R. v. Grimes, 2023 NLSC 6

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Grimes , 2023 NLSC 6 Date : January 13, 2023 Docket : 202001G5337 HIS MAJESTY THE KING v. Krysta Grimes Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Vikas Khaladkar Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 12, 2023 Date of Oral Judgment: January 13, 2023

Summary: The Complainant’s Application, pursuant to

section 486.2(2) of the Criminal Code , to give evidence in this matter by means of CCTV was denied. Appearances:

Jacqueline A. MacMillan Appearing on behalf of the Crown Rosellen Sullivan, K.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Hoyles, 2018 NLCA 46; R. v. L.(M.), 2018 NLSC 35; R. v. Levogiannis, (SCC), [1993]4 S.C.R. 475; R. v. Adeagbo, 2017 NLTD(G) 156 STATUTE CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Khaladkar J.: INTRODUCTION [1] The Accused is charged with sexual exploitation arising out a single incident that is alleged to have occurred between March 1,2018 and June 30, 2018. [2] At the time of the alleged offence the Complainant would have been 16 years of age, perhaps almost 17 years of age. He isnow 21 years of age. [3] The Complainant has provided an affidavit in support of his Application to tender his evidence to the Court remotely by meansof closed circuit television (“CCTV”). The Application is made pursuant to

section 486.2(2) of the Criminal Code, R.S.C. 1985, c. C-46which states as follows: Despite

section 650, in any proceedings 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. [4] In his affidavit the Complainant says that he will not be able to give evidence if he has to be in the same courtroom as theAccused.

He says that the matter has been ongoing for over three years and has been causing him a lot of stress and anxiety. He says thatthe prospect of giving evidence in an open courtroom with the Accused, judge, counsel and members of the public causes him a lot ofstress. [5] The Complainant deposes that his preference is to give evidence from another room in the Courthouse via CCTV. He feelsthat he would be able to give evidence from another room in the Courthouse.

I understood Crown counsel to say during the course of hersubmissions that if the Complainant’s Application is dismissed, he will not be giving evidence at all. [6] I inquired whether Crown counsel wished to have the Complainant testify for the purposes of the Application. CCTV wasavailable in the courtroom for that purpose. Crown counsel was prepared to have the Complainant made available for the purposes ofcross-examination later in the day, but was satisfied to proceed on the basis of the affidavit that had been submitted.

Defence counsel didnot wish to cross-examine the Complainant, and was prepared to proceed without further testimony being adduced. [7] In R. v. Hoyles, 2018 NLCA 46, Hoegg J.A. stated at paragraph 11 that evidence is not always required to support anapplication under sections 486.1(2) or 486.2(2) of the Criminal Code. She qualified that remark later at the same paragraph when shesaid: This is not to say that formal evidence is never necessary, or that it is not a good idea. … [8] Despite the fact that I have not heard from the Complainant directly, I believe that I have sufficient information to give adecision.

I have decided that the Complainant’s Application must be dismissed. The following are my reasons for doing so. analysis [9]

Section 486.1(3) of the Criminal Code sets out the factors that I must consider in deciding whether or not to make an orderallowing for testimonial aids such as giving evidence remotely by CCTV.

[10] I will deal with each in turn based upon the information that I have at hand. The Age Of The Witness [11] The Complainant is 21 years of age. At the time of the alleged offence he was well over 16 years of age, perhaps almost 17years of age. [12] Crown counsel characterized the Complainant as a young person and argued, that on account of his age, accommodationsought to be made for him. [13] I don’t agree. The Complainant has finished high school. The Complainant is old enough to vote. He is old enough to drinkalcoholic beverages legally.

He is old enough to join a police force or serve in the armed forces. [14] I do not view the Complainant’s age as being a determinative factor in arriving at my ultimate conclusion. If he had just turned18 years of age I might be more inclined to give this factor more weight. But a 21-year old person should not expect, on the basis of agealone, to qualify for the accommodations that are sought in this case.

The Witness’ Mental Or Physical Disabilities, If Any [15] Crown counsel indicated, during the course of her submissions, that the Complainant has no mental or physical disabilities.There is no physical or mental reason, therefore, why the Complainant is unable to testify in open court. The Nature Of The Offence [16] I am led to understand by the evidence that has been led so far, and by counsel, that the allegations involve one encounter in theComplainant’s BMW automobile.

I am further led to understand by counsel, based on the Complainant’s statement to the police, that theComplainant instigated the encounter. [17] At the time of the alleged offence the Accused was a substitute teacher in the high school attended by the Complainant. This,and the difference in the ages of the Complainant and the Accused, give rise to the allegation that the Accused abused a position of trustor authority that she occupied vis-à-vis the Complainant. [18] In R. v. L.(M.), 2018 NLSC 35, I granted the complainant’s application to testify by means of CCTV.

In that case, as well, thecomplainant was 21 years of age at the time that she testified. However, in L.(M.) the complainant had been continuously sexuallyassaulted by her step-father from the time that she was 15 years of age until the time that she was 18 years of age. At the time of the trialhe was still her step-father. She was terrified of him and of the prospect of having to divulge the intimate details of their three yearrelationship in his presence. The complainant in L.(M.) testified during the application hearing.

I heard from her, first hand, the impactthat testifying in open court would have upon her and her ability to provide a full and frank account of what had transpired. I do not havethe benefit of the Complainant’s first hand testimony in the case now before me. [19] The Complainant in this case is not being asked to divulge intimate details about a three year relationship. He is being asked toprovide evidence as to what happened on one occasion. The only evidence he presents in support of his Application is that he will not beable to testify if he has to give evidence in the same room as the Accused.

He deposes that the prospect of giving evidence in open courtcauses him a lot of stress. [20] The prospect of giving testimony in open court probably causes most witnesses some degree of stress. The Complainantswears, “That I want to testify, but I will not be able to give evidence if I have to be in the same room as the Accused”. This statement isin the nature of a conclusion with no foundation. [21] In other cases quoted to me, such as R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475 and R. v.

Adeagbo, 2017NLTD(G) 156, there was evidence led from psychologists, victim services workers or others who were able to quantify the impact on thewitness of having to testify in open court. Here, all I have is the Complainant’s conclusion, and I do not find it satisfactory because hehas provided no basis in fact. The Nature Of The Relationship Between The Victim And The Accused [22] At the time of the alleged incident the Complainant was a student and the Accused was a substitute teacher.

That relationshipwould give rise to an inference that there was an imbalance in their relationship. [23] However, based upon the evidence that I have heard so far in this trial, it would appear that the Complainant, at least, treatedthe relationship as more of one of equals. He was, it would appear, a demanding student. He was given to yelling at his teachers (regularand substitute). He asked his teacher to mark him present in class, when he was absent, in exchange for cleaning up the classroom.

Heonce had physical access to the Accused’s telephone. [24] I am advised by Defence counsel that the Complainant, in his statement to the police, intimated that he continued with his lifeas normal after the incident. This does not support his position that he has been suffering from stress. [25] There is absolutely no ongoing relationship between the Accused and the Complainant today. So, as far as testifying isconcerned, this is not a factor that I need consider in making my decision.

Whether The Witness Needs The Order For Their Security Or To Protect Them From Intimidation Or Retaliation [26] This factor was not averred to in the Complainant’s affidavit and, in any case, is not a factor that I need to consider. There is noevidence of any possibility of intimidation or retaliation.

Society’s Interest In Encouraging The Reporting Of Offences And The Participation Of Victims And Witnesses In The Criminal Justice Process [ 27 ] It goes without saying that if, in every case, accommodations were made for witness’ testimony that this would encourage the reporting of offences and would give some comfort to victims and witnesses in the criminal justice process. [ 28 ] Parliament has seen fit, where complainants are under the age of 18 years, or have a mental or physical disability, to mandate under sections 486.1(1) and 486.2(1) of the Criminal Code that testimonial aids in the form of support persons/screens and testifying from remote locations be provided. [ 29 ] Parliament has not, however, seen fit to make those testimonial aids mandatory in the case of persons over the age of 18 who are able bodied and are not suffering from any mental disability. [ 30 ] The standard, therefore, is in-court testimony for persons falling outside the ambit of sections 486.1(1) and 486.2(1) of the Criminal Code .

Any deviation from that norm requires the trial judge’s exercise of discretion in favour of the application. [ 31 ] In order for me to exercise my discretion in favour of granting the testimonial aid sought, I must be satisfied on a balance of probabilities that the granting of the Application would facilitate a full and candid account by the Complainant. [ 32 ] The Complainant’s conclusion that he cannot testify is not supported by anything other than his assertion that he feels stressed and that he wants to put all of this behind him. [ 33 ] In order to convince me to exercise my discretion in favour of the Application I would have been more inclined if the Application was supported by the opinion of a qualified third party who could assess the effect of the Complainant’s stress on his ability to provide a full and candid account of the acts complained of.

I might, similarly, have been more inclined if the Complainant had testified and afforded me the opportunity to assess, for myself, whether the giving of out-of-court testimony would facilitate the giving of a full and candid account of what had transpired. [ 34 ] The material that has been provided to me falls considerably short of the required mark. disposition [ 35 ] For these reasons the Application is dismissed. _____________________________ Vikas Khaladkar Justice