R. v. Pike, 2021 ONCJ 422

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Pike , 2021 ONCJ 422 DATE : 2021 07 13 COURT FILE No .: 19-15007852 Toronto Region : Old City Hall BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTOPHER PIKE Before Justice H. Pringle Heard on July 12, 2021 Decision released orally on July 12, 2021

Reasons for Judgment released July 13, 2021 Pamela Santora and Benjamin Lerer............................................ counsel for the Crown George Tsimiklis.......................................................................... counsel for the defendant PRINGLE J.: OVERVIEW [ 1 ] Mr. Pike’s trial is scheduled to begin on July 13, 2021. By written notice, the Crown sought three pretrial motions granted: (

i) An order permitting two witnesses to testify, from outside the courtroom and virtually, pursuant to s. 714.1 [the “Zoom” motion]; (ii) An order permitting the complainant to testify by CCTV from a courthouse ante room, pursuant to s. 486.2(2), and; (iii) An order for a support person or dog to be present during the complainant’s testimony, pursuant to s. 486.1(2). [ 2 ] The “support” application was abandoned by the Crown in oral submissions. The Crown has established it would be fair and appropriate to permit the complainant to testify remotely through videoconference “Zoom” technology.

Accordingly, the “CCTV” motion was rendered moot. POSITIONS OF THE PARTIES [ 3 ] As a factual record, the Crown asked me to take judicial notice of the ongoing COVID-19 pandemic, including the known methods of transmission, protection, and prevention, as per R. v. Morgan, [2020] ONCA 276 . In addition, both Crown and defence invited me, without objection, to rely upon the factual content of their respective submissions. [ 4 ] Mr. Pike is charged with assault and sexual assault. I was provided with an overview of these allegations. Suffice it to say that the complainant’s testimony will be sensitive and personal.

Her credibility and reliability will be pivotal. She does not reside in Toronto, and has recently re-located far from here. The Crown submitted she, as well as a nurse from UHN, should be permitted to testify remotely given the ongoing COVID-19 pandemic. [ 5 ] The defence resisted the Crown’s request to have the complainant testify virtually. He submitted that credibility is key, and protecting the ability to make full answer and defence required cross-examination in person. More specifically, his ability to cross- examine could be hampered if counsel and witness were separated by video screen.

For example, he would be unable to gauge body language, such as hand gestures and movements, properly. [ 6 ] The defence also argued the solemnity of testifying in court would not be brought home to the complainant, given that she would be inside her own bedroom. Mr. Tsimiklis, reasonably extended consent to this “Zoom” motion, if the complainant were to testify from her local courthouse or perhaps a law firm. LEGAL AND FACTUAL ANALYSIS [ 7 ] Current circumstances lend some optimism to the ongoing COVID crisis in Ontario.

But as I have said, in past and present sentencing decisions, COVID is indiscriminate as to whom it strikes and how hard it does strike. Its evolution is not firmly predictable. Daily, it remains an ongoing danger. [ 8 ] Our Chief Justice has directed court hearings should proceed virtually unless in-person proceedings are necessary. I understand this directive does not bind my decision. I also understand that the directive’s purpose is to protect all persons who help provide the essential service of criminal justice or who are otherwise involved in the justice system during the pandemic. [ 9 ]

Section 714.1 of the Criminal Code provides this court with the discretionary power to order a witness give testimony virtually, if appropriate. This determination must be based on all circumstances, including but not confined to: (

i) the location and personal circumstances of the witness; (ii) the cost that would be incurred if the witness appeared personally; (iii) the nature of the witness’ anticipated evidence; (iv) the suitability of the location from where the witness would give evidence, and; (

v) the nature and seriousness of the offence. [ 10 ] In this case, it is appropriate to hear the testimony of both Crown witnesses by video conference. Given the defence only opposed the complainant’s virtual appearance, I have confined my reasons to her testimony only.

[ 11 ] The complainant now resides many hours away, in [ name of city omitted ], Ontario. She relocated there, last week, from the [ name of city omitted ] area. Having moved through both of those jurisdictions, requiring her to attend Toronto in-person would add a third jurisdiction to her recent travels. While things are looking positive in Ontario, an outcome remains uncertain.

I cannot characterize her personal attendance at Old City Hall as necessary. [ 12 ] Requiring her to attend in person would involve risk to her, to counsel who wants to cross-examine her from inside the same room, and to all courthouse staff who are keeping our system running during COVID. Avoiding such risk is the precise rationale underlying the Chief Justice’s directive to proceed virtually where appropriate. [ 13 ] The cost of travel is not a relevant factor here. But the nature of her anticipated evidence is. Her testimony is anticipated to be sensitive and personal. Her allegations are serious.

The charges the defendant faces are serious. There must be no impediment to assessing the complainant’s credibility and reliability. [ 14 ] The suitability of the proposed location gave me pause. The Crown has arranged for the complainant to testify from her bedroom, with the door closed. I was concerned this would not properly communicate the solemnity of testifying in a courtroom under oath. I was also concerned about the informality of this location. More specifically, this perceived informality might send the wrong message, to the witness, to Mr.

Pike, and to the public, about how the justice system handles serious criminal charges. [ 15 ] Ideally, it would be preferable if the complainant could have testified from inside a local courthouse or from a local law office. However, the Crown correctly argued that such an arrangement would undercut the purpose of her application. The complainant’s presence at the [ name of city omitted ] would create COVID transmission risk for her and staff in that courthouse, instead of Old City Hall. This would not eliminate risk, but simply re-direct it.

After some deliberation, I concluded the proposed location would be suitable, pursuant to the requirements in at para. 30 of R. v. Rutaihwa, 2020 ONCJ 470 being met. [ 16 ] In assessing all circumstances, I have considered one factor outside the non-exhaustive statutory list.. Having the complainant testify by Zoom would likely enhance my ability to assess her credibility.

Respectfully, I do not see how that would be any different for defence counsel’s ability to assess her demeanour during cross-examination. [ 17 ] Currently, an in-person trial requires all participants to be masked and separated from one another by sheets of plexiglass. My limited experience with such trials is that it can be difficult to hear what is being said, and it can be challenging to view a witness’ facial expressions. I have had a far superior ability, comparatively, to observe witness demeanour by videoconference. Videoconference technology has come an exceptionally long way.

The earlier s. 714.1 cases do not reflect those technological advances. [ 18 ] In my view, permitting the complainant to testify by video will serve to protect Mr. Pike’s right to a fair and full hearing. Mr. Pike is represented by experienced and capable counsel. I have no doubt that he is equally able to cross-examine by video as he is in a courtroom, although the latter may feel more familiar and comfortable. CONCLUSIONS [ 19 ] The complainant and the UHN nurse will be permitted to testify remotely by videoconference.

This ruling may be re-visited, if the Rutaihwa requirements cannot be complied with or technological impediments arise. [ 20 ] Finally, the defence applied for an adjournment, if the s. 714.1 motion were to be granted. He sought a trial held, in person, at some future time. [ 21 ] This request was admittedly an attractive one, given the seriousness of these allegations, the defendant’s preference for an in- person trial, and the relatively optimistic COVID infection numbers in Ontario. [ 22 ] But again, I return to the unpredictability of COVID-19, including its mutations and variants.

It may be possible that the pandemic is over in six months. It may not be. I have firmly concluded that Mr. Pike’s right to a fair, full hearing will not be compromised whatsoever by permitting videoconference testimony. [ 23 ] This trial has already been adjourned once due to COVID, in the hopes that an adjournment would allow for an in-person trial without risk. I cannot be sure that a second adjournment would not produce precisely the same result. Mr. Pike, the complainant, and the public all have a right and/or an interest in this trial being heard without unreasonable delay.

I have a duty to facilitate this aim. [ 24 ] With all things balanced and considered, the adjournment application must be denied and the trial will proceed as scheduled. Released: July 13, 2021 Signed: Justice H. Pringle