Court File and Parties
COURT FILE NO.: CR-22-70000465 DATE: 20241115
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – JORGE ALBERTO ESCALANTE, Respondent
Counsel: Amandeep Nagra, for the Crown Igor Vilkhov, for the Respondent
HEARD: November 12, 2024
B. P. O’Marra J.
Ruling on an Application to Permit a Witness to Testify from Outside the Courtroom Pursuant to S. 486.2(2) of the Criminal Code
Overview
[1] The respondent is charged with sexual assault and sexual interference contrary to sections 271 and 151 respectively of the Criminal Code. The complainant was nine years old at the time of the alleged offences in 2010. She reported the alleged offences to the police in August 2020. She is now 23 years old.
[2] The Crown seeks an order to permit the complainant to testify by way of CCTV or other device from outside the courtroom. The respondent opposes the application.
[3] On November 12, 2024, I allowed the application. These are my reasons.
The Allegations
[4] A very brief summary of the allegations will suffice for the purposes of this ruling.
[5] The respondent was the complainant’s stepfather at the time of the alleged offences in 2010. The complainant alleges that the respondent put his hand under her underwear and touched her vagina as she lay on her bed. They were the only two persons in the room at the time.
Evidence in Support of the Application
[6] The Crown filed an affidavit sworn by the officer in charge of this case, Detective Constable Kathryn Ferguson of the Toronto Police Service. On October 24, 2024, in preparation for this trial she contacted the complainant who advised her as follows:
- She is fearful of testifying in court and fearful of seeing the respondent;
- She is concerned that her testimony would be affected by her nervousness and fears of seeing the respondent. It would have a negative impact on her emotional and mental state;
- She asked if she could testify from outside the courtroom using CCTV to facilitate the giving of her testimony.
The Law
[7] The Criminal Code in ss. 486.2(2) – (6) sets out the procedure and authority on such an application:
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 administrations 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), 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 if 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 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).
[8] 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.
[9] The use of testimonial aids such as video-linked testimony may well promote society’s interest in getting at the truth. It does not undermine the principles of fundamental justice nor impinge on the Charter-protected right to a fair trial: R. v. Evans, 2017 ONSC 3464 at para. 21.
[10] The Supreme Court of Canada has recognized that “testifying in a sexual assault case can be traumatizing and harmful to complainants”: R. v. R. V. 2019 SCC 41 at para. 33.
Analysis
[11] The complainant will be asked questions in a public courtroom related to an alleged sexual touching by her stepfather when she was nine years old. She is understandably anxious, fearful and nervous about testifying but is prepared to do so. It would facilitate the presentation of her evidence for her to testify by CCTV. This process will not inhibit the testing of her evidence in cross examination. She will be visible to counsel and the accused throughout her testimony.
[12] I am satisfied that the statutory preconditions for her testimony to be received by CCTV have been met on this application.
The Result
[13] The application is allowed.