R. v. Simeu, 2021 ONCJ 576

CITATION: R. v. Simeu , 2021 ONCJ 576 DATE: August 3, 2021 Information Nos. 1211-998-21-2377-00 1211-998-20-3782-01 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LOIC SIMEU PROCEEDINGS AT TRIAL BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on August 3, 2021, at BURLINGTON, Ontario INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4(1)(a)(

i) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE D.A. HARRIS, ONTARIO COURT OF JUSTICE, DATED AUGUST 3, 2021 APPEARANCES : L. Bolton Counsel for the Crown M. Forte Counsel for Loic Simeu TUESDAY, AUGUST 3, 2021

...EXCERPT OF PROCEEDINGS R U L I N G HARRIS, J. (Orally): Loic Simeu has been charged with: (1) forcible confinement, contrary to section 279(2) of the Criminal Code ; (2) obtaining sexual services for consideration contrary to

section 286.1(1) of the Criminal Code ; (3) assault police, contrary to section 270(1) (

a) of the Criminal Code ; and (4) uttering threats, contrary to

section 264.1 of the Criminal Code . Crown Counsel elected to proceed by indictment with respect to these charges. Mr. Simeu elected trial in the Ontario Court of Justice. At the outset of this trial, Crown Counsel applied for an order pursuant to section 486(2) of the Criminal Code , permitting the complainant to testify using CCTV from inside the Burlington Courthouse but outside Courtroom 12. There was also an application for the assistance of a support person. I have been advised in the last few minutes that the Crown is abandoning both of those applications at this time. Crown Counsel also applied for an order pursuant to

section 714.1 of the Criminal Code , permitting Constable EM to testify remotely from the courthouse in Gore Bay today using Zoom or comparable technology. Finally, Crown Counsel applied for an order pursuant to

section 714.1 permitting MM to testify remotely from her residence tomorrow at 10 a.m. using Zoom or comparable technology. With respect to the applications pursuant to

section 714.1 , that

section reads as follows, quote: [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's 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.... Paragraph (

g) of that

section is not applicable here as there is no request that any evidence be given by audioconference as opposed to videoconference.

I will first address the application with respect to Constable EM. He is a witness in this case. He was one of the officers who attended on the date of the alleged offences and extracted the complainant. He has relevant evidence to give regarding, (1) police efforts to locate her; (2) her demeanour when located by police;

(3) Mr. Simeu's demeanour and conduct at the time of his arrest; and, (4) a spontaneous utterance made by Mr. Simeu. It is anticipated that his evidence will be brief, consuming perhaps an hour of court time. Constable EM is on annual leave and vacationing on Manitoulin Island. Crown Counsel has asked that he be permitted to attend at the courthouse in Gore Bay and testify by videoconference from there. Counsel for Mr. Simeu has consented to this suggestion.

I note that travelling from Manitoulin Island to Burlington would entail several hours of driving plus a two-hour ferry ride or, alternatively, an even longer drive. That is just to travel one way. He will be testifying from a courthouse. Finally, there is no concern that Mr. Simeu's right to a fair and public hearing would be compromised by such an arrangement. After considering all of the above, I was satisfied that it is appropriate for me to order that Constable EM be permitted to testify by videoconference from the courthouse in Gore Bay, and I have made such an order.

That leaves the Crown application with respect to MM. MM is also a Crown witness in this matter. She is expected to give evidence regarding a telephone call from the complainant while the complainant had allegedly locked herself in Mr. Simeu's bathroom. MM will give evidence as to the complainant's demeanour during this telephone conversation. MM also called 9-1-1 on a separate telephone and used the speaker function on both telephones to permit the complainant and the 9-1-1 operator to communicate with each other. Crown Counsel intends to introduce the recording of the 9-1-1 call through MM.

As a result, much of what she will testify to will be corroborated or not corroborated by that recording. MM is eight and a half months' pregnant and her pregnancy is considered high-risk. She has been experiencing Braxton-Hicks contractions, or false labor, which have already necessitated one trip to hospital. Her due date is in late August; however, her doctor believes the baby may be early. She is being seen twice weekly by her doctor at this time. She lives approximately 300 kilometres from the Burlington Courthouse. She has an appointment with her obstetrician today.

She is available to testify tomorrow at 10 a.m. by Zoom or video, which is videoconference. Counsel for Mr. Simeu was content that MM testify by videoconference but argued that she should not do so from her home. He argued that she should testify from a courthouse or a police station, or a victim witness assistance program office. This would ensure that there would be a secure Internet connection, that there would be no distractions for MM, and that it would bring home to her the solemnity of the proceedings.

I am satisfied that all of these concerns can be more than adequately addressed while still allowing her to testify from her home. She has indicated that she has a stable Internet connection. She will be required to testify from a room with a closed door. She will be instructed beforehand that she should make arrangements such that she will not be interrupted by her dogs or anyone or anything else in her residence.

Counsel will be permitted to have her use the camera on her computer or other device to show the room and ensure that she is indeed alone and that she does not have any impermissible testimonial aids nearby. If she wishes to swear on a Holy book, arrangements will be made for her to have a copy of such Holy book available; otherwise, she can affirm to tell the truth. I have no doubt that counsel and I will be able to impress upon her the solemnity of these proceedings without her being in any of the locations suggested by counsel.

In that regard, I note that I have had past experiences with witnesses testifying from their residence, and this was not a problem on those occasions.

On the other hand, I cannot be certain that a woman in her current state of high-risk pregnancy could safely travel, even to a nearby office. I do not wish to do anything that might increase the risk unless necessary. I am also not comfortable in exposing her to any more other people than are necessary in the current COVID environment. After considering all of the above factors, I am satisfied that it would be appropriate to make an order that MM be permitted to testify by videoconference — that is, Zoom — from her residence. Accordingly, I am making that order. ...END OF EXCERPT