Court File and Parties

Court File No.: CV-17-00003274-0000
Date of Judgment: January 13, 2025
Court: Ontario Superior Court of Justice

Between:
Andrew Sanayhie (Plaintiff)
and
Durham Regional Police Services Board, Jonathan Hood and Kashif Polani (Defendants)

Plaintiff Counsel: Barry Evans and Kevin Mitchell-Gill
Defendant Counsel: Shannon M. Gaudet and Zahra Vaid

Heard: January 9, 2025

Judge: M. McKelvey

Reasons for Decision Re: Request for Evidence to be Given Virtually

Introduction

[1] The trial in this action commenced before a jury. The allegations in the action include assertions by the Plaintiff that he was arrested unlawfully at a Tim Horton’s store in Pickering and that the force used by the police in the arrest was excessive.

[2] Two officers were involved in the incident involving the Plaintiff. One of those officers is Officer Jonathan Hood. The Defence is proposing that Officer Hood’s evidence be heard virtually. The Plaintiff argues that Officer Hood should be required to attend in court to give his evidence in person.

[3] A voir dire was held on the Defence motion to have Officer Hood give his evidence virtually.

The Applicable Rules

[4] Rule 53.01 provides that unless the Rules provide otherwise, witnesses at the trial of an action shall be examined orally in court.

[5] The Defendants, however, argue that Rule 1.08 of the Rules provides an exception to the general principle that witnesses are required to testify in court. This Rule provides that at a case conference, a court may make an order directing the method of attendance at the hearing or step and, in doing so, the court shall consider a number of factors. Both parties agree that this rule provides authority for a court to direct that a witness may give evidence by video conference.

[6] The factors that a court is required to consider are as follows:

• (a) the availability of telephone conference or video conference facilities;
• (b) the general principle that evidence and argument should be presented orally in open court;
• (c) the importance of the evidence to the determination of the issues in the case;
• (d) the effect of a telephone conference or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;
• (e) the importance in the circumstances of the case of observing the demeanour of a witness;
• (f) whether a party, witness or lawyer for a party is unable to attend by a method because of infirmity, illness or any other reason;
• (g) the balance of convenience between any party wishing the telephone conference or video conference and any party or parties opposing; and
• (h) any other relevant matter.

Analysis

[7] In the present case, the Plaintiff argues that Officer Hood should be required to attend to give evidence in court. They point to the fact that he would be one of the most important witnesses in the case and his credibility will be a very important factor for the jury to consider.

[8] The Plaintiff also argues that the jury may miss important body language which would be relevant to the jury in considering Officer Hood’s demeanour. In their view, it is critically important for the jury to see all of the witnesses’ body language and demeanour.

[9] In support of its request, the Defence has filed an affidavit from Dr. Christine Hansen who is a clinical psychologist working at Durham Psychologists Services. Dr. Hansen also gave evidence and was cross-examined during the voir dire.

[10] Dr. Hansen was asked by the Defence to provide an opinion regarding Officer Hood’s fitness to testify in person at the trial. She expressed the opinion that testifying in person would be harmful to Mr. Hood’s psychological well-being and safety. Dr. Hansen reports that Officer Hood is not currently at work and is under her care for psychological injuries and a range of symptoms related to an accumulation of trauma exposures over his career. She further notes that Officer Hood has received two death threats and that police have set up electronic surveillance of Officer Hood’s home. In her evidence on the voir dire, Dr. Hansen testified that Officer Hood rarely leaves his home which is the only place he feels safe.

[11] Dr. Hansen further testified that Officer Hood has been diagnosed with post-traumatic stress disorder, a major depression and a sleep disorder. His anxiety level is very high and Dr. Hansen is worried about it becoming worse. She stated that she is concerned that seeing police officers and police cruisers will likely be a trigger for increased anxiety by Officer Hood. In her view, Officer Hood’s recovery would be adversely affected if he were required to attend in court.

[12] With respect to the relevant factors, it is apparent that the courthouse has excellent video conference facilities. These were tested out during the voir dire and no problems were identified.

[13] With respect to the ability to observe the demeanour of a witness, a number of courts have commented on the use of video technology. For example, Justice Mew in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 5385, notes that the use of video does not now represent a significant deviation from the general principle favouring oral evidence in court. He notes:

Such evidence is given orally, under oath or affirmation, and is observable “live” as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time.

[14] In the decision in Pack All Manufacturing Inc. v. Triad Plastics Inc., Justice Rutherford commented as follows on the issue of demeanor:

In my experience, a trial judge can see, hear and evaluate a witness’ testimony very well, assuming the video-conference arrangements are good. Seeing the witness, full face on in colour and live in a conference facility is arguably as good or better than seeing the same witness obliquely from one side as is the case in our traditional courtrooms here in the Ottawa Court House. The demeanor of the witness can be observed, although perhaps not the full body, but then, sitting in a witness box is not significantly better in this regard.

[15] The Plaintiff argues that anxiety is an inherent part of the process of attending at trial and giving evidence. They therefore take the position that anxiety is not a reasonable basis to deny them the opportunity of having Officer Hood cross-examined in person. While I agree that anxiety is very often associated with giving evidence in court, what we are dealing with in this case is not the normal anxiety of an attendance in court. What we’re dealing with here is a substantially increased level of anxiety associated with a medical diagnosis of post-traumatic stress disorder, depression and sleep disorder. We are dealing with an individual who has been disabled from attending at work. I accept Dr. Hansen’s evidence that attending in person in court would “be harmful to Mr. Hood’s psychological well-being” separate and apart from his attendance to give evidence raised in the issues at this trial. This is recognized as a specific consideration under Rule 1.08.

[16] In my view, courts must be prepared to adapt to new technologies, especially where there are special circumstances which justify a departure from traditional rules. In a case such as this one, I am not able to see a significant downside for the Plaintiff in having Officer Hood attend virtually. On the other hand, there is potential harm if he is required to attend at court in person. In Davies v. Corporation of the Municipality of Clarington, 2015 ONSC 7353, Justice Edwards comments on creating an environment that promotes efficient, affordable and participatory access to justice. He states:

The Supreme Court of Canada has, in my view, sent a very clear message that it supports the move from conventional courtroom procedure imposed by traditional design into more modern and flexible approaches tailored to the needs of a particular case. In Hryniak, the court recognized that to create an environment that promotes efficient, affordable and participatory access to justice requires modern methods of adjudication. Implicitly, those modern methods of adjudication include video technology in the courtroom.

[17] Taking all of the relevant factors into consideration, I have concluded that the balance of convenience favours allowing Officer Hood to testify by video and I so Order.

Justice M. McKelvey
Released: January 13, 2025