Her Majesty the Queen - v. -, 2017 SKPC 071

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2017 SKPC 071 Date: August 18, 2017 Information: Y991006815 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - N.S.D.

Appearing: Pouria Tabrizi-Reardigan For the Crown Ronald Piché For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act, or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . RULING ON CROWN APPLICATIONS M. MARTINEZ , J

Introduction [ 1 ] The accused, N.S.D., faces sexual assault and sexual interference charges involving H.D., a 13-year-old girl. [ 2 ] The encounter giving rise to these charges is alleged to have occurred about one month after N.S.D.’s seventeenth birthday. [ 3 ] I was scheduled to hear N.S.D.’s trial on July 10, 2017. [ 4 ] On about June 20, 2017, a Victim/Witness Specialist met with H.D. and her mother. [ 5 ] On June 26, 2017, the Victim/Witness Specialist contacted the Crown prosecutor and recommended that H.D. should be allowed to testify from outside the courtroom with the assistance of a support person present. [ 6 ] The Crown prosecutor brought these applications on the next available Île-à-la-Crosse sitting day which was June 28, 2017.

On that day, the presiding judge cancelled the upcoming trial but adjourned the application to the date on which the trial had been scheduled to be heard. [ 7 ] The accused consents to most of what the Crown seeks but opposes the following alternative orders, namely that H.D. be allowed to testify:

a) from outside the Île-à-la-Crosse court room by closed-circuit television ( CCTV ) from Saskatoon, or

b) from behind a screen in the courtroom but without any members of the public present during her testimony. [ 8 ] Defence counsel submits that I should not allow H.D. to testify by CCTV but that I should allow her to testify from behind a screen in the court with the public present. [ 9 ] For the reasons that follow, my decision is that H.D. may testify from outside the courtroom by CCTV with a Victim/Witness Specialist as her support person. Because the Île-à-la-Crosse court building is not equipped with the necessary CCTV equipment, she may testify by CCTV from a properly equipped “soft-room” in Saskatoon.

A Preliminary Comment on Procedure [ 10 ] The Crown applies under sections 486 and 486.2(1) of the Criminal Code , R.S.C., c C-34

for the orders it seeks. [ 11 ]

Section 486 governs applications to exclude the public from the courtroom during all or part of a trial. Subsection 486.2(1) governs applications for orders allowing young witnesses to testify from outside the court room or from behind a screen shielding them from the accused. [ 12 ] Pursuant to section 486(1.1) and

section 486.2(2.1), t he Crown’s applications must be brought before the trial judge unless no judge has been assigned to preside over the trial. In the latter situation, any other judge with jurisdiction in the relevant judicial district may hear the applications. [ 13 ] This application came before me on the original trial date. Although I was the judge scheduled to sit in the Île-à-la-Crosse circuit court that day, I was not, and am not, specifically assigned to preside over N.S.D.’s trial, and, at this time, nor is any other judge assigned to hear his trial.

For this reason, these applications came before me in my capacity as a judge “having jurisdiction in the judicial district where the proceedings will take place.” Legal Framework [ 14 ] An order allowing a young person to give shielded testimony is mandatory unless the order would interfere with the proper administration of justice; see

section 486.2(1) : Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice . [italics added] [ 15 ] A defendant who opposes the order for shielded testimony bears the burden of establishing that the shielded testimony, or the proposed mode of shielded testimony, interferes with the proper administration of justice; see R v Alam , 2006 ONCJ 593 at para 20 : Significantly, the new provision in

section 486.2(1) dispenses with the need to provide an evidentiary basis for the order. The subsection creates a presumption that a child or ‘a witness who may have difficulty communicating evidence due to a physical or mental disability’ can testify from behind a screen or outside the courtroom. Unless the order would prejudice the accused’s right to a fair trial or otherwise interfere with the proper administration of justice, the court ‘shall’ make the order where requested to do so by the Crown or the witness.

The Crown may have an evidentiary burden if the existence of a mental or physical disability that may impact the ability of a witness to testify is disputed, as it was in this case.

However, once the presumption is engaged, the Respondents bear the burden of establishing that the use of a testimonial aid would interfere with the proper administration of justice . [underlining added] [ 16 ] An order allowing a young person to testify while shielded from the accused will not interfere with the proper administration of justice unless the shielding, or the mode of shielding, will infringe the accused person’s right to a fair trial or to make full answer and defence: see R v Alam , supra at para 29 I interpret the ‘proper administration of justice’ in the context of these provisions as requiring a proper balance between the societal interests in the attainment of the truth, including protection of vulnerable witnesses to facilitate their full testimony, and the Respondent’s fair trial interests, including the right to make full answer and defence.

This

interpretation is consistent with the legislative purpose of Bill C-2, as expressed in the

Preamble… A portion of the

Preamble reads as follows:

WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use ofprotective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights ofaccused persons are respected; [17] The decision about the mode of shielded testimony used at trial lies with the trial judge – or in this case, with the judge who hears the application – no matter whether the Crown’s application includes more than one option.After considering all relevant factors – such as the witness’s age, the nature of the allegations, and the courtroom layout – the judge mustchoose the most appropriate mode of shielded testimony.

In so doing, the judge may choose a mode other than that preferred by theCrown or the witness, but is not restricted to choosing the mode that interferes least with defence counsel’s ability to observe and interactwith the witness; see R v Brown, 2010 SKQB 420 at paras 17-21; R v CTL, 2009 MBQB 266 at paras 18-20; R v T(DN), 2015 SKQB408. [18] When the witness is under the age of 18, the Crown need not provide any evidence to justify the shielding order it seeks.

When the accused person opposes the mode of shielding proposed by the Crown, the Crown shouldprovide reasons why the court should prefer one mode over another, which may include leading evidence relevant to the issue. [19] In this particular case, one of the Crown’s proposed modes of shielding includes an application to exclude the public during the witness’ testimony and for this reason it must provide an evidentiary basis for thisapplication.

Where there is no dispute about the relevant facts, that evidence may come from Crown counsel’s submission (which iswhat occurred in the case before me); see Canadian Broadcasting Corp. v New Brunswick (Attorney General), [1996] 3 SCR 480, (SCC) at paras 70 and 71. [20] The evidence provided by the Crown touches on both the issue whether to exclude the public and the reasons why CCTV is the preferable mode of shielding H.D.’s testimony. Application to Exclude the Public [21] Crown counsel submitted the following evidence in support of his applications.

All of the evidence came from the report he received from the Victim/Witness Specialist who met with H.D. and her mother: • After the incident involving the accused, H.D. was harassed at her school in Île-à-la-Crosse as well as on social media (for thisreason, she and her mother moved to the City of Saskatoon. • As a result of the incident and its aftermath, H.D. suffers from depression, anxiety, and panic attacks. • H.D. is worried and frightened about testifying in open court – she became tearful when told that she would have to answerquestions about the incident. • H.D. is concerned that the experience of being in the courtroom will be overwhelming and for this reason she would not be able tofocus and provide a full and candid account of what happened.

• She is fearful about seeing the accused, his family, and friends. • She says that she fears for her safety. [ 22 ] One of the cornerstones of Canada’s system of justice is that criminal trials are open to the public. This openness and transparency is not something that should be disturbed without good reason.

An order excluding the public from any part of a criminal trial may only be made when “it is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security”; see Criminal Code , section 486(1). Subsection 486(2) lists the criteria a judge must consider before ordering that the public be excluded from a criminal trial:

a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process,

b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings,

c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made,

d) whether the witness needs the order for their security or to protect them from intimidation or retaliation,

e) the protection of justice system participants who are involved in the proceedings

f) whether effective alternatives to the making of proposed order are available in the circumstances,

g) the salutary and deleterious effects of the proposed order, and

h) any other factor that the judge or justice considers relevant. [ 23 ] In other words, before excluding members of the public from a trial, a judge must: 1) consider the available options and consider whether there are any other reasonable and effective alternatives available, 2) consider whether the order is limited as much as possible, and 3) weigh the importance of the objectives of the particular order and its probable effects, against the importance of the open court principle and the limits such an order would have on related fundamental freedoms protected by the Canadian Charter of Rights and Freedoms (such as freedom of the press), so as to ensure that the positive and negative effects of the order are proportionate. [see New Brunswick at para 69]

[ 24 ] I am not surprised that H.D. is concerned about testifying in open court, or of being directly exposed to the accused, and his family and friends, or of having to recount the incident in public and answer questions about it. Anyone would be. Being only 14 years of age undoubtedly heightens her anxieties and fears. However, there is no evidence that she will be in any physical danger if she testifies in open court.

Further, there is no evidence that appropriately placed screens would not shield her from the accused and from the public in the courtroom. [ 25 ] Without more, the Crown has not met the evidentiary burden necessary to justify an order excluding the public from the courtroom when H.D. testifies. This leaves me with two choices: allowing the witness to testify by CCTV, or requiring that she testify from behind a screen in the Île-à-la-Crosse courtroom.

CCTV or Screen? [ 26 ] While the Crown’s evidence is not sufficient to justify closing the courtroom to the public if H.D. testifies in person, it certainly provides compelling reasons why I should allow her to testify by CCTV. [ 27 ] I expect that it is possible to set up more than one screen in the Île-à-la-Crosse courtroom so that H.D. can be shielded from the view of the accused and from the public gallery. And she may be able to enter the building in which the courtroom is located from a different door than that used by the public.

However, that building houses the office of other government services and is open to the public, has only one small lobby area, and only one entrance into the courtroom. For these reasons, it would be nearly impossible for H.D. to make her way to the witness stand without encountering, if not N.S.D., then some of his friends and members of his family. Allowing H.D. to testify by CCTV from Saskatoon eliminates these risks. Also, it should alleviate some of her other fears and anxieties about testifying. [ 28 ] Defence counsel’s argument against allowing H.D. to testify by CCTV is two-fold.

First, he submits that his ability to cross-examine the complainant will be impaired if she is not in the courtroom, as will his (and presumably, the trial judge’

s) ability to assess her demeanor during her testimony. Second, the complainant’s apparent age at the time of the incident may become an issue at trial and the presiding judge may not be able to properly assess that question without seeing her in person. [ 29 ] For the following reasons, neither of these potential problems persuade me to order that H. D. should testify from a screen or screens in the Île-à-la-Crosse courtroom. [ 30 ] I have presided over several trials where witnesses have testified by CCTV. In my experience, modern CCTV equipment, most especially in soft-rooms, works extremely well.

Generally, I find that young witnesses are more relaxed and forthcoming when they appear by CCTV than when they testify in open court surrounded by, what they undoubtedly perceive as, intimidating adults. So far, I have not found it difficult to observe and assess the witness’s demeanor.

Further, I have not noticed defence counsel having any difficulty cross-examining child witnesses by CCTV. [ 31 ] Finally, and most importantly, if the trial judge finds that H.D. testifying by CCTV interferes with N.S.D.’s right to a fair trial, whether because the question “How old does she appear to be?” cannot be answered without seeing her in person, or for any other reason, it is within the trial judge’s general trial management powers to amend this order as he or she sees fit.

__________________________ M. Martinez, J.