Ontario Superior Court of Justice

Court File No.: CR-22-598
Date: 2025-02-19

Between

His Majesty the King
Applicant
Counsel: M. Thomaidis

-and-

Theodore O’Leary
Respondent
Counsel: M. Moon and A. Djukic

Heard: February 19, 2025

Reasons on Crown Application Pursuant to s. 486.2(2)
Mandhane J.

Introduction

[1] The accused/Respondent is charged with failing to remain at the scene of an accident in which the victim died: Criminal Code, s. 320.16(3). I have been assigned to hear the trial, sitting alone without a jury.

[2] Lindsay Smith was a passenger in the Respondent’s car when he allegedly hit the victim. The Crown/Applicant relies on Ms. Smith’s evidence to prove that the Respondent hit the victim and then failed to stop at the scene of the accident.

[3] Ms. Smith and the Respondent were in an intimate partner relationship at the time of the accident. On September 23, 2023, the accused pleaded guilty to one count of assault against Ms. Smith. Having already served 60 days in pre-trial custody, he received a suspended sentence and was bound by a probation order for one year. The probation order prohibited the Respondent from communicating with Ms. Smith or being within 100 meters of her. It has since expired and there are currently no conditions restraining contact between the Respondent and Ms. Smith.

The Crown Application

[4] The Crown now brings an application pursuant to s. 486.2(2) seeking leave to have Ms. Smith give evidence via closed circuit television (CCTV). The Respondent opposes the Crown’s application; he says that Ms. Smith should testify in open court.

[5] In support of its application, the Crown adduces evidence from Alyssa Gill, a Victim Witness Services Worker with the court’s Victim Witness Assistance Program (VWAP). This type of evidence is widely considered acceptable on such an application; there is no requirement to file an affidavit from the proposed witness: R. v. Shammo, 2024 ONSC 2614, at para. 21. Ms. Gill states that Ms. Smith is “very anxious and nervous” about giving evidence, that the thought of seeing the Respondent is “triggering” and makes her emotional and uncomfortable, that she has ongoing safety concerns in relation to the Respondent because of the history of “abuse,” and that she would not be able to be candid with the Court because she is still intimidated by him. Ms. Gill says that Ms. Smith told her that testifying by CCTV would reduce her anxiety and allow her to stay focused while answering questions.

[6] The Crown also filed a transcript from the Respondent’s preliminary inquiry. During that proceeding, the Crown applied to have Ms. Smith’s videotaped statement to police entered for the truth of its contents pursuant to s. 540(7) of the Criminal Code. In allowing the Crown’s application, the preliminary inquiry judge described Ms. Smith’s testimony on the voir dire as “distraught,” and reasoned that she was a “typical recanting witness.”

[7] The Defence argues that Ms. Smith is no longer intimidated or afraid of the Respondent because she has contacted him since the date of incident. He relies on Ms. Smith’s police interview from September 2024 in which she admitted that she had been in contact with the Respondent, and an affidavit from the Respondent’s surety, Ms. Stephanie McLelland, wherein she indicates that Mr. O’Leary’s phone received an incoming call from Ms. Smith on January 27, 2025. Ms. Smith told police that she did not recall making such a call and said that it must have been a “mistake.”

[8] To decide the Application before me, I must answer the following questions:

• Would allowing Ms. Smith to testify by CCTV “facilitate the giving of a full and candid account by the witness of the acts complained of?”
• Would allowing Ms. Smith to testify by CCTV “otherwise be in the interests of justice”?

[9] The answer to both these questions is, yes. The Crown’s application is granted.

Analysis

[10] The test to allow a witness to testify by CCTV is whether doing so would “facilitate the giving of a full and candid account by the witness” or is “otherwise in the interest of the proper administration of justice”: s. 486.2(2). The factors that I am to consider are set out in s. 486.2(3) of the Criminal Code.

[11] The law surrounding the application of s. 486.2 is helpfully summarized by Leach J. in Shammo, at para. 21. The general rule is that capable adult witnesses are presumed to be able to give their evidence in a public courtroom: R. v. N.S., 2017 ONCJ 977 at para. 34.

[12] While applications under s. 486.2(2) are meant to be exceptional and not routine, “concerns about the manner of a witness providing testimony improperly swaying the trier of fact into improper sympathy towards a complainant or prejudice against an accused are eliminated in a judge alone trial”: Shoom, para. 21. I would add that this is particularly the case in the era of hybrid trials where witnesses regularly attend by Zoom on consent of both parties.

Would allowing Ms. Smith to testify by CCTV “facilitate the giving of a full and candid account by the witness of the acts complained of?”

[13] On the evidence before me, I am satisfied that allowing Ms. Smith to testify by CCTV will “facilitate the giving of a full and candid account” of the events at issue. While Ms. Smith is a capable adult and presumptively able to testify in open court, I find that the history of intimate partner violence between her and the Respondent, her difficulties testifying at the preliminary inquiry, and Ms. Gill’s evidence about Ms. Smith’s current emotional concerns, provide a proper foundation to make the order sought by the Crown.

[14] While this trial does not involve allegations of violence against Ms. Smith per se, her previous experiences of violence may be relevant to assessing her credibility and reliability, which will be a central issue at trial. It is anticipated that the defence will attack Ms. Smith’s credibility and reliability because her story has shifted over time. It will be important that Ms. Smith feel comfortable to explain her reasons for her evolving story, which may include her previous experiences of violence.

[15] Despite the Respondent’s submissions to the contrary, the Crown is not required to produce medical evidence to satisfy the requirements of s. 486.2(2): R. v. F.M., 2021 BCSC 1867, at para. 25. To the extent that the Respondent argues that Ms. Gill’s evidence is little more than a recitation of Ms. Smith’s “bald assertions,” I find that this ignores the fact that Ms. Gill is a professional witness who has no interest in the matter, and whose evidence is grounded in her experience working with countless victims. The Respondent did not cross-examine Ms. Gill and I am not prepared to discount the credibility or reliability of her evidence in the absence of any direct challenge to it.

[16] I specifically reject the Respondent’s argument that there is no basis upon which to conclude that Ms. Smith is intimidated by the Respondent because she has been in communication with him recently. First, there is no evidence that Ms. Smith and the Respondent have communicated since she reported to the police in September 2024. Moreover, even if she had been in contact with the Respondent, this is not determinative of whether she is intimidated by him. I would need further information and details about the communications and their nature to draw such an inference. Indeed, many victims of intimate partner violence will maintain contact with their abuser because they believe that doing so makes them safer.

Would allowing Ms. Smith to testify by CCTV “otherwise be in the interests of justice”?

[17] I also find that allowing Ms. Smith to testify via CCTV is in the interest of the proper administration of justice, namely, because it is consistent with the imperative of encouraging survivors of intimate partner violence to report offences committed by their abuser (whether they are the victim or not), and facilitating their participation in the criminal justice process.

[18] In 1993, in R. v. Levogiannis, [1993] 4 S.C.R. 475, Justice L’Heureux-Dubé discussed the policy rationale underlying the companion section to the one before me, s. 486.2(1). In finding that that section did not infringe the accused’s Charter rights, the Court found that the sections were enacted to enhance the truth-seeking functions of the Court by recognizing that a child abuse victim’s evidence may be facilitated if they are able to focus and give attention to their testimony rather than experience difficulties facing the accused.

[19] Given the modern recognition of intimate partner violence as an epidemic, I find that allowing Ms. Smith to testify by CCTV will enhance the truth-seeking function for the very same reasons articulated by Justice L’Heureux-Dubé. I certainly do not need medical or expert evidence to find that survivors of intimate partner violence may find it retraumatizing to testify in the presence of their abuser, and that being “triggered” might impact make it harder to focus on their testimony. In this regard, Ms. Smith’s anxiety and stress go beyond that which is normal for all victims in a criminal trial, because they are grounded in her past, recent violent experiences with the Respondent himself: Shoom, para. 43.

[20] The Crown’s Application is granted.

Mandhane J.
Released: February 19, 2025