Information

Information Nos. 23-11402884, 22-11402107, 2025 ONSC 2055
Ontario Superior Court of Justice

Parties

His Majesty the King
v.
A.O.

Ruling on CCTV

Heard before Justice K. McVey
On Friday, January 17, 2025, at Ottawa, Ontario

Appearances

• L. Little, Counsel for the Provincial Crown
• M. Salih, Counsel for A.O.

Introduction

A.O. stands charged with sexual assault and assault by choking, contrary to s. 271 and s. 267(c) of the Criminal Code. A jury trial is scheduled to commence on March 17, 2025. The Crown seeks an order permitting the complainant to testify via CCTV, pursuant to s. 486.2(2) of the Criminal Code.

A.O. is opposed to the order sought, though if use of a testimonial aid is permitted, A.O. would prefer that the complainant testify via CCTV rather than from behind a screen.

On a second indictment, A.O. faces charges of breaching an undertaking, distribution of an intimate image without consent, and criminal harassment, all in relation to the same complainant.

Although this application is brought solely in respect of the trial commencing in March 2025, the allegations raised in the second indictment provide additional context in terms of setting out the entirety of the purported relationship between the complainant and A.O., and the complainant’s asserted anxiety about testifying in A.O.’s presence.

The complainant will be 25 years of age at the time of her anticipated evidence. She was in an intimate relationship with A.O. between January 2020 and March of 2020. The two kept in touch after they stopped dating.

Background

The complainant alleges that A.O. sexually assaulted her in September 2020 and apologized the following day via text message. The complainant asked for space and advised A.O. that she did not wish to speak with him.

Not long after, in early October 2020, during a heated text-based exchange, A.O. purportedly sent the complainant a nude picture of herself. The complainant had sent A.O. the photo earlier in their relationship via Snapchat, but she was unaware that he had somehow secured a permanent copy.

The complainant advised campus security of what had allegedly transpired with A.O. This resulted in A.O. signing a cease-and-desist letter wherein he agreed to refrain from communicating with the complainant. There was no further communication between the two until the following spring when, in June 2021, A.O. allegedly reached out to the complainant via Instagram, apologizing for his actions the year before. The complainant blocked him.

A.O. purportedly created a new Instagram account and messaged the complainant a second time. In the interim, the complainant had made a report to the Ottawa Police Service. The police interviewed the complainant on July 3rd, 2021. While the investigation was ongoing, A.O. purportedly messaged the complainant a third time on October 15th, 2021, from yet another Instagram account.

A.O. was arrested for sexual assault and harassment on October 22nd, 2021, and released on an undertaking. A week after, he allegedly sent the complainant several text messages that were somewhat apologetic in nature, wherein he complained that she was trying to send him to jail despite all the positive things he had done for her. As a result of those communications, A.O. was arrested for a breach of undertaking and re-released a second time.

Finally, approximately a year and a half later on March 18th, 2023, A.O. purportedly posted derogatory comments about the complainant on his Instagram account. A mutual friend saw the post and advised the complainant, who then viewed it for herself. The complainant has not seen A.O. since the alleged sexual assault in September 2020.

The Application for CCTV Testimony

The investigating officer gave evidence on this application. She testified that on December 10th, 2024, she spoke with the complainant via phone about the upcoming trial. The officer explained the various ways a witness may give evidence, subject to judicial approval, including through the use of CCTV. During that conversation, the complainant advised the officer that she wishes to either testify via CCTV or from behind a screen.

The complainant is concerned that seeing A.O. for the first time during her evidence will impact her ability to express herself properly, and she may have a hard time getting the words out. The complainant advised that having to testify in front of a jury aggravates those concerns.

Given that the complainant is an adult, an order of this kind is not presumptive in nature. Nonetheless, I may grant the accommodation where I am satisfied that doing so would facilitate the complainant in giving a full and candid account of her evidence, or that it would otherwise be in the interests of the proper administration of justice.

Legislative Context

In 2015, Parliament amended the Criminal Code to make orders of this kind more accessible. The Crown must no longer establish that the order is “necessary”. The current wording of the provision permits a judge to grant the order where it would “facilitate” the giving of a full and candid account.

The new provision also expands the factors to be considered when determining whether the order is appropriate. Specifically, I may consider the age of the witness, the witness’s mental or physical disabilities, if any, the nature of the offence, the nature of the relationship between the witness and the accused, society’s interest in encouraging the reporting of offences, and the participation of victims and witnesses in the criminal justice process, and any other factor I consider relevant.

Analysis

For the following reasons, I will permit the complainant to testify via CCTV. The complainant is relatively young, though this is not a particularly significant factor in the analysis. The alleged offences are serious and sexual in nature and include assault by choking.

The Crown has alleged that A.O. has continued to commit criminal offences against the complainant since the sexual assault allegedly took place, and as recently as March 2023, despite repeated police intervention. It goes without saying that A.O. is presumed innocent in these proceedings. Nonetheless, I am permitted to -- and indeed must -- consider the nature of the offences alleged.

The defence argued that the concerns expressed by the complainant to the investigating officer amount to no more than “bare assertions”. I disagree. First, expert evidence in the form of medical reports or records is not required in an application of this kind. Second, I am not sure how much additional information the complainant could have provided. No one has a crystal ball. No one can predict with a hundred percent certainty how they will react in each situation.

The complainant expressed what I view to be a reasonably held concern that seeing A.O. for the first time given what allegedly transpired between the two may impact her ability to express herself. Further, I accept that her concerns in this respect are aggravated by the matter proceeding before a jury.

The defence also highlighted that there is no evidence that other support mechanisms were canvassed with the complainant, such as a support person or a support dog. The argument being that if additional supports were discussed with the complainant, perhaps an order for CCTV would no longer be required.

In my view, accepting this argument runs the risk of returning to a necessity standard. That is no longer the test set out in s. 486.2(2). The Crown is not required to show that other measures cannot satisfactorily address the concern, rendering CCTV “necessary”.

To be clear, the issue before me is not whether the complainant is capable of giving evidence without this accommodation. She may very well be capable of giving evidence without the assistance of CCTV. The question for me is whether there is a basis to find that CCTV will facilitate her in doing so. I am satisfied there is.

With that said, I appreciate that I must balance all the interests involved, including the accused’s right to make full answer and defence. In my view, however, any concerns regarding prejudice can be addressed through an appropriate jury instruction, including a warning that no adverse inference can be drawn from the fact of a witness testifying outside the courtroom.

Further, our courts are well-equipped for CCTV such that the jury will have a sufficient opportunity to observe the complainant for the purposes of assessing her credibility. The video is clear and the sound of high quality.

Conclusion

In summary, there is an evidentiary record before me upon which I am satisfied that testifying via CCTV will facilitate the complainant in giving a full and candid account of her evidence. The Crown’s application is granted.

Ruling Ends

...COURT ADJOURNED

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Elizabeth Logan, certify that this document is a true and accurate transcription produced to the best of my skills and ability of the recording of R. v. A.O. in the Ontario Superior Court of Justice held at Ottawa, Ontario, taken from Recording No 0411-24-20250117, which has been certified in Form 1 by M. Bialek.

January 21, 2025