R. v. Turnbull, 2017 ONCJ 309

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, 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. Turnbull , 2017 ONCJ 309 DATE: May 8, 2017 BETWEEN: HER MAJESTY THE QUEEN — AND — NATHAN TURNBULL & GEORGE KRUZIK Before Justice S.R. Shamai Application for Orders under

Section 486.2(2) , Criminal Code ,

Heard on May 1-4, 2017 Ruling released on May 8, 2017 Susan Orlando.................................................................................... counsel for the Crown Earl Glasner.......................................................... counsel for the accused George Kruzik David Adanja…………………………………counsel for the accused Nathan Turnbull Shamai J.: [ 1 ] Crown applies for orders under

Section 486.2(2) of the Criminal Code at the outset of a trial in this Court, wherein Mr. Turnbull and Mr. Kruzik are charged with offences in the nature of human trafficking. The accused are jointly charged on a ten count information with two offences: Trafficking in Persons by Recruiting and Procuring. Nathan Turnball also faces the following charges: Trafficking in Persons by Exercising Control, Procuring/Exercising Control, Financial/Material Benefit from Trafficking a Person Over 18, Material Benefit from Sexual Services, and Advertising Another Person’s Sexual Services.

George Kruzik also faces the following charges: Financial/Material Benefit from Trafficking a Person Over 18 and Material Benefit from Sexual Services. The charges arise during the time between September 1, 2014 and April 13, 2015. A significant Criminal Code amendment, affecting mandatory minimum periods of incarceration, came into force on December 5, 2014. As a result, the charges have been drafted to reflect time periods until and after the amendment. [ 2 ] The complainant in this case is a young woman, CB, who is the same age as the accused parties.

Crown seeks an order to permit her to testify outside the courtroom, from a closed circuit television room, adjacent to the courtroom, and to testify with a support person “close to her” while she testifies. [ 3 ] The Application is opposed by both Accused, Respondents on this Application. [ 4 ] The support person, whom Crown seeks to have “close” to CB while she testifies, is Michele Anderson, a Human Trafficking Advocate employed by Covenant House. Crown indicates in her application, and this is supported by Ms.

Anderson’s letter filed in support of the application, that she has worked with CB since May 2016, in her role “to provide support, counselling and advocacy for victims of Human Trafficking and Sexual Exploitation”. [ 5 ] Crown relies on the content of her Application, which details the Applicant’s position with regard to CB’s mental health issues, and her specific concerns which arose after she testified on an unrelated preliminary inquiry, where Mr. Turnbull was charged.

Crown tenders the Affidavit of Detective Constable Christopher Hoeller, which detailed the Crown’s allegations further, and some further particulars concerning his understanding of Turnbull’s knowledge of CB’s mental health issues. [ 6 ] Det. Cst Hoeller’s affidavit has attached to it a letter written by CB in July 2016. It is titled “Reasons for testifying via CCVT” (sic). It is not sworn. It is attached to a letter, dated August 18, 2016, “To Whom It May Concern”, from Michele Anderson. Det.

Cst Hoeller testified on the Application, by way of cross-examination on his affidavit. [ 7 ] Many issues are raised with the record upon which Crown relies in the application, and indeed, a perusal of the documents filed discloses many issues, some more significant than others. I note that no original affidavit is filed, only copies. The affiant acknowledged in cross-examination that in fact, it was sworn the day before the jurat shows it to have been sworn. The officer affirmed to tell the truth on the application, but swore his affidavit. The letters of Ms. Anderson and CB are also not originals.

They are not properly marked as Exhibits to the affidavit, although they are referred to in Det. Cst Hoeller’s affidavit as such: they do not bear any indication on their face that they are indeed the exhibits referred to in the affidavit. That is my understanding of how documents become, properly, exhibits to an affidavit. Further, while Det. Cst Hoeller indicated in his testimony on cross-examination that he understood the letter of CB to have been received by Ms. Anderson, neither document tells me that.

Other issues are raised by the Respondents as well, more in terms of the evidence which was NOT tendered. [ 8 ] In fact, the essence of the Respondents’ position on the application is that Applicant/Crown fails to adduce admissible and persuasive evidence meeting even the low threshold of a balance of probabilities, on the statutory preconditions for the order, as contained in

Section 486.2(2) . [ 9 ] By way of response to the Application, an interview of CB, conducted by DC Hoeller on April 26, 2016, was filed as an exhibit and played in open court. An audio tape, a DVD from the digital recording generated in court at Mr. Turnbull’s recent preliminary hearing on unrelated charges was filed as well. The recording was CB’s testimony in cross-examination at Turnbull’s preliminary inquiry on other charges.

They are unrelated, although CB was present at the time of his arrest, and in fact was herself arrested though later released without charge. [ 10 ] Respondents’ position is, in effect, that the Application is disingenuous and unnecessary to the Court acquiring a full and candid account from CB. They say, in essence, CB was able to testify on the preliminary hearing, with Mr. Turnbull and presumably others in the courtroom, so why not at trial? Similarly, the interview with DC Hoeller last year is presented to provide the Court with an appreciation, both visual and by audio, of the demeanour of the witness.

It is noteworthy that the interview took place at a time that CB was facing Human Trafficking charges along with Turnbull and another, and that the police interview was conducted on the eve of withdrawal of charges against her. (I understand from counsel that the charges in that prosecution against Turnbull were stayed.)

[11] Respondents take particularly vigorous exception to the Application for an order that Ms. Anderson be “close” to CB as shetestifies, in order to offer support. [12] To more fully understand the media by which Crown would seek to implement the orders she seeks, and because an upgrade ofthe facility for CCTV testimony has recently been completed in this Courthouse, and to ensure that counsel and I all had that sameinformation, I asked for an explanation of the technology and to look at the CCTV room, where, if ordered, the support person wouldstay close to the witness as she testified.

Counsel expressed concerns that the support person might be able to communicate in someinappropriate way with the witness as she testified, or that if the Court required to hear from counsel in the “absence of the witness”, itwould be the support person who controlled the mute button from the CCTV room. A high level of mistrust of Ms. Anderson wasimplicit in the Respondents’ position, although it is my understanding that Ms.

Anderson is trained for precisely the role of supporting avulnerable witness through the process of testifying in court, and is specifically trained to not discuss allegations before the court. [13] Our investigation of the facility now available to J court at the Old City Hall may be summarised as follows: there are two verylarge screens mounted on the wall to the right of counsel table, visible to all parties in the courtroom, and in addition one monitor on thedais. One of the large screens can be used to play a recording, if required, and the other projects from the witness room, adjacent to thecourtroom.

There are cameras in the courtroom, positioned so that the witness may see the lawyers and the judge, but not the accusedparties, subject to their positions in the courtroom, of course. There is a document camera enabling documents or photographs to beshown to the witness, and there is a tablet in the witness room enabling the witness to mark the document, if asked to do so, in a mannerwhich is simultaneously projected back to the courtroom. The small witness room has a half-circular table, with three chairs, all facing alarge screen. On it are projected the images of lawyers and judge in the courtroom.

An audio link enables voice communication. A mutebutton is in the witness room, so that if requested, it can be activated by someone in the witness room, so that those in the witness roomdo not hear exchanges intended to be in the “absence” of the witness”. The mute function can also be enabled by the jurist, from thecourtroom. [14] The legislative scheme which governs the application was amended by the Victims’ Bill of Rights, a package of amendments tothe Criminal Code and other laws, and in the case of

Section 486.2(2), it came into force in July 2015. It has a significant impact on thisapplication as it changes the test which governs the making of an order. At present, the

Section reads:

(2) Despite

section 650, in any proceeding against an accused, the judge or justice may on application of the prosecutor in respect of awitness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that wouldallow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full andcandid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.(emphasis added) [15] Previously, the legislation permitted the order in similar terms if it was NECESSARY to obtain a full and candid account by thewitness.

Now, the

section permits the order to be made if the judge or justice is of the opinion that the order WOULD FACILITATE thegiving of a full and candid account by the witness. The additional ground contemplated by the phrase “otherwise be in the interest of theproper administration of justice” is new to the

Section as of July 2015. [16] The test rests on a different determination, that of the facilitation of a full and candid account, rather than its necessity to a full andcandid account. Further, it appears that a completely separate ground is set up in

Section 496.2(2) as it now reads, with respect to anorder being “otherwise” in the interest of the proper administration of justice. [17] The evidence must still show on a balance of probabilities that the Applicant has established a basis for the order. [18] As I will embark on the trial of these charges shortly, I intend to be very brief in my assessment of the evidence, in order not toprejudge issues of credibility or anything else, particularly on a limited record.

Indeed, the limitations of time make it hard to dootherwise. [19] Respondents point out that I have no evidence, even a letter, from a mental health professional, to support the Application inrelation to the impact of CB’s mental health issues insofar as they affect her testimonial ability. I note that while the authorities reviewseveral forms of evidence, which may form the foundation of the Order sought here, our Court of Appeal gave broad leeway to the courthearing the matter, in the case of R. v P. M., (ON CA), [1990] O.J.

No. 2313, at p.5: Section 486(2.1) enabled the trial judge to make the order sought if he were “of the opinion that the exclusion (i.e., the use of the screen)is necessary to obtain a full and candid account of the acts complained of from the complainant”. It is clear, of course, that what counts isthe trial judge’s opinion and not that of a reviewing court and, I think, substantial latitude should be accorded to the trial judge indeciding whether or not to form the requisite opinion. He or she is the one who has had the advantage of hearing the evidence and seeingthe witnesses give it.

His or her decision on this particular issue is not, in my view, strictly speaking, one of discretion, but, rather, one ofjudgment. The trial judge is not, however, empowered to form the requisite opinion unless there is an evidential base relating to thestandard of necessity referred to in the subsection which is capable of supporting the opinion. [20] The succinct statement of the Alberta Court of Appeal in the case of R. v. Smith (1993), 1993 ABCA 167 , 141 A.R. 241provides helpful guidance, in a case where the application record was not unlike the record here.

On a preliminary hearing, applicationsunder the predecessor

section were made with “the unsworn statement of the prosecutor”, who provided her observations of the anxietiesof each child to the courtroom setting and the reactions of each to strangers entering the courtroom. The observations were based as wellon “earlier” discussions with the child complainant. Justice McClung speaks for the Court of Appeal: “…the unsworn statements of counsel, where accepted by the judge, may serve under s. 486 C.C. as a sufficient foundation for the judgeto make the order that is in dispute. Equally they may not. The judge may demand evidence in traditional form.

What is sufficient will beresolved by “…the opinion of the Court” (s.486.1 and 2.1) as to what the needs of the case are.” [21] The Respondents rely on the case of R. v. Alam and Telfer, 2006 ONCJ 593, to contend that in the absence of the testimony of amental health professional or other expert or through the direct testimony of the witness, using the testimonial aid under consideration, as

required by s. 486.2(6). Justice Marin refers to that requisite basis as one that could be established through that type of evidence. She then refers to the decision of the Alberta Court of Appeal, cited above, where the submissions of counsel may suffice in some cases. In the case before Justice Marin, on preliminary inquiry, the evidence was uncontroverted that the complainant had a gunshot wound to the head and neck, the very subject matter of the charges before the Court hearing the application. His injuries were “significant and complex injuries as a result of being shot in the neck and left temporal lobe”.

The resulting deficits were, unsurprisingly, serious in their impact on his cognitive and intellectual abilities. An uncontested medical report documented these impairments which might affect his ability as a witness. The Application before Justice Marin was under the predecessor regime to the current provisions. Her concerns were not so much with the quality of the evidence regarding the ability of the witness and the impact on his testimony as with issues concerning the fair trial interests in facing one’s accuser.

Thus, while I have great respect for my colleague’s opinions and analysis as expressed in this decision, the issue of the nature of the evidence, expert or otherwise, was not squarely before her. In any event, she did not opine, in her review of the legislative regime, that ONLY expert opinion evidence could satisfy the evidentiary burden under the section. [ 22 ] My colleague Justice Renaud, in the case of R. v. Lanthier , [1997] O.J. No.4238 , addresses the question of evidence to show mental disability on an application under the analogous legislation to this

section at the time. In that case, the complainant on a sexual assault allegation was over 18 years of age, but had what was termed by the investigating officer as “obvious intellectual deficits” which amounted to “a mental disability, which could impair or hinder her ability to communicate evidence, in such a situation, if a screen is not in place …”. His view was that the non-expert evidence was sufficient to demonstrate on a balance of probabilities, that the order be granted.

His view of the choice of Parliament to use the phrase “mental or physical” disability, at paragraph 62, signaled Parliament’s intent to “not wish to impose a requirement that a court receive expert opinion. Indeed, different considerations would apply had Parliament employed the expression “mental disorder”…”.

His Honour, well known on our Bench as a meticulous legal researcher, surveys numerous contexts in which the phrase “mental disability” is used, and concludes specifically, that “mental disability describes a condition which is apparent to a lay person” and therefore, no expert assistance is required. [ 23 ] Respondents commend the decision in the Manitoba Court of Appeal in R. v. B.C.H, [1990] M.J.

No. 363 , as persuasive authority for the proposition that expert evidence is required in order for the Court to determine whether any necessity exists that a witness might testify outside the courtroom, in order to obtain a full and candid account of the allegations. In that case, the Appellant was unrepresented at trial and on the motion. The procedure proposed involved the testimony of an eight year old girl.

Unlike the sophisticated equipment in place in the present case to facilitate the Appellant’s cross-examination, an awkward procedure was used, whereby a “friend” of the accused, not legally trained, cross-examined the child complainant, who was in a CCTV room. The court queried other aspects of the proceeding, as the equipment enabled the child to hear the accused asking questions, notwithstanding the role of the “friend”; and there were other procedural and substantive shortcomings in the trial, many stemming from the lack of understanding and instruction of the Appellant as to the nature of a trial proceeding.

Thus, the court’s concern about opinion evidence from others than experts on the issue relating to testimony from outside the courtroom must be understood in its context. And the larger context, for me, includes the decisions of the Ontario Court of Appeal and the Alberta Court of Appeal, which I refer to above. [ 24 ] In this case, I have not only the unsworn material including the fulsome application itself. I have the affidavit of DC Hoeller and his cross-examination on it. I have the letter of Ms. Anderson who at the time of writing had been assisting the complainant for three months to that point.

I have CB’s letter, speaking to the issues on an application of this sort. I have the video recording of a statement taken by DC Hoeller, just over a year ago, with the complainant. I have the audio of her cross-examination by counsel for Mr. Turnbull on a recent but unrelated matter. As well, I heard somewhat extensive reference to a statement taken from CB when she was arrested on unrelated human trafficking charges, since withdrawn against her, in April 2015. [ 25 ] DC Hoeller’s testimony shows him taking on a role of advocate for the witness.

Counsel expresses concern about Hoeller’s evidence about the anticipated response of the witness to cross-examination in the presence of the defendant Turnbull, her one-time boyfriend turned pimp, in the Crown’s allegation, and her schoolmate Kruzik, who the Crown alleges facilitated the trafficking activity by photographing the complainant and transporting her to “dates”. Counsel for the Respondents suggest that the concerns of the officer become inflated from a concern about the witness’s stress and anxiety about testifying, to a concern for her fear, to intimidation – and ultimately to a concern that Mr.

Turnbull’s counsel himself might cause the witness to suffer an emotional impact affecting her ability to give a full and candid account to the Court. It was for this reason that counsel made the audio, from the DRD of the preliminary inquiry, an exhibit, as some evidence of the manner in which the witness responded to cross-examination by Mr. Adanja. [ 26 ] I have already indicated, in the course of submissions, that Mr. Adanja’s conduct as demonstrated by audio, and by his general approach to his profession, do not give me concerns which need to be defended.

Certainly he is focused and sometimes animated in his cross-examination, but not in a manner beyond the bounds of courtroom conduct in 2017. I expect that should there be a concern with the manner of cross-examination, Mr. Adanja will respect the direction of this Court. [ 27 ] DC Hoeller acknowledged in his cross-examination that his assertions regarding the complainant’s fear and sense of intimidation were the conclusions he drew from his contact with her.

He expressed his understanding that the victim witness advocate would be the one to describe more fully the sense of fear or intimidation the complainant might have in testifying. He acknowledged the possible shortcomings of his testimony, having regard to the few notes he took of his contact with the complainant, and his involvement in investigations of the steady stream of new other individuals alleging this type of criminal behaviour. [ 28 ] The fact that the complainant was able to hold her own, so to speak, in cross-examination in another proceeding, subsequent to the letters of Ms.

Anderson and CB, does not end the inquiry encompassed in this Application. The subject matter of the trial involves conduct of an intimate and embarrassing nature to the complainant. The complainant specifically refers to her concerns which arose after she testified in the other proceeding, as she learned that Mr. Turnbull had been attending at her former workplace looking for her, and attempting to contact her through friends, despite a bail condition that he not have contact with her.

It appears that her belief in this regard was not fanciful, and despite what counsel advises about the disposition of the breach recognizance charge in that case, it is understandable, in my view, that she would have heightened concerns about potential ramifications for her in testifying in this proceeding. [ 29 ] As well, the complainant expresses concern about the family and friends of Applicant Turnbull being in the courtroom, were she

to testify in open court. Given the involvement of Mr. Turnbull’s mother and his sister during the relevant period, about which I have heard some evidence, this concern is not without some possible foundation. [ 30 ] The complainant was 18 years of age when the activity underlying the allegations took place. She is now twenty. CB has provided some detail in her letter, on the video interview and to Ms. Anderson about the mental health issues she endures. She describes the fears she has of Turnbull, in light of her history of relationship with him and her concerns that he was “stalking” her, more recently.

She says in her letter entitled “Reasons for Testifying via CCVT (sic)” that “Nathan Turnbull represents the most traumatic period of my life, and therefore I would feel extremely vulnerable sitting in front of him to testify… Not only has Turnbull taken advantage of/victimized me, but has also stalked me by harassing my friends to contact me for him…”. The prospect of his friends and family in the courtroom frightens CB as well. [ 31 ] The videotaped interview with CB on April 26, 2016 showed me a young woman who acted differently and spoke differently depending on what she spoke about.

Her eyes appeared to be circled with darkness. She appeared sometimes unable to make eye contact, and appeared to be upset, almost excruciatingly so, when talking about aspects of her experience in relation to the alleged offences. At other times she appeared more collected. In itself, the videotaped interview gives me little to help me decide that Application. I do not wish to form any fixed views of the complainant’s conduct or her credibility, at this stage, unless absolutely necessary on the application, and I believe that I need not go far in that regard.

As with the audio of the bail hearing, the extent to which the recording is helpful must factor in the context in which the interview/cross-examination was conducted. No one is suggesting that the young woman is incapable of communicating the evidence. Indeed, she appears to have good communication skills. She appears also to have some significant and long standing mental health issues. She claims that she will be affected by coming to court, facing Mr. Turnbull in the courtroom while she testifies in-chief and in cross-examination.

She says that in combination with her mental health issues, she will be less able to provide a full and candid account: in her words, “I fear losing composure and/or feeling too intimidated if I see these people and therefore may not be able to express myself well and tell my full story”. [ 32 ] The Application seeks an order permitting Ms. Anderson to sit close to the complainant as she testifies. The basis for this order is the assertion under oath of DC Hoeller, that CB “indicated” to him that she would like Ms.

Anderson to be close with her when she testifies at the trial “so that she feels comfortable enough to give a full and candid account of her evidence”. Neither Ms. Anderson nor CB refers to this in their letters. [ 33 ] The role of the “Human Trafficking Advocate”, Ms. Anderson’s title on her Covenant House stationery, was described in the letter “to provide support, counselling and advocacy for victims of Human Trafficking and Sexual Exploitation”. I queried Crown about the extent to which this role is similar to the Victim Witness Assistance Programme (VWAP) workers at the courthouse.

I was told the position is similar, and that VWAP workers indeed avoid any discussion of the substance of the charges before the court, so that they can provide support and information without becoming potential witnesses themselves. Ms. Anderson’s role appears to be somewhat different, notwithstanding the similarities. She introduces her role as including counselling; she refers to CB’s “difficult history with Nathan” in her brief letter.

At no point does she ask for the opportunity to sit close with CB, much less describe in her letter why or how that would have significance in facilitating CB in giving of a full and candid account to the Court. [ 34 ] I wish to refer to a recent decision under the newly revised provision under

Section 486.2(2) which governs this application. In the case of R. v. K.P., [2017] N.J. No. 69 , Justice Gorman of the Newfoundland and Labrador Provincial Court considers the effect of the amendments. He says he considers the deletion of the word “necessary” as significant: para.24. He goes on to consider the proper

interpretation of the word which effectively replaces the old necessity test: facilitate. At paragraphs 25 to 28, Justice Gorman reviews recent

interpretations of that term in other provinces. I glean from that discussion that facilitate means, plainly, to make easy or easier; he notes that other jurists have commented that is a “very low threshold” for the issuing of the order; and that the Superior Court in Ontario ( R. v. Jimaleh, [2016] O.J.

No. 5133 ) viewed the lowering of the threshold an indication of “intention to make testifying by closed circuit or behind a screen a more commonplace occurrence”. [ 35 ] Finally I would refer briefly to the independent basis on which the Court on an application under s. 486.2(2) can grant the order sought herein. It is an independent basis for an order that it would be in the interest of the proper administration of justice, to allow relief under the section.

There is much to be said about the extent to which complainants have historically not come forward, especially in sexual offences, according to some, to report such offences and testify, and the concurrent extent to which protections such as are offered under this

section might affect their reporting and testifying. Indeed, it appears that such concerns were touched on, in the initial statement taken by police from CB, in 2015. Time does not permit me a thorough exploration of this issue, although I would reserve to myself the possibility of expanding this aspect of my decision on the application.

In my view, the Application can be decided without resort to these important considerations. [ 36 ] The Application can be properly dealt with under the first test set out in the section: would it facilitate the taking of a full and candid account of the evidence, to permit the complainant to testify out of court? I answer that question easily: yes. I have an ample, if not perfect record before me. The complainant indicates in her own words the mental health issues she has suffered. Ms. Anderson reflects their discussions about her mental health struggles.

CB indicates the same to the officer in the April 26, 2016 statement. The nature of the offences alleged, and her relationship, especially to Mr. Turnbull, makes it easy to understand that it would facilitate a full and candid account if she were to testify from outside the courtroom. His particular knowledge of her vulnerabilities, quite apart from the stages of intimate and allegedly coercive conduct, are factors which speak for themselves, in giving effect to the legislation as it appears to be intended.

The record tells me that this intention has been consistently expressed by the complainant, from last August to more recent preparation meetings with Crown and officers. The fact that in other unrelated proceedings the witness has testified without testimonial aid does little to affect my view. The Crown has to establish on a balance of probabilities that CB will be facilitated in giving her evidence by the device of testifying outside the courtroom.

Given the excellent facility we appear to have available to us, I have no doubt that the accused will be able to make full answer and defence via the CCTV facility here. [ 37 ] I am equally convinced that the Crown provides virtually no basis for an order that Ms. Anderson sit close by CB as she testifies. Although, as jurists have noted, the submissions of counsel may in some cases suffice for an order under this

section and its predecessors, the submission of counsel is particularly barren when supported by the suggestion in cross-examination of the officer, unsupported by the letter seeking testimonial aid by the very person whose presence is sought, and that letter mentions nothing about her

presence by the witness, while the latter testifies. [ 38 ] Further, the relationship of Ms. Anderson to the witness appears to go further than simply being a victim/witness support person. It appears that Ms. Anderson has acted as a counsellor, and has knowledge of some of the specifics of the case. This compromises her participation in the CCTV room, in my view. This is particularly so, as the witness is twenty years of age – she is not a child – and has not herself expressed a particular need for the physical presence of the support person in the room with her.

No doubt, the witness may be advised that an appropriate support person is available to her, and that she can request breaks as needed, as she testifies, but she will also be advised that, as with all witnesses, she must not discuss the evidence, in view of the order excluding witnesses, and that there is the general rule concerning cross-examination, when that time comes. To have her counsellor, who is already familiar with some of the sensitive, personal issues raised by the allegations, sit close with her as she testifies, raises real, or at the very least, perceived difficulties.

The perception that justice is done is something I do not ignore in considering the motion. I am not granting that part of the Application. [ 39 ] In the result, the complainant CB may testify from outside the courtroom, but without the close presence of Ms. Anderson. Released: May 8, 2017. Signed: Justice S. R. Shamai.