R. v. Wight, 2011 ONCJ 414

WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(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. COURT FILE No.: Sudbury 59-73 DATE: 2011·07·25 Citation: R. v. Wight , 2011 ONCJ 414 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFERY WIGHT Before Justice RANDALL W. LALANDE Heard on July 19 and 22, 2011 Reasons for Judgment released on July 25, 2011

Kara Vakiparta .......................................................................................................... for the Crown P. Berk Keaney/Michael J. Venturi ................................................... for the accused Jeffery Wight LALANDE J.: RULING ON AN APPLICATION 1: INTRODUCTION [1] Jeffery Wight is charged on an eight count information.

The offences include, sexual assault, sexual touching, sexualinvitation, possession of child pornography, sexual touching in a position of trust, inciting to commit bestiality, assault and distribution ofchild pornography. [2] The complainant named in all but two counts is A.T.-G.. Her birth date is July […], 1996.

She is 15 years old. [3] The Crown brings an application to adduce evidence from A.T.-G. by way of closed-circuit television pursuant tosection 486.2(1) of the Criminal Code. [4] In support of the application, the Crown provided an affidavit sworn by Mireille Renaud, a student-at-law at the Crownoffice in Sudbury. The affidavit highlights the availability and use of closed-circuit television technology.

The technology is describedas allowing for the real-time video and audio reception of a witness’ evidence. [5] The affidavit provided does not refer to or establish an evidentiary basis for providing closed-circuit television toaccommodate Ms. T.-G.’s testimony. [6] The Crown submits that

section 486.2(1) of the Criminal Code contains mandatory wording which provides that anorder for testimonial accommodation, if sought upon application, must be granted and that the judge’s only role is the determination ofwhether a particular accommodation would interfere with the proper administration of justice. [7] Inherent in the Crown’s argument is that it is up to the applicant to determine which accommodation is to bepresumptively ordered.

In other words, consideration by the court of the use of a testimonial accommodation other than that which isbeing sought is only warranted within the context of the court considering whether the requested accommodation would be interferingwith the proper administration of justice. [8] Defence counsel did not file an affidavit, but without objection from the Crown made oral representations whichincluded reasons why real-time video and audio reception of the complainant’s evidence might not be practical in this case. [9] Both counsel submitted case law for the court’s consideration.

I have considered all of the cases provided although forthe purpose of these reasons, I may not be making direct reference to each case. 2: ANALYSIS [10]

Section 486.2(1) came into force on January 2, 2006. The

section now provides there is no longer an onus on anapplicant to demonstrate the need for a requested accommodation. The Crown need not tender evidence in order to be presumptivelyentitled to use one of the testimonial aid referred to. The presumption is subject to the court being satisfied that the use of a testimonialaid will not interfere with the proper administration of justice. [11]

Section 486.2(1) does not indicate or specify what constitutes interference with the proper administration of justice. Itwould indeed be a difficult task for the legislators to attempt to define what constitutes an interference. The variables are obviously toogreat and each case must be decided on its own facts. [12] In the case of R. v. S.B.T. 2008 BCSC 711 , [2008] B.C.J. No. 1027, 232 C.C.C. (3d) 115, was decided by J.Smart on behalf of the British Columbia Supreme Court on May 1, 2008. Justice Smart categorized the phrase “the properadministration of justice” as a phrase of wide import.

More specifically he stated as follows: “In the context of this subsection it may include many factors and considerations. When an application is made under

section 486.2(1),the judge or justice will likely consider the age of the witness, the nature of the charges, the relationship between the witness and theaccused, the need to have the witness view exhibits while testifying, and whether the requested accommodation can be properly providedin the particular courtroom or courthouse. This is not an exhaustive list.

What is central to the decision is whether the requestedtestimonial accommodation with enhance or undermine the truth-seeking function of our criminal trial process.” [13] It should be noted that the issue in the S.B.T. case was whether it was the judge or the applicant who determined whichaccommodation was to be presumptively ordered. The decision held that it was up to the applicant to decide because

section 486.2(1)creates a presumption in favour of the testimonial accommodation requested by the applicant. [14] This is to be contrasted with the decision of R. v. C.T.L. decided by Justice Martin of the Manitoba Queen’s Bench onOctober 16, 2009. In that case, Justice Martin found that it was within the trial judge’s inherent jurisdiction relating to the trial

management to determine the nature of the testimonial aid to be ordered. [15] The issue of what testimonial aid may be best or optimal was discussed by Justice Gunn of the Saskatchewan Court ofQueen’s Bench in R. v. Brown [2010] S.J. No. 791, decided on November 10, 2010. Justice Gunn referred to both cases namely R. v.C.T.L. 2009 MBQB 266 , [2009] M.J. No. 357, decided by Justice Martin and R. v. S.B.T. 2008 BCSC 711 , [2008]B.C.J. No. 1027, decided by Justice Smart. Justice Gunn stated as follows: “With the greatest of respect, I prefer the approach taken to this issue in Manitoba by Justice Martin.

In my view the trial judge has thesole and inherent authority to manage the trial and the courtroom in which it takes place. The judge has the on going responsibility to besatisfied that the use of a testimonial aid or the use of a particular testimonial aid will not interfere with the proper administration ofjustice. It is also my view that the judge’s decision is one which may be revisited during the course of a trial if necessary.” [16] I agree with Justice Gunn’s comments. Within the framework of

section 486.2(1) the trial judge has the jurisdiction andthe responsibility to decide what form of testimonial aid, if any, should be permitted. [17] The court also fully considered the reasoning of Justice Caldwell of the Ontario Court of Justice in the decision of R. v.C.S. [2009] O.J. No. 5591, 2009 ONCJ 617 released December 28, 2009. In that case, the Crown sought to have a fifteen year oldtestify behind a screen or by way of closed-circuit television in the trial of three young persons charged with robbery and other offences.

The young person to be called as a witness had also been charged and had pleaded guilty. She was now being called as a witness againstthree other young persons involved in the same crime who chose to proceed to trial. [18] Justice Caldwell reviewed several decisions which dealt with the topic of witnesses in the context of face to face contactduring the course of a trial. She specifically referred to the decision of R. v. Levogiannis decided by the Ontario Court of Appeal in 1990and by the Supreme Court of Canada in 1993.

She referred to Justice Morden’s comments on behalf of the Ontario Court of Appeal asfollows: “…it is still “an accepted tradition of our legal system that judge, jury, witnesses, accused and counsel are all present in the sight of eachother” and thus “that normally an accused has a right to be in the sight of witnesses who testify against him or her”. Further, the reasonunderlying the right is said to be that it is more difficult not to tell the truth about a person when looking at that person eye to eye.

I amprepared to accept the general truth of this proposition…” though he, Justice Morden, went on to add that the right is subject toqualifications and exceptions. [19] In Justice Caldwell’s view, the fact that certain conditions must be met before a screen can be ordered, such as the factthat the witness be under eighteen years of age or face other enumerated difficulties, demonstrates that our criminal justice system stillsees some value in such contact.

She goes on to say that the existence of an exception, namely, if the use of the screen would interferewith the proper administration of justice, also demonstrates that the principle of face to face conduct has not been eradicated. [20] In that case, the young person called was only two years younger than the other parties and had admitted herself being anactive and even enthusiastic participant in the events which unfolded, which gave rise to the charges.

Justice Caldwell held in thecircumstances of that case that to testify behind a screen potentially would result in an interference with the proper administration ofjustice. She therefore dismissed the Crown’s application. [21] The court must decide the application on the basis of what it has heard. The court accepts that there is a presumption thatthe order sought by the Crown should be made and that the Crown no longer has to tender evidence in order to be entitled to one of thetestimonial aids described in the Criminal Code.

The next step is for the court to be satisfied that the order would not interfere with theproper administration of justice. It is reasonable to assume that the case will involve extensive cross-examination. Defence counselreferred to the use of documents and sketches. [22] The court must take into account that it may not be as practical for counsel to show documents to the witness if she islocated in another room. The court must rely on defence counsel’s comments that he intends to cross-examine the witness with the useof documents.

This is not a determinative factor but only one factor within the context of the case. There are measures as indicated bythe Crown which may be taken such as making multiple copies of marked documents for easy reference by the witness. 3: DECISION [23] On balance and bearing in mind the age of the witness, her relationship with the accused, the nature of the case and otherfactors raised, I must conclude that the application should be granted.

In all of the circumstances, however, taking into account issuesraised by defence counsel including some benefit relating to face to face contact, I must conclude that the use of a screen is moreappropriate in this case. The screen shall permit the accused, counsel and the court to directly see the complainant. The complainant,however, shall not be able to directly see the accused. [24] I also take note that the Crown has not made any submission that the complainant has a particular personal reason whyshe wants to testify by closed-circuit television rather than with the use of a screen as a testimonial aid.

Having said that, the court doesnot ignore the relationship between the complainant witness and the accused and the logical likelihood that she may feel nervous anduncomfortable. [25] In the court’s view, to grant the application by allowing the complainant to testify with the use of a screen as describedwould not present interference with the proper administration of justice. [26] Therefore the application is allowed, however, the testimonial accommodation to be used is a screen rather than closed-circuit television. Crown counsel has not asked that a support person also be made available.

Crown counsel, if she wishes, mayaddress this possibility before the hearing commences.

Released: July 25, 2011 Signed: “Justice Randall W. Lalande”