challenges associated with her physical attendance at the courthouse. However, the defence submits that LS’s personal circumstances as they relate to her being an alleged victim of sexual assault and her physical and mental conditions have already been addressed by the February 7, 2023 order of Mills J. permitting LS to testify by CCTV with a support person. It also submits that permitting LS to testify by videoconference from Bracebridge would compromise the accused’s right to a fair trial by impairing the defence’s ability to properly cross-examine her. The defence further submits that the proposed location from which LS would testify is unsuitable because, unlike a location in the Milton courthouse, the Bracebridge location would insufficiently safeguard LS’s proper and truthful testimony. The defence proffered no other grounds on which it says the Crown’s application should be denied.

3For the following reasons, I grant the Crown’s application, but subject to the terms set out at the end of this ruling.

Factual Background

4The accused, WS, is charged with various offences involving the alleged assault and sexual assault of LS and her children. WS allegedly committed those offences between October 1, 1978 and March 31, 1984.

5LS is WS’s former spouse. She is now 74 years old and suffers from various physical and mental illnesses, including cardiovascular disease, brain injury, and anxiety. She requires a walker for mobility. LS’s residence is in or near Bracebridge and is approximately two and a half hours’ drive from the Milton courthouse. She is unable to drive herself to or otherwise attend unassisted at the courthouse.

6During the preliminary hearing, LS testified remotely from the Victim/Witness Assistance Program office in Bracebridge. On February 7, 2023, Mills J. ordered that LS may testify at trial by CCTV with a support person.

7The trial by judge and jury is scheduled to proceed over ten days next month.

Issues

8The sole issue to be decided on this application is, having regard to all of the circumstances, whether it would be appropriate to order that LS give her trial evidence by videoconference from the Bracebridge VWAP office.

Analysis

9In my view, it would be appropriate to order that LS give her trial evidence by videoconference from the Bracebridge VWAP office, but on terms.

10Section 714.1 of the Criminal Code provides that the court may order a witness in Canada give her/his evidence by videoconference if, having regard to all of the circumstances, it is of the opinion that it would be appropriate. A non-exhaustive list of the circumstances to which regard should be given is set out in ss. 714.1 (a) to (g) and include, among other things, the location and personal circumstances of the witness, the nature of the witness’s anticipated evidence, the suitability of the location from which the witness will give evidence, and the accused’s right to a fair and public hearing.

11As outlined above, the defence’s only issue with the requested order is the impact that the making of it will have on WS’s right to a fair hearing. The defence argues that most of LS’s personal circumstances have already been accommodated by the February 7, 2023 order of Mills J. permitting LS to testify by CCTV with a support person. The defence also argues that its inability to put items of physical evidence to LS during her cross-examination will inhibit its ability to properly conduct that cross-examination. It further argues that the Bracebridge VWAP office is not a suitable location because it lacks sufficient safeguards to ensure that LS gives her evidence properly and truthfully.

12I do not accept the defence’s arguments.

13As it relates to the factors that were relevant to Mills J. making the CCTV and support person orders, I am not persuaded that I am precluded from considering them under s. 714.1 or that doing so will compromise WS’s right to a fair trial. In my view, the factors that Mills J. considered, including the nature of the alleged offences, LS’s age, LS’s mental and physical disabilities, and the nature of the relationship between LS and WS, are also relevant considerations under s. 714.1 and weigh in favour of the requested order.

14In addition, as outlined above, the defence does not dispute the reported two-and-a-half-hour distance by car between the courthouse and LS’s residence, LS’s physical and mental conditions, or the challenges that those circumstances impose on her ability to attend the courthouse in person. These factors also weigh in favour of the requested order.

15I am also not persuaded that the making of the requested order would adversely impact WS’s right to a fair and public hearing by limiting the defence’s ability to properly cross-examine LS or by permitting mischief in the giving of her evidence.

16Respecting the issue of cross-examination, the defence candidly stated that it was refusing to provide any details or particulars about what physical items that it requires be put directly to LS to ensure a proper cross-examination. The defence is not required to disclose any aspect of its strategy before implementing it. However, because of that refusal, it is impossible to assess how the claimed inability to directly put physical items to LS would impact the defence’s cross-examination of her and, by extension, WS’s right to a fair trial. In addition, the Crown advises that it will arrange for delivery to LS in Bracebridge of any physical items that the defence requires be put directly to her during her cross-examination.

17In my view, any legitimate concerns about the defence’s ability to properly conduct its cross-examination of LS would be sufficiently alleviated by a combination of the arrangements proposed by the Crown for delivery of the applicable items to LS in Bracebridge and appropriate directions from the trial judge.

18Respecting the suitability of the Bracebridge VWAP office, I am not persuaded that the giving of LS’s evidence from that location poses the risk of mischief alleged by the defence. I do not share the defence’s dim view of VWAP workers or their possible interference with the proper and truthful giving of LS’s evidence. They are professionals on whom this court often relies to assist in the administration of justice by facilitating the proper and truthful giving of evidence by complainants and witnesses in criminal cases. In addition, the Crown advises that it will arrange for a police officer to be posted outside the room at the Bracebridge VWAP office from which LS will give her testimony.

19In my view, any legitimate concerns about the risk of mischief in LS’s trial evidence would be sufficiently alleviated by a combination of the posting of a police officer outside the room from which she will testify and appropriate directions from the trial judge.

Conclusion

20For the reasons set out above and having regard to all of the circumstances, I am satisfied that an order for LS to give her trial evidence by videoconference from the Bracebridge VWAP office should issue, but subject to the terms set out below.

Disposition

21I therefore order that LS give her trial evidence by videoconference from the Bracebridge VWAP office, which order is subject to the following terms:

a. prior to the commencement of trial, the Crown shall ensure that arrangements are made such that physical items can be put directly to LS at the Bracebridge VWAP office during her cross-examination in accordance with the directions of the trial judge respecting, without limitation, timing, confidentiality, handling and transportation;

b. prior to the commencement of trial, the Crown shall ensure that a police officer is posted outside the room at the Bracebridge VWAP office from which LS will give her trial evidence, which posting shall be in accordance with the directions of the trial judge; and

c. nothing set out above shall limit the trial judge’s discretion respecting the trial process.

C. Chang J.