R. v. Burden, 2017 ONCJ 78

CITATION: R. v. Burden , 2017 ONCJ 78 DATE: January 23, 2017 Information No. 2811-998-21246-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RYAN BURDEN P R E - T R I A L M O T I O N R U L I N G BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on January 23, 2017 at OSHAWA, Ontario APPEARANCES : K. Pollock Counsel for the Crown K. Dickson Counsel for Ryan Burden MONDAY, JANUARY 23, 2017

...U P O N R E S U M I N G ...excerpt of proceedings R U L I N G O N P R E - T R I A L M O T I O N WAKEFIELD, J : (Orally) This is a pre-trial motion by the Crown to permit the complainant to testify by video. I have reviewed each of the Crown and defence cases and direct that their citations to be added to this Ruling if ever typed up. The Crown asserts that the complainant is currently residing in Dartmouth, Nova Scotia. The defence asserts that the complainant's family and friends reside in the GTA and that the complainant is in Dartmouth on a work experience placement.

The complainant is the crucial witness as the alleged victim on all counts. I am not advised of any other witnesses to the allegations other than potentially the defendant. I note there is no constitutional right whatsoever to have the complainant attend the trial in person. The criteria for the application is set out in

Section 714.1 of the Criminal Code of Canada and reads as follows. The evidence given under

Section 714.2: "A Court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the Court, if the Court is of the opinion that it be appropriate in all the circumstances including: (

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

b) the costs that would be incurred if the witness had to be physically present; and (

c) the nature of the witness' anticipated evidence". Beyond those three non-exclusive criteria I must look at all the circumstances to determine if the discretionary order is appropriate. I

take

Section 714.1 to set the test for this order as appropriateness which I take to be something akin to being satisfied in all the circumstances. Both Crown and defence appear in agreement that the complainant is currently residing in Dartmouth, Nova Scotia. There is no affidavit of the complainant as to her personal circumstances or any prejudice or inconvenience arising from her attending in person. The Crown has asked me to infer inconvenience which I am not prepared to do without the affidavit given the circumstances of her having family here in Ontario.

I do not even know if she would prefer to attend in person given the close location of her family where her travel would be paid for by the taxpayer through the Government. I have not been presented with a cost analysis of personal attendance. I am advised orally that airfare would be about $300.00 each way with Air Canada.

While other airlines may be less expensive, I am prepared to infer that a three-day trial would potentially require two nights hotel accommodation (assume that she does not stay with her family), transit between airports and either hotel or residence locations, three days of meals and airfare each way would amount to between $2,000.00 to $3,000.00 versus video conferencing costs being imperatively negligible. Certainly the taxpayer should not have to bear these costs unless necessary for a fair trial.

The justice system should certainly move with technological advances and I certainly see a transition to most witnesses one day testifying on video in an era of video pleas and sentencings that we already have ongoing. As Justice MaCaulay in R. v. Ryan Turner points out at paragraph 11: " 1 1. While it cannot be said that the virtual presence of a witness in a courtroom is equivalent to the actual presence, that, with respect, does not appear to me to be the only question.

As I suggested to counsel during submissions, Parliament must have intended that the Court receive such evidence except where it is demonstrably contrary to the principles of fundamental justice. In enacting the section, Parliament must have considered the impact of technology generally on the ability to conduct cross-examination and the ability to the Court to assess credibility. I do not know if I personally would go so far to say "demonstrably contrary to the principles of fundamental justice", but rather the test set out in

Section 714.1 whether it be appropriate in all the circumstances. But the fact of the presence of video technology is certainly one of the circumstances that must be taken into account. As such, (as Justice MaCauley continues in paragraph 12: "12. As to the assessment of the credibility, sometimes members of the public, lawyers and perhaps even Judges make the mistake of concluding that the assessment of credibility

depends on observations of physical demeanour during the course of the witness testifying. In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on the physical observations of demeanour is likely to err". In my view that takes the assessment of demeanour too far to one side while demeanour is clearly something that has to be approached with caution, it is one which certainly has a role in the total assessment of any witness appearing at trial.

However here I do not have an evidentiary foundation as to how high a picture definition on the video link up will produce or how defence exhibits will be presented to the complainant without advance disclosure by the defence to the Crown so that arrangements can be made. Given the nature of the complainant's evidence which is crucial to the Crown case and the cross-examination of which is crucial to the defendant, the higher the definition of the picture, the closer to virtual presence of the witness.

To suggest that any recognizable witness is sufficient on video undermines the credibility assessment and demeanour assessment by the trier of fact. Demeanour evidence must be approached carefully, as I said it is not an insignificant part of the credibility assessment. As Justice Elles set out in R. v. Denis Petit commencing at a paragraph eight: "

(8) No doubt, there will be cases where the nature of the evidence to be given, the cost to the administration of justice, or the degree of inconvenience to the witness will be such as to make an order under

Section 714.1 appropriate. For example, where reliability - and not credibility - is an issue, as in the case of most expert evidence, an order under this

section may make sense (see, for example, R. v. Hinkley , 2011 ABQB 567 ). The same way be true where the disruption to a particular witness will outweigh the value of that witness' testimony, as in the case of a busy small town emergency doctor who is called as a minor fact witness in a case, for example". Continuing at paragraph 9: "

(9) But that is not this case. This witness is a complainant in this case. Her testimony is central to and her credibility is crucial in the matter. There is no evidence that

requiring her to testify in North Bay will have any greater impact upon her or the Crown than it would with respect to any witness who lives in Brandon, Manitoba.

(10) In my view, therefore, the negative effect of making an order under

Section 714.1 on the truth-seeking function of the trial court outweighs the benefits of doing so in this case". Here, the lack of an evidentiary foundation as to any inconvenience to the complainant or as to the level of technology being used to balance the video depiction to that of an in-person assessment leads me to conclude the Crown application is not appropriate in all the circumstances here and on the basis of the evidence before me as such the Crown pre-trial motion is rejected. ...excerpt concluded * * * * * * * * * *