R. v. M.B., 2025 ONSC 420

COURT FILE NO.: CR-23-30000605
DATE: 2025-01-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. M.B.
BEFORE: Justice E.M. Morgan
COUNSEL: Anna Serban, for the Crown
Maria Rose Muia, for the Defendant
HEARD: January 20, 2025

Publication Ban

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

Application Under Section 714.1 of the Criminal Code

[1] The Crown has brought an application under section 714.1 of the Criminal Code to allow a witness, T.A., to testify by video at the trial. I understand that T.A. is the aunt of the Complainant in this matter, and that her testimony is anticipated to be relatively short – less than 1 hour. Her anticipated evidence deals with one, brief discreet incident. It entails her observation of two individuals who met her niece briefly in a vehicle. This evidence, while important to the Crown’s overall presentation of the case, is not exactly at the very heart of the matter at trial.

[2] T.A. is apparently now living in Elliot Lake, Ontario, approximately a 5-hour drive from Toronto. The Crown only discovered that she was there on January 15, 2025 – i.e. 5 days ago. Previously, I understand that it was thought that she was in Toronto.

[3] T.A. has been described as homeless, or as someone with no stable housing or access to transportation. She has no funds to pay her way from Elliot Lake to Toronto. And, although the Crown would reimburse her for that trip and for an overnight stay, Crown counsel advises that T.A. would have to go out of pocket for those expenses and then seek reimbursement. That appears to be impossible for her. It is the Crown’s submission that the hardship represented by the trip to Toronto would be disproportionate to the anticipated testimony.

[4] Constable Andrea Yepes has testified that careful arrangements have been made for T.A.’s testimony. OPP officers have arranged to pick her up the day of her testimony and to take her to the witness support centre where she will testify by video link. The OPP officers will ensure that she is alone for her video testimony and not in communication with anyone at the time.

[5] The equipment needed for the video testimony is already in place. While Officer Yepes has indicated that the equipment has not yet been specifically tested for T.A.’s testimony, she is confident that it will be tested and will be in working order for T.A.’s appearance. I will note that testimony by Zoom has become a far more commonplace procedure than it was prior to the 2020-2021 pandemic period, and the technology is generally quite reliable.

[6] Counsel for the Defense submits that the application is out of time. Under the Rules, the Crown was supposed to give 30 days’ notice.

[7] The defense is correct about the Crown being out of time, but the court has discretion to abbreviate the notice period. I see no prejudice in doing so here.

[8] Crown counsel discovered T.A.’s whereabouts in Elliot Lake on January 15th and served the Notice of Application on Defense counsel on January 16th. While the Defense has only had a couple of days to absorb this new development, the issues are straightforward and Defense counsel in making submissions has obviously grasped them and has been able to formulate a response, complete with some relevant case law.

[9] Defense counsel states that T.A.’s testimony is anticipated to include an identification of the accused. It is her view that identification evidence is not something that should be done by video.

[10] In response, Crown counsel has indicated that although T.A. may testify as to whether she recognized the accused, identification of the accused in the dock will not be part of T.A.’s testimony. There will be other evidence from other witnesses identifying the accused.

[11] Otherwise, there is no particular prejudice associated with the proposed video testimony. That said, counsel for the Defense points out that courts should not be rubber stamping applications like this, and that it is out of the ordinary for a witness not to appear at trial in person: R. v. Barr, 2021 ONSC 8042.

[12] I am aware that, generally speaking, use of video testimony tends to be inversely proportional to the importance of the testimony. The Nova Scotia Court of Appeal pointed out in R. v. SDL, 2017 NSCA 58, at para. 26, that where a witness’ credibility is at issue, courts have been less likely to authorize video testimony.

[13] That said, I do not see any strong reason here not to authorize T.A.’s video testimony. In all of the circumstances, the relevant factors under section 714.1 have been satisfied. The hardship to the witness is serious, the nature of the testimony is that it will be short and to the point and addressing one discreet incident, appropriate arrangements for the testimony from a remote location have been made, and this is a judge alone trial such that credibility and other issues are more readily dealt with by the trial judge.

[14] Given the nature and seriousness of the offense charged, there is a strong interest in ensuring that the matter be adjudicated on its merits so that the true facts can come out. As my colleague Justice Brian O’Marra indicated in R. v. Husbands, 2018 ONSC 6831, where the cost-benefit of the witness’ circumstances weighs in favour of video testimony, and the video equipment is in good working order, there is little trouble assessing credibility of witness testimony by video link, including for very serious criminal charges.

[15] In all, having T.A. testify by video may not be perfect, but it is also not prejudicial. Under the circumstances, it is preferable to not having her testify at all.

[16] The Crown’s application is granted.

Date: January 20, 2025
E.M. Morgan