CITATION: R. v. Al-Hajj, 2025 ONSC 2623
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Al-Hajj
BEFORE: Somji J.
COUNSEL: Anya Kortenaar for the Crown
Neil Weinstein for Mr. Al-Hajj
HEARD: April 24, 2025
DECISION: Oral decision rendered April 24, 2025
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
ruling on application for s.L. to testify by videoconfernce
from outside of canada
1Khalid Al-Hajj is charged with human trafficking and other related offences against the complainant S.L. A seven day trial is scheduled to commence this week. On March 14, 2025, the police learned that S.L. has relocated to Thailand. The Crown applies to have S.L. testify by videoconference outside Canada pursuant to s. 714.2 of the Criminal Code.
2The Defence opposes the application on the grounds that S.L. is a central witness to this trial and that her credibility issues are so acute, that this is one of the unique cases where it would be contrary to the principles of fundamental justice to allow her to testify remotely.
3The issue to be decided is whether S.L. can testify by videoconference from Thailand pursuant to s. 714.2 of the Criminal Code, and if so, under what conditions?
4All legislative references are to the Criminal Code unless otherwise stated.
Evidence filed in this application
5In arriving at my decision, I have considered the following evidence:
a. the transcript of S.L.’s testimony at the preliminary inquiry on July 13, 2023;
b. affidavits filed by Detective Donaghy dated April 10 and 15, 2025;
c. Detective Donaghy’s cross-examination of April 24, 2025;
d. Canada’s Mutual Legal Assistance in Criminal Matters (“MLAT”) legislation and Canada’s Treaty Between the Government of Canada and the Government of the Kindgom of Thailand on mutual Assistance in Criminal Matters;
e. correspondence from the International Assistance Group of the Department of Justice (“IAG”) in relation to a request to Thai authorities to assist with the facilitation of S.L.’s testimony from Thailand; and
f. information from the Thai Prosecutor Mr. Nonth Mongkoltanmaku about the logistics for how the testimony would be conducted from Thailand.
Analysis
6The test for receiving evidence given by a witness outside Canada by videoconference is codified in s. 714.2(1). The provision reads:
A court shall receive evidence given by a witness outside of Canada by
videoconference unless one of the parties satisfies the court that the reception of
such testimony would be contrary to the principles of fundamental justice.
7The provision mandates the court to allow remote testimony for witnesses outside Canada unless the party opposing such an application can demonstrate why such evidence would be contrary to the principles of fundamental justice. In short, the burden is on the Defence to demonstrate that allowing S.L. to testify from Thailand would be contrary to the principles of fundamental justice.
8This onus reflects the reality that a potential witness who is out of the country cannot be compelled to return to Canada to testify and consequently, Parliament’s intention that the courts treat requests for remote testimony for out of country witnesses differently from witnesses who are within Canada. Under s. 714.1, which governs whether witnesses in Canada “may” testify remotely, the court is afforded more discretion and asked to consider a range of factors: R v Brooks, [2020] O.J. No. 6243, at para 8. These factors and discretion have limited application to the assessment under s. 714.2 governing out of country witnesses given the mandatory language of the provision and the absence of any reference to the factors: R v Robinson, 2021 ONSC 2447 at paras 10-11; R v Mapp-Farouk, 2020 ONSC 5040 at paras 10-11.
9In this case, it only came to Det. Donaghy’s attention about six weeks prior to trial that S.L. had relocated to Thailand. She was previously residing in Eastern Canada. I would note that she had travelled to Ottawa for the first trial date scheduled in 2024. Upon contacting S.L. in Thailand, she indicated to Det. Donaghy that she is ready and willing to testify again at this trial. S.L. also participated in preparatory meetings with the Crown and Det. Donaghy.
10The complainant has indicated she does not wish to return to Canada for trial. The cost for travel and accommodations would be between $5500 and $7500. In addition, S.L. has concerns about the 15 hour flight, the impact of jet lag, and missing work while she is here. She indicates that she has her laptop to allow for virtual testimony and all the information necessary. Considering S.L.’s position, the Crown made a rapid request to arrange for S.L. to testify remotely from Thailand and with the cooperation of Thai state authorities.
11Defence opposes the application for S.L. to testify from Thailand on the grounds that first, she is a central witness to the case and second, her credibility issues are so acute that it would be contrary to the fundamental principles of justice to allow her to testify remotely.
12With respect to centrality, S.L. is the primary and only viva voce witness in this case. However, as the Crown points out, her evidence is not the sole evidence that the Crown will be relying on. The Crown intends to tender evidence of text communications, banking records, and hotel records to corroborate her testimony. More importantly, the jurisprudence is clear that even where the case turns on the evidence of a single witness – for example in cases of human trafficking or sexual assault – the courts have permitted the witness to testify remotely from outside the country: Robinson, R v Diaogenous, [2024] O.J. No. 6242; R v Fushekati, [2021] O.J. No. 7766.
13With respect to Defence’s second argument, counsel relies on a passage from the decision of Dunphy J in R v Mapp-Farpouk, 2020 ONSC 5040. In that case, the Crown sought to have the mother of the accused who observed her son in possession of a firearm to testify from Barbados. In deciding the application, Justice Dunphy reviewed factors relevant in assessing the application including the issue of the assessment of credibility. Justice Dunphy found that while the physical presence of a witness at trial may be desirable, it has never been the only means of obtaining trial evidence. There are types of hearsay evidence that may be admissible, and some witnesses may testify remotely or behind a screen: Mapp-Faroukat para 19; see also Robinson at para 15.
14More specifically, I would add that while having the witness present in the court is often preferred, it is not unusual in cases involving offences of sexual assault and/or human trafficking to have witnesses situated in Canada to testify from outside the courtroom by Zoom or CCTV with counsel cross-examining from the court. As the Crown points out with respect to this case, Defence counsel had previously consented to S.L. testifying by CCTV and hence, even if S.L. had been required to return to Canada to testify, the physical circumstances of her testimony would likely be similar to what is anticipated, and that is that she would appear remotely from a boardroom and with the rest of the parties present in the courtroom.
15In addition, Dunphy J notes in Mapp-Farpouk that while the system of justice has traditionally considered the ability of person to confront his or her accused in the presence of the tier of fact as the “gold standard for testing credibility”, these traditions evolved at a time where the level of available technology offered few if any realistic alternatives: at para 20. That is certainly no longer the case given the technological advancements in allowing for effective remote testimony.
16Dunphy J does suggest at paragraph 24 of his decision that given the wording of s. 714.2, there may be cases “where issues of credibility are so acute and central that it appears that only a face-to-face confrontation would be capable of satisfying the principles of fundamental justice.” It is on this passage that Defence relies. Defence fairly concedes that they have not been able to identify any cases where remote testimony was denied on this basis. Nonetheless, they argue that if there ever was such a case, this would be it. Defence argues that this is a case where issues of credibility are so acute that it would be contrary to the principles of fundamental justice to allow S.L. to testify remotely. Counsel identified passages in the following pages of the complainant’s preliminary transcript to illustrate why the credibility issues of S.L. are so acute and central: pp. 20, 26-27, 29-34, 36, 36, 37, 48, 49, 67, 69. 92, 97, 98-100. In addition, counsel highlighted entries in Det. Donaghy’s notes taken during S.L.’s recent preparatory meeting with the Crown to suggest ongoing concerns about her credibility.
17Based on the record before me, I am not satisfied that the issues with the credibility of S.L. are so acute that it would be contrary to the principes of fundamental justice to allow her to testify remotely from Thailand. For example, in some passages from the preliminary hearing transcript highlighted by Defence, S.L. does not clearly recall all events. There was reference in one instance as to whether she heard a doorbell or not before a person entered and, in another instance, whether she could not remember the exact amount of money the accused expected her to earn in the alleged trafficking arrangement. The fact that she was uncertain of her answers may suggest discrepancies in her evidence, but it may equally suggest that she was a witness who was trying to be truthful and did not want to report things she was unsure of or for what she did not have an independent recollection.
18Similarly, the entries made by Det. Donaghy may suggest discrepancies between what she recalls now and what she stated a the preliminary hearing, but until the complainant has had an opportunity to explain what she said and meant on either occasions, I am not persuaded that S.L. has credibility issues that rise to a level of acuteness such that it would be contrary to the principles of fundamental justice to allow her to testify remotely.
19Similarly, counsel highlighted passages in the preliminary hearing transcript where S.L. acknowledged that she had ongoing issues with the consumption of alcohol and non-prescription drugs and further admitted she had consumed such substances on the day of her preliminary hearing testimony. While these past sobriety issues might ultimately impact the credibility and reliability of her accounts of events related to the time period and/or the elements of the offences for which the accused is charged, I am not persuaded that counsel cannot effectively challenge S.L. on these issues related to sobriety via a remote hearing process.
20Furthermore, with respect to whether S.L. has ongoing sobriety issues and whether these might interfere with her potential trial testimony, I must also consider the more recent evidence before the court. It is not disputed that S.L. was under the influence of substances when she testified at the preliminary hearing in July 2023. In his affidavit of April 15, 2025, Det. Donaghy confirms that when the complainant attended for the preliminary hearing on July 13, 2023, she had consumed alcohol, marijuana, and clonazepam that same morning. He notes that her speech and thought process were noticeably slow. Det. Donaghy testified, and the Crown reiterated, that the concerns identified about her sobriety on the day of the preliminary came about not because she smelled of alcohol or was stumbling, but because to the manner of her testimony which was characterized by slow speech, fatigue, and brain fog.
21Furthermore, Det. Donaghy found that when the complainant met with the Crown a year later on September 23, 24, and 30, 2024, to prepare for the first scheduled trial date, she was sober and did not speak slowly like she had in her police interview or at the preliminary hearing. The original trial date was adjourned because defence counsel was ill.
22In addition, Det. Donaghy testified that he and the Crown met with the complainant more recently on April 19, 21, 22, and 23, 2025, to prepare for trial. These meetings varied in length from 1 to 1/1 2 hours and there was no evidence that S.L. was manifesting issues with sobriety as observed during the preliminary hearing. Det. Donaghy noted a change in the complainant over her time. In his initial interaction with S.L. in 2022, he observed her to be thin, her face to be gaunt, and her cheeks sunken in. At the preliminary hearing in 2023, she looked similar and had slow speech. In contrast, at the trial preparatory meeting in 2024, she appeared to have put on healthier weight and did not have slow speech. I find that Det. Donaghy’s evidence suggests that the risk of S.L. attending the proceedings in an inebriated state is certainly lower than may have been the case previously.
23Furthermore, the Crown arranged through the MLAT process to have S.L. testify from a boardroom of Thailand’s Office of the Attorney General (“AG”) and in the presence of a Thai Prosecutor. These arrangements were made by RCMP officer Janelle Canning Lue who is based in Thailand with the cooperation of local authorities. Hence, should S.L. attend in an inebriated state or with any symptoms that might cause concern, the Thai Prosecutor can alert the police and Crown so the court can determine how best to proceed. The Thai prosecutor Mr. Mongkoltanmaku confirmed he is willing to do this. In addition, I would note that the presence of the Thai Prosecutor during S.L.’s testimony also provides assurance that the witness will testify in a manner that is free from influence or aides, a concern that is sometimes raised: Fushekati at p. 4. Finally, as the Crown pointed out, should issues arises, the Defence is always entitled to renew their application.
24Defence also highlights that given the credibility concerns they have identified for this witness; it was open to the Crown to obtain a judicial order from Thailand courts under the MLAT process that would stipulate the conditions of S.L.’s court testimony and any legal consequences for failing to abide by these conditions such as a charge of perjury. This would have ensured S.L. understands her responsibility to speak truthfully, the seriousness of her oath, and the potential consequences for failing to do so. However, as noted by counsel for IAG in their correspondence to the Crown, s. 22.1 of the MLAT only applies where IAG needs to compel a person to testify. Where there is a cooperative witness, as is the case here, IAG will not necessarily obtain a court order. In this case, a request was made of another state to render assistance with a court testimonial process and that state has agreed. In these circumstances, it would not be necessary to obtain a judicial order from a Thailand court.
25More importantly, I would note that this Court can provide a caution to the complainant to ensure she understands that her testimony is under oath and there are legal consequences that arise from any potential misconduct. S.L. will be testifying before a judge and in a Canadian court, albeit remotely. As per s. 714.6, the evidence she gives is deemed to be given in Canada and given under oath or affirmation in accordance with Canadian law, for the purposes of the laws relating to evidence, procedure, perjury, and contempt of court. Hence, the kinds of sanctions that might be available under a Thai judicial system such as charge of perjury would be equally available to the Crown should they choose to pursue them.
26Finally, I am mindful of logistical issues. Technical issues can arise that could potentially impede effective testimony. However, the Crown has confirmed that the AG’s office in Thailand has done internet speed tests to confirm their connection is fast enough for Zoom. The system was tested this morning with the court registrar and reporter and appeared to be working.
27There is also time difference with Thailand which is 11-hours ahead. A court day of 10 am to 5pm EST translates as 9 pm to 4 am in Thailand. Neither the accused nor anyone involved in these proceedings should be expected to proceed in accordance with the Thailand time zone. However, in such situations, the court is entitled to put in safeguards to ensure a fair and orderly trial. For example, in R v Fushekati at pp 4-6, the court ordered the following conditions to ensure the accused’s fair trial rights were protected: a. Ensuring the video camera is properly positioned; having the witness confirm they are in a private room free from distractions and demonstrate such; confirming the witness does not have any materials; and providing certain cautions. In Fushekati, the Court was also willing to adjust the court schedule to accommodate for differences in time zones: at p 7.
28In this case, I find that the following conditions for S.L.’s remote testimony would serve to safeguard the concerns raised by Defence counsel:
a. The trial would proceed between the hours of 9 and 2 pm which is 8 pm to 1 am in Thailand. It would be unreasonable for either the witness or staff in Thailand to be required to work beyond those hours. I understand from the evidence of Det. Donaghy that the complainant is agreeable to testifying during those hours.
b. S.L. will testify under oath from a boardroom at the AG’s office in Thailand. At present, the virtual testimony is to proceed by way of Zoom, but it may also proceed by another virtual means if necessary.
c. There will be a judicial officer present during S.L.’s testimony. In this case, a Nonth Mongkoltanmaku has confirmed his ability to be present.
d. The presiding officer in Thailand will relay to the lead investigator and Crown prior to S.L.’s testimony each day whether there are concerns with respect to S.L.’s condition to testify, including any concerns related to her sobriety. That information will be shared with defence counsel, and the parties can accordingly make submissions to the court.
e. S.L. will confirm each morning in court what materials she has with her during her testimony, i.e., Laptop for Zoom purposes, copies of her statements, etc.
f. At the outset of her testimony, I will provide an appropriate caution to S.L. regarding her oath and affirmation and the potential legal consequences of breaching. I may provide additional cautions as and when required throughout the trial.
29For all these reasons, I find that the accused has not demonstrated that to allow S.L. to testify remotely would be contrary to the principles of fundamental justice.
30The Crown application is granted.
Somji J
Date: April 29, 2025
CITATION: R. v. Al-Hajj, 2025 ONSC 2623
COURT FILE NO.: 22-11402129
DATE: 2025/04/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. Al-Hajj
BEFORE: Somji J.
COUNSEL: Anya Kortenaar for the Crown
Neil Weinstein for Mr. Al-Hajj
ruling on application for s.l. to testisfy by videoconference from outside canada
Somji J.
Released: April 29, 2025