R. v. K.S., 2020 ONCJ 328

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. K.S., 2020 ONCJ 328 DATE: July 20, 2020 COURT FILE No.: 19-Y190647 BETWEEN: HER MAJESTY THE QUEEN — AND — K.S., a young person (or “young persons”) Before Justice B. Weagant Heard on July 15, 2020 Reasons for Judgment released on July 20, 2020

Robert Wright...................................................................................... counsel for the Crown Craig Brannagan................................................................................ counsel for the Crown Althea Coke........................................................................... counsel for the defendant K.S. Weagant, B. J.: [ 1 ] This is a ruling on an application by the Crown to have 8 witnesses give their evidence in this matter via videoconference from locations outside of the courthouse, pursuant to ss. 714.1 and 714.2 of the Criminal Code .

Counsel for the defence is not opposing the application for 6 of the witnesses, but opposes the application with respect to Albert K. and Ali H. [ 2 ] For what I say below, I am dismissing the Crown application. The parties were notified of this last week so that arrangements could be made to notify the witnesses before the evidence commences.

These are the reasons that were to follow. [ 3 ] The accused, K.S., a young person within the meaning of the Youth Criminal Justice Act , is charged with second degree murder, accessory after the fact, aggravated assault, assault with a weapon and 3 further counts of assault simpliciter. [ 4 ] The charges all stem from stabbings that occurred at a party held in a fraternity house/party rental at 22 Madison Avenue in the City Toronto last October 31, 2019. It is common ground that Jacob A., an adult, also charged with these same offences, was yielding the knife used in the stabbings.

The degree of participation of K.S. will be the subject of eye-witness testimony and other evidence, which I have been informed is video taken at the time. [ 5 ] Witness Albert K. The nature of the anticipated evidence of Albert K. is that he was present at the party and captured some of the events on video with his mobile phone. He will testify that he witnessed a struggle to remove Jacob A. and K.S. from the premises once the violence began. A knife was removed from Jacob A. and given to a bouncer during this removal process.

Albert K. alleges that K.S. was hitting out at people while they were trying to remove her from the premises. [ 6 ] Witness Ali H. Ali H. is expected to testify as follows. He witnessed the stabbing which led to the death of F N. Ali H. was outside of the Madison Ave. residence that night with some friends. He witnessed Jacob A. roaming around outside the residence threatening people who were looking at him or trying to film him. Jacob A. chased some people across the street toward a parking lot behind the Madison Pub but then returned to the front lawn area of 22 Madison Ave.

He started to exchange words with the deceased, F.N., when an onlooker yelled that Jacob A. had a knife. F.N. backed up and then tried to get away, but was chased by Jacob A. During the chase, Jacob A. fell several times and it is expected that Ali H. will testify that K.S. helped him back to his feet. During this chase, Jacob A. was verbally threatening to stab F.N. [ 7 ] It is expected that Ali H. will testify that F.N. picked up a trash can and threw it towards Jacob A. Jacob A. grabbed him by the shoulder and tried to stab F.N., unsuccessfully.

F.N. ran down a laneway beside 23 Madison Ave. with both Jacob A. and K S. giving chase. F.N. was ultimately cornered in the lane and stabbed in the chest.

F.N. fled again, and was pursued by Jacob A. and K.S. [ 8 ] Ali H.’s anticipated evidence is that he followed F.N. to his car, who was complaining of breathing problems and was holding his chest. [ 9 ] The Crown makes application for these 2 witnesses to testify remotely by videoconference under s. 714.1 of the Criminal Code : Audioconference and videoconference — witness in Canada 714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness were to appear personally; (

c) the nature of the witness’ anticipated evidence; (

d) the suitability of the location from where the witness will give evidence; (

e) the accused’s right to a fair and public hearing; (

f) the nature and seriousness of the offence; and (

g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

[10] This

section confers wide discretion on the trial court. [11] In the present application, both of the witnesses reside in Toronto and are physically able to attend court to give evidence. [12] The only evidence supporting this application is an affidavit of the officer in charge of the case, Detective Constable A. Purvis. He says that both of these witnesses have advised him of “… his preference to testify via video conference.” The sole reason offered bythe Crown to justify videoconference testimony was the public health crisis related to Covid 19.

Analysis [13] For obvious reasons – this matter being among the first trials to be held following the reopening of the Courts on July 6, 2020 –there is no caselaw on point. I was provided with 17 cases, mostly dealing with the issue under a previous version of s. 714.1, where theincluded ‘circumstances’ comprised a shorter list than the current version.

None of these cases dealt with a fact situation similar to thatbefore the court, namely a public health crisis. [14] Prior caselaw involving s. 714.1 is helpful in that I take two basic principles that run through that law which provide a startingpoint for my analysis. [15] I start with the basic proposition that s. 714.1 is a remedial provision that allows the court to facilitate the evidence of a witnesswho seeks to give testimony other than in the usual manner. (See R. v. Denham, 2010 ABPC 82 , [2010] A.J No. 1435 (Alta.Prov.

Court)). [16] A second guiding principle I distill from the caselaw is that the witness seeking the accommodation of ss 714.1 must have areason to invoke the section. It is not the law of Canada that witnesses have the option to give virtual evidence simply because theywould prefer to do so. Implicit in this principle is the recognition that the best evidence – in-person testimony – remains the defaultstandard for taking evidence in a criminal proceeding. (See R. v. Heynan, 2000 YTTC 502 (Yukon Territorial Court)) [17] I now turn to the application of the s. 714.1 test to the facts of this case.

Is the Court of the opinion that it would be appropriatehaving regard to all the circumstances, including those set out in the section, that the witnesses should give their testimony byvideoconferencing? [18] The Crown argues that the Covid pandemic represents a significant personal circumstance. The witnesses are entitled toaccommodation because they have expressed a preference. In other words, at this point in time, any witness automatically has adequatereason to seek accommodation under s. 714.1. [19] Our Court of Appeal took judicial notice of what the pandemic means to all Canadians. In R. v.

Morgan, 2020 ONCA 279, the Court said: We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmissionand recommended methods to avoid its transmission. [20] A differently constituted panel of the Court adopted this in R. v. Lariviere, 2020 ONCA 324 . [21] I, too, am in a position to take judicial notice. [22] The presence of the pandemic affects every person in this country.

Safety precautions are indicated for most forms of humanendeavor. [23] While every Canadian faces the basic challenges that the health crisis presents, we are aware that the possible impact of thevirus on certain segments of society may substantially increase the risk for those citizens. For example, the elderly or people with pre-existing conditions, generally do not fare as well as others should they become infected. [24] That is not the case here.

No evidence was called about an enhanced personal risk faced by either of these witnesses. [25] I am also entitled, in my view, to take judicial notice of the fact that the court has been closed since late March and was openedon July 6. Considerable person-hours have been expended by Ministry employees and court administration and the judiciary itself, inorder to achieve the reopening in a way that reduces the risk of transmission to people entering the courthouse.

Without listing the exactmeasures that have taken place in my courthouse, which include enhanced sanitation, distancing controls, population number controls,and plexiglass barriers, the government ministries responsible have endorsed the safety plan for our building. Employees have returnedto work for the first phase of the reopening, and urgent and priority trials are allowed to proceed.

These facts have been published onjustice websites and through Notices to the Profession. [26] It is not within my jurisdiction to accept or reject (on behalf of a witness) the safety plan put in place by the government, unlessthere is evidence relating to some enhanced personal risk that a witness may face, which is not the case here. [27]

Section 714.1 was not written with the pandemic in mind. I cannot interpret its provisions to mean that because of currentheightened health concerns, every witness can give remote testimony simply for the asking. There is a presumption to be inferred by theopening of the courts that the cases will proceed in the ordinary manner. [28] In my view, the evidence presented in this case falls short of what would be needed to even begin the balancing of “all thecircumstances”. The entire evidence is that the witnesses would prefer to give their testimony in another way.

Neither witness claimsindividual necessity due to personal health concerns. Neither witness was produced to be examined on their personal practices. Are they

working with other people, and how close? Do they use public transportation? Is it possible they are young people who have beenplaying fast and loose with social distancing rules, something commonly covered in the media? Do they have personal supportobligations to a vulnerable person, or do they live with someone with heightened health concerns?

Would they simply be morecomfortable giving evidence in the familiar atmosphere of their home? [29] Any evidence along these lines could help a court to be satisfied, one way or another, if there is a good reason to begin theanalysis under ss 714.1. [30] A lot of the examples I cite above involve personal information that witnesses are not generally bound to divulge. In thatregard, it may be that a simple sworn affidavit stating the presence of heightened health vulnerability would suffice to move to acomplete balancing of all of the circumstances. However, the privacy concerns may be subject to limits.

I consider the case of R. v.Chehil, 2014 NSSC 421. In that case it was a defence application to have 4 witnesses testify remotely. The Nova Scotia Court ofAppeal ruled that while the defence has no obligation to disclose anything to the Crown concerning what evidence it may call at trial, anapplication under s. 714.1 behooves the defence to discharge the burden of providing the court with sufficient evidence to justify theorder requested as the

section requires the Court to consider the nature of the anticipated evidence. [31] The total absence of evidence about the circumstances of these witnesses is enough to dispose of this application by dismissingit. [32] However, if I am erring in deciding that there is a fundamental lack of an evidentiary basis to support an order under s. 714.1, Iwill proceed to analyze all known circumstances, including those listed in s. 714.1.

a) The Location and Personal Circumstances of the Witnesses Both witnesses live in Toronto and both will make themselves available to give testimony should this application be dismissed. I know very little more about the personal circumstances of the witnesses, except that they live in a city that is considered the provincialepicenter of the pandemic.

b) Costs of Requiring Attendance I have no evidence that there are any cost considerations over and above what is generally required of a witness.

c) The Nature of the witnesses’ Evidence In R. v S.D.L., 2017 NSCA 58 , a decision of the Court of Appeal of Nova Scotia, the Court proposed guiding principles forNova Scotia trial judges when considering s. 714.1 applications. Although the decision predates the amendments which added to the listof ‘considerations’, the persuasiveness of the reasoning on credibility and witnesses stands. Chief Justice Macdonald writes (atparagraph 32): 1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should bepermitted.

As the case law suggests, in appropriate circumstances, it can enhance access to justice. 2. That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptionalcircumstances that personally impact the proposed witness. Mere inconvenience should not suffice. 3. When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even morecompelling. 4. The more significant or complex the proposed video link evidence, the more guarded the court should be. 5.

When credibility will not be an issue, the test should be on a balance of convenience. 6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically beprovided by affidavit. Should cross examination be required, that could be done by video link. 7. When authorized, the court should insist on advance testing and stringent quality control measures that should be monitoredthroughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited. 8.

Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify “in a courtroom…or at theoffices of Victims’ Services…”. To preserve judicial independence and the appearance of impartiality, the video evidence, wherefeasible, should be taken from a local courtroom. [36] Both of the witnesses in this case have eye-witness testimony to give. Certainly, credibility is in issue. [37] The Crown has submitted three cases where a witness of central importance was granted leave to testify remotely, in spite of thefact credibility was in issue. [38] In R. v.

McLean, 2000 YKTC 64, Justice Faulkner allowed a complainant in a sexual assault case, who was located in Nanaimo,to give remote testimony. Evidence was adduced about the detrimental mental health effects in having the complainant return to thejurisdiction to give live evidence. She was undergoing a recovery process that was described by her attending physician as “fragile andprecarious”. The concern was that she would relapse if she returned to the village of Mayo in the Yukon where she became a substanceabuser. Evidence was tendered to support these facts. [39] In R. v. Husbands, [2018] O.J.

No. 7112, Justice B. O’Marra granted an application for a witness of central importance to the

case, where credibility was clearly in issue. Justice O’Marra accepted evidence that the witness’ role as mother to 4 children would besignificantly impacted, should she have to come to Toronto from her undisclosed location. However, Justice O’Marra further noted thatshe would get the same relief under the vulnerable witness

section of the legislation (s. 486.2) due to safety concerns. [40] The last case cited, R. v. Turner, [2002] B.C.J. No. 2576, involved an application under s. 714.2 for a witness living inWashington State, U.S.A. The test there is reversed: the order shall be granted unless it is shown that it would be contrary to theprinciples of fundamental justice.

This case is distinguishable on this ground alone. [41] In each of the cases cited there was a strong and specific factual foundation in evidence to support the order. [42] Applying the principle in S.D.L. (supra), the fact that the evidence of the witnesses will be tested for credibility means that thecompelling circumstances justifying video​conferencing testimony should be present. [43] I pause here to note that in the present case, the testimony of an expert from forensic services was the subject of this same Crownapplication and was not opposed.

This make sense given that credibility is of diminished importance; it is the reliability of the expert’sevidence that is in issue.

d) The Suitability of Location from where the Witness will give Evidence [44] The witnesses here wish to give evidence from a private room in their residences. [45] The Crown argues that an assessment of the suitability of the location involves a consideration of the following factors: will thewitness face the same level of solemnity offered by a courtroom and is the location free from outside influences and interruptions (see R.v. Osmond, (NL PC), [2010] N.J. No. 54 at paragraph 19)? To this list I would add that there should be evidence thatthe proposed technological platform is sufficient to do the job.

In R. v. S.D.L. (supra), the Court of Appeal sent the matter back forretrial because of the apparent technical difficulties encountered during the remote testimony. [46] The technology to be used in this case was not made an issue by Ms Coke during argument, so I will accept the Crown’ssubmission that the technology chosen is up to the task. [47] Where I differ with the Crown is in his submission that the necessary solemnity can be achieved through the dress of the witness,the fact there will be an oath or affirmation, and that the witness will see the other justice participants in the Courtroom. I disagree.

Myreasons are laid out below in the discussion of trial fairness.

e) Nature and Seriousness of the Offence [48] In spite of the fact that s. 714.1 applications have been successful in very serious matters, I would think that the collection ofcircumstances which favour remote testimony would have to be of increased gravity in serious cases. I regard the cases noted abovewhere the application was successful in serious cases as being extraordinary. [49] The young woman in this case faces one of the most serious charges in the Criminal Code. The nature of her involvement (asshe did not wield the weapon) is the entire case for the Crown to prove.

The importance of the eye-witness testimony is patently clear. To my mind, the circumstances of the witnesses – simply that they would prefer to give their testimony remotely because of unnamedhealth concerns, are insufficient to justify a departure from deeply established trial procedures.

f) The Accused’s Right to a Fair and Public Hearing [50] I do not intend to refer extensively to the caselaw given me, because in my view much of the judicial discussion focusses on thesuperiority/inferiority of the available technology, what the trial judge thinks about trends in the use of technology in the courtroom andthe effect of a virtual presence on the ability to cross-examine. In R. v. Allen, 2007 ONCJ 209 , my colleague Justice B.

Duncanmade an extensive ruling based on his review of the caselaw at the time and his view of the ‘right to confront witnesses’ and the value ofbeing able to cross-examine someone in person instead of virtually. He found little difference between a witness in the courtroom andone appearing with good technology when considering the potential prejudice to the accused’s right to make full answer and defence. [51] Whether or not I agree completely with this position is of no moment, as I intend to focus on other aspects of trial fairness.

Ithink that by focusing on whether certain of the accused’s fundamental rights are displaced, it is easy to forget other component parts offundamental trial fairness. [52] A fair trial encompasses much more than the Defendant’s rights and expectations.

To the extent that a right to a fair trial isembraced by the principles of fundamental justice, the concept of fairness must also reflect a diversity of interests, including the rights ofan accused, as well as the interests of Society: While the objective of the judicial process is the attainment of truth, as this Court has reiterated in L. (D.O.), supra, the principles offundamental justice require that the criminal process be a fair one.

It must enable the trier of fact to "get at the truth and properly andfairly dispose of the case" while at the same time providing the accused with the opportunity to make a full defence. (R. v. Levogiannis, (SCC), [1993] 4 SCR 475, per Madam Justice L’Heureux Dube at paragraphs 19 and 20) [53] The Court’s interest in trial fairness has roots in the search for truth. The public’s interest in trial fairness includes a notion ofaccountability, in my view.

In the context of the current motion, accountability would include one person’s accountability to another,witness to accused. [54] Accountability of one person to another is supported by features of the criminal justice process, including face-to-face interactionthat has up until now largely taken place directly and in person. In addition, the physical and interpersonal context of the courtroom

serves as a concrete cue and reminder of its importance and the gravity of any violations. As I hinted above, the solemnity of the court and its role to play in accountability and fairness cannot be reproduced in someone’s living room. [55] In contrast to the courtroom, interactions in virtual spaces, even when they are in real-time, remove people from one another and disconnect them from the court setting.

In my view, this risks a diminution or dilution of the subjective sense of accountability that supports people’s commitment to truth telling and we have no idea what impact it might have on the accuracy of recall, reliability, carefulness and therefore of testimony credibility. [56] The United States Supreme Court summed up the issue perfectly in the case of Coy v. Iowa , 487 U.S. 1012 (1988). That case was about whether or not the vulnerable witness screen violated the accused’s 6th amendment right, the so-called ‘confrontation clause’.

Justice Scalia wrote for the Court, ultimately holding that the witness screen did not violate a constitutional right. He first set out a history of the right to confront witnesses in western legal culture, tracing the right back to Roman times. He then turned to an examination of the role face-to-face courtroom testimony plays. He cited numerous examples of courts acknowledging the value of face to face confrontation and its importance, because it assists the court in its ultimate task of finding out the truth.

After citing all the examples, Justice Scalia seems to take judicial notice of the notion that it is easier to lie behind someone’s back than it is his to his face. [57] My Court did not have the benefit of having this case during argument and I cannot adopt the holding or the reasons behind it because of that. I am not quoting Justice Scalia because I am persuaded by his reasoning. I quote him because his words sum up the issue for me – does the ability to confront witnesses in person benefit the accused and does it tend to ensure the integrity of the fact finding process?

Ascertaining the truth for the purpose of proper disposal of the litigation is a central aspect of fairness. [58] Currently, I do not share the enthusiasm of some of the proponents of a full embrace of virtual litigation. I would like to know more, one way or the other, about the risk to the truth-finding function of the court before declaring trial fairness, in the context of a s. 714.1 application, a completely settled issue. S. 714.1 does not declare the end of in-person testimony. It allows for limited exceptions.

I part with other Courts that have dealt with this aspect of the balancing test, such as the Court in R. v. Hinkley , 2011 ABQB 567 at paragraph 14 , when the Court summarily concluded: There is no dispute the administration of justice remains unaffected by any lost opportunity for an accused to physically face a complainant or other witness. [59] With respect, I think there may be a dispute. [60] As a result, it is my view that this factor – trial fairness – is considerably more important to the balancing exercise than has been acknowledged by other trial court judges who have considered this.

It weighs heavily in the balance for me. [61] In short, when examining trial fairness for the purpose of s. 714.1 applications, the focus should not be the right to personal confrontation for the purposes of cross-examination. The focus should be on all that we don’t know about witness accountability in the virtual context, and how this puts the truth finding function of the court at risk. [62] When I consider all of the circumstances I conclude that there is no reason to allow this application. [63] I am dismissing the application. Released: July 20, 2020 Signed: Justice B. Weagant