Reasons for Decision on Crown s. 714.2 Application for Zoom Testimony

Court File No.: CR-24-50000053-0000
Date: 2025-04-14
Ontario Superior Court of Justice (Toronto Region)

Between:
His Majesty the King
and
Filip Grkovski, Defendant

Appearances:

• Foreman and Howard, for the Crown
• Alan D. Gold and Ellen C. Williams, for the Defendant

Heard: March 17, 2025

Released: April 14, 2025

Judge: P.T. Sugunasiri

Overview

[1] It is alleged that just before midnight on May 31, 2022, a passenger speedboat operated by Mr. Grkovski and carrying ten passengers crashed into a rock bed near the Outer Harbour Marina, capsizing the boat. In the early hours of June 1, 2022, the Toronto Police Marine Unit and Toronto Fire rescued eight passengers. Later that day, they recovered the bodies of the two remaining passengers. Mr. Grkovski is charged with two counts of criminal negligence causing death, two counts of criminal negligence causing bodily harm, two counts of operating a conveyance while impaired causing death, and two counts of operating a conveyance while impaired causing bodily harm. The judge-alone trial commenced today.

[2] The Crown intends to call Ms. Kelly Zeng as a witness. She was one of the passengers on the boat. The defence theory is that Mr. Grkovski was not driving the boat when it crashed. The defence anticipates that Ms. Zeng’s testimony will support this theory. The Crown has not subpoenaed Ms. Zeng and she is now somewhere in New York. On March 12, 2025, the date of her departure, she had a short meeting with Crown counsel and the officer in charge (OIC) indicating that she could find a place to testify remotely. Her return date to Toronto is unknown and she had not responded to the OIC’s text messages since March 12, 2025 at the time of this application.

[3] The Crown applied pursuant to s. 714.2 of the Criminal Code to have Ms. Zeng testify by Zoom once they locate her. Section 714.2 of the Code requires a court to permit evidence via videoconference for witnesses outside Canada unless Mr. Grkovski can prove on a balance of probabilities that doing so is contrary to the principles of fundamental justice: see for example R. v. Schertzer, 2010 ONSC 6686.

[4] I dismissed the Crown’s application orally.

[5] These are my written reasons that follow. They address the defence argument that it is contrary to the principles of fundamental justice for the Crown to use s. 714.2 to rectify a situation caused by its failure to subpoena a known domestic witness before she left Canada. On the record before me, I find it is contrary to the principles of fundamental justice to allow the Crown’s application. I follow the reasoning of Justice Gomery in R. v. C.M.C., 2023 BCSC 463.

Analysis

Evidence Supporting the Crown’s Application

[6] The Crown filed as Application Exhibit 1 a Will Say Statement from DC Prosper who is the officer in charge of this case. In that statement, DC Prosper sets out the following timeline:

a. On February 14, 2024, DC Prosper received an email from the Crown’s office indicating that this trial would commence on March 17, 2025;
b. On December 19, 2024, DC Prosper received an email from the Crown asking for the names and addresses of the witnesses required for court so that subpoenas could be prepared;
c. On December 22, 2024, DC Prosper responded to the email with the requested information, including that of Ms. Zeng;
d. On January 15, 2025, DC Prosper received an email advising him that subpoenas were completed and DC Prosper asked that those subpoenas be sent out for service;
e. On February 24, 2025, DC Prosper reached out to Ms. Zeng to see if she had received a subpoena yet. Ms. Zeng responded that she had not. When advised of the court dates, she stated that she would be out of the country.
f. After making inquiries of the Crown’s office, DC Prosper found out that not all subpoenas had been completed;
g. On March 12, 2025 at noon, DC Prosper, Assistant Crown Attorney Howard, Assistant Crown Attorney Foreman, and a member of the Victim Witness Assistance Program had a Zoom meeting with Ms. Zeng;
h. It was a short meeting because she was at the hair salon getting her hair done. She advised that she was leaving that day and had no expected return date;
i. On March 13, 14 and 16, 2025 DC Prosper texted Ms. Zeng but had not heard back from her at the time of the application.

[7] In cross-examination, Mr. Gold established that during the March 12, 2025 Zoom meeting Ms. Zeng indicated that she could find a private place to testify by Zoom. No one asked about her anticipated location, its suitability, the reliability of the internet connection or which salon she was at to serve her immediately with the subpoena before she departed. No one asked her about the nature of her trip, whether it was to New York City or New York state, or whether she could come back to Toronto to testify.

The Defence’s Heavy Reliance on R. v. C.M.C.

[8] The defence urges that the Crown cannot benefit from its own negligence in applying to have Ms. Zeng testify remotely. They argue that how the witness came to be out of the country should form part of my analysis of whether Ms. Zeng’s remote testimony would be contrary to the principles of fundamental justice.

[9] Justice Gomery explored this very issue in C.M.C.. In that case, Mr. C was charged with offences alleged to have occurred during the parties’ seven-year marriage. They married in 2014 and Ms. J moved to Indonesia in 2021. At the time of trial, Ms. J was still in Indonesia but hoped to return to Canada “as soon as [she could] resolve this”. Ms. J was the Crown’s only witness. The Crown applied to have her testify remotely pursuant to s. 714.2 of the Criminal Code. In Justice Gomery’s view, the ambiguity as to whether Ms. J was willing to come to Canada to testify led to the question of whether there are circumstances in which a failure by the Crown to bring a willing witness to Canada breaches the principles of fundamental justice: C.M.C., at para. 15. After an analysis of the meaning of “principles of fundamental justice”, and the legislative history and purpose of s. 714.2, Justice Gomery concluded that it was contrary to the principles of fundamental justice to allow the application.

[10] In a nutshell, the purpose of s. 714.2 when enacted in 1999 was to provide a more efficient way to obtain evidence from witnesses outside of Canada who could not be compelled to testify in person. The bulk of the case law allowing videoconferencing is about witnesses who have moved to other countries from Canada – not cases where a Canadian has left the country for a brief period for business or pleasure. See for example R. v. Al-Enzi, 2017 ONSC 304; R. v. Nguyen, 2015 SKQB 382; Schertzer; and R. v. Turner, 2002 BCSC 1135.

[11] I agree with the defence that the Crown had ample opportunity to subpoena Ms. Zeng while she was still in Canada. The delay in sending her a subpoena led to the current situation. The Crown argues that while its conduct has some relevance to the analysis under s. 714.2, its failure to subpoena Ms. Zeng does not rise to the level of a breach of the principles of fundamental justice. The Crown states several times that there was no prejudice to Mr. Grkovski in having her testify remotely.

[12] Several well-established propositions flow when considering what the principles of fundamental justice in s. 714.2 are:

a. Mr. Grkovski has a right to a fair trial and to make full answer and defence, but not a right to have the most favourable procedure that could possibly be imagined: Schertzer, at paras. 35-36, citing R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 361-62; and
b. A fair trial does not necessarily require the ability for the accused to confront a witness in person: Schertzer, at para. 37, citing R. v. Levogiannis, 85 C.C.C. (3d) 327. See also R. v. N.S., 2010 ONCA 670, para 53.

[13] That said, trial fairness must be considered not only from the accused’s point of view, but also through the eyes of the community and in light of broader societal concerns: R. v. Mills, para 72; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603.

[14] I agree with Justice Gomery in C.M.C., at para. 35 that broader societal concerns include that the contest between the Crown and the accused be a fair fight in light of the immense resources that the Crown can bring to bear. Fundamental justice includes fairness in pre-trial procedures as well as at the trial itself.

[15] In sum, it is not only prejudice to Mr. Grkovski that I consider. It is prejudice to the system itself, including the Crown’s ability to call its case. Despite the technological advances made during the pandemic and the availability of Zoom as a platform for witnesses to testify remotely, remote testimony in criminal cases is still the exception and not the rule (s. 715.21 of the Code). The purpose of the Code’s audio and videoconference provisions is to serve the proper administration of justice, including ensuring fair and efficient proceedings, and enhancing access to justice (s. 715.22 of the Code).

[16] In the circumstances of this case, the Crown was the author of its own misfortune in failing to subpoena sooner. It is contrary to the principles of fundamental justice for the Crown to jump to videoconferencing to address that failure without first exploring how to bring Ms. Zeng to court in person, including finding out if she is willing to come. If she is in New York City, that is a one-hour plane ride that may well be feasible.

Conclusion

[17] Based on the record before me, I dismissed the Crown’s application without prejudice to the Crown renewing its application once it has more information about whether Ms. Zeng can attend in person.

P.T. Sugunasiri

Released: April 14, 2025