COURT FILE NO.

:
DATE: 20100121

ONTARIO

2010 CanLII 22061 (ON SC)

SUPERIOR COURT OF JUSTICE
Toronto Region

[Note: This proceeding is governed by publication restrictions under section 110 of the Youth
Criminal Justice Act.]

B E T W E E N: )
)
HER MAJESTY THE QUEEN ) A. Del Rizzo & T. Lissaman, for the
) applicant
)
)
Applicant )
)
- and - )
)
C.D. and J.W. ) A. Barnes & L. Riva, for the respondent,
(young persons pursuant to the Youth ) C.D.
Criminal Justice Act, S.C. 2002, c. 1) )
) D. McLeod, for the respondent, J.W.
)
Respondents )
)
) HEARD: January 15, 2010

NORDHEIMER J.:

[1] The prosecution seeks an order under s. 486.2 of the Criminal Code, permitting four of its
witnesses to give their evidence at the trial by way of closed circuit television. At the completion
of the hearing, I concluded that the witnesses should not be allowed to give their evidence in that
fashion and dismissed the application. I said I would provide reasons for my decision and I now
do so.

[2] The respondents are both young persons so I will refer to them throughout these reasons
by their initials – J.W. & C.D. They face trial on a single charge of first degree murder. The
charge arises out of the shooting death of Jordan Manners, a fifteen year old boy, that took place
 -2-

in C.W. Jefferys C.I., a high school in Toronto on May 23, 2007. The witnesses, who are the
subject of this application, all attended C.W. Jefferys C.I. They are being called to give evidence
relevant to the issue of the identities of the persons who were seen with Jordan Manners at or

2010 CanLII 22061 (ON SC)

around the time that he was shot.

[3] The basis upon which the order was sought is that these witnesses have a genuine fear
about giving evidence in this case because of their concern that they may be subject to reprisals
if they do so. The existence of those fears was placed into evidence through two detectives from
the homicide squad who have dealt with these witnesses. While there was an objection from the
defence to having the evidence go in through these officers as opposed to having it come from
the proposed witnesses themselves, I determined that I would allow the officers to give the
evidence in the first instance. I indicated that if, as the application proceeded, I needed to hear
from the proposed witnesses directly, I would revisit the issue at that time. I reached that
decision for two principal reasons. One practical reason is that it would have involved a delay of
some days both to find the witnesses and have them attend and also to set up a closed circuit
television hook-up to allow them to give evidence on the application.1 On this latter point,
defence counsel agreed that the witnesses should be allowed to give their evidence, on the
application at least, in that fashion. The other reason is that given the concerns expressed by
these witnesses, I thought that it was preferable not to subject them to yet another appearance in
this proceeding if that could be avoided. As matters unfolded, I did not consider it to be
necessary to hear from the proposed witnesses.

[4] There are four witnesses involved in this application. All of them were young persons at
the time of the incident. However, three of them are now over the age of eighteen. The fourth is
not. Nonetheless, I shall refer to them all by their initials. The evidence with respect to these
witnesses is as follows:

(i) Y.M. is said to be an eyewitness to the shooting of Jordan Manners. From

her initial interview with the police through the preliminary hearing and in
preparation for this trial, she has expressed fear that her identity would
become known to the persons responsible for the shooting as well as

1
In fairness, I should point out that this delay arose, at least in part, from the fact that the defence did not advise the
prosecution of their objection to the manner in which the prosecution intended to put this evidence before the court
until just before the hearing.
 -3-

friends of the persons responsible. Her parents and other relatives have
also expressed concern for her safety. She expressed a fear of giving
evidence in court and also a fear of possible retaliation against her. At the
preliminary hearing, she gave evidence by way of closed circuit television.
While this was not said to have completely removed her fear, it appears

2010 CanLII 22061 (ON SC)

that this manner of giving evidence was used by the prosecution and the
police to help assuage the reluctance expressed. It is reported that Y.M. is
generally reluctant to be part of the criminal process.
(ii) S.D. was with Y.M. at the time of the shooting. She and her mother also
expressed fears about being part of the criminal process. S.D. was fearful
because of what she had seen. She also had a fear for her safety. S.D. has
expressed fear of facing the accused and also a fear of facing any friends
of the accused who may come to watch the trial proceedings. The police
have had trouble maintaining contact with S.D. since the incident.
(iii) A.A. was also with Y.M. at the time of the shooting. She also expressed
fears regarding giving evidence, about possible reprisals and about her
safety. At the time of the application, the police had been unable to
contact A.A. in terms of ensuring that she will come and give evidence at
the trial. A.A. is believed to have recently been in the United States but it
is not known if she is still there.
(iv) S.W. is the one witness who is still under eighteen. She apparently saw
Jordan Manners in the company of two other males at the top of the
staircase in which he was shot and then later saw Jordan and the same two
males at the bottom of the staircase when Jordan was obviously in distress.
She expressed similar fears as did the other three regarding giving
evidence, about possible reprisals and about her safety. Her family shared
her concerns.

[5] Each of these witnesses gave evidence at the preliminary hearing. They all did so by way
of closed circuit television. In addition, when they gave their evidence a screen was lowered in
the courtroom that essentially blocked the public gallery from seeing the rest of the courtroom,
i.e., the accused, counsel, the presiding judge and the witness on the television screen. The
public could, however, hear what was being said. Of the three witnesses who have been
contacted in preparation for trial, they have all asked that the same arrangements be made for
them to give evidence at the trial.

[6] None of the witnesses, save Y.M., knew either of the accused. Y.M. knew C.D. because
he had apparently tried to date her at some earlier point in time. None of the witnesses have
reported any contact or attempted contact by either of the accused since the shooting nor have
they reported any contact by persons on behalf of the accused. There have not been any threats
made to any of the witnesses nor have there been any rumours of threats to them.
 -4-

[7] Before I turn to the issue itself, I want to make one comment about the material that was
put before me on this application. One piece of that material was an excerpt of a report done for
the Toronto District School Board arising from this incident entitled “The Road to Health: A

2010 CanLII 22061 (ON SC)

Final Report on School Safety”. It is a report commissioned by the T.D.S.B. to address the
obvious concerns regarding safety in schools that arose from this tragedy. The prosecution
sought to rely on a survey that the authors of the report had done that purported to establish that
students at C.W. Jefferys C.I. would not talk to the police about crimes. The report further
purported to provide reasons for this attitude including fear of the offenders and fear of the police
along with the belief that the police were unable to provide protection against retaliation.

[8] I have not relied upon the contents of the excerpt from this report in reaching my
conclusion, for a couple of reasons. First, I question whether the report is proper evidence on
this application. The report itself points out that there are methodological weaknesses with the
survey that was done. Indeed, there is nothing in the report that would demonstrate that the
survey was conducted in accordance with recognized protocols for the conduct of proper and
reliable surveys. While the survey may well have served the purposes intended for the report,
that does not elevate it to the level of reliability that would be required for it to be considered as
evidence in this court. On this point, I recognize that in R. v. Levogiannis, [1993] 4 S.C.R. 475,
the court held that evidence on such an application does not have to “take any particular form”.
That is not the same thing, however, as saying that the material on an application does not still
have to meet the usual standard for admissible evidence.

[9] Second, the report obviously does not establish that these witnesses have concerns or the
degree or nature of those concerns. The most that the report might do is establish that, if these
witnesses have certain fears, it would not be unusual or out of the ordinary for such fears to exist.
The defence, however, did not take issue that these individuals may have fears that would, from
their personal perspectives, appear to be real ones. What the defence took issue with was
whether those fears as expressed met the threshold set out in s. 486.2.

[10] Turning then to the section itself, s. 486.2 differentiates between witnesses who are under
eighteen or who suffer from a mental or physical disability and all other witnesses. For the
former category of witness there is a presumption that the witness will be allowed to give
 -5-

evidence outside the courtroom or from behind a screen. For all other witnesses, any such order
is entirely discretionary. The precise wording of the section is:

(1) Despite section 650, in any proceedings against an accused, the judge or

2010 CanLII 22061 (ON SC)

justice shall, on application of the prosecutor, of a witness who is under the age of
eighteen years or of a witness who is able to communicate evidence but may have
difficulty doing so by reason of a mental or physical disability, 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.

(2) Despite section 650, in any proceedings against an accused, the judge or
justice may, on application of the prosecutor or 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 if the judge or justice is of the opinion that the
order is necessary to obtain a full and candid account from the witness of the acts
complained of.

[11] The section also directs that in deciding whether to make an order, the court is to consider
the factors set out in s. 486.1(3), namely, “the age of the witness, whether the witness has a
mental or physical disability, the nature of the offence, the nature of any relationship between the
witness and the accused, and any other circumstance that the judge or justice considers relevant”.

[12] In terms of those factors, as I have already mentioned, only one of the subject witnesses
in this case is now under eighteen years of age. The other three are adults. None of them suffer
from any mental or physical disabilities. The offence is first degree murder. The murder in
question was a particularly shocking one. In addition to the basic fact that this was a shooting,
there are the additional facts that the victim and the accused are all young persons and the killing
itself took place in a high school during a regular school day.

[13] I return to the Supreme Court of Canada’s decision in R. v. Levogiannis. The decision
dealt with a constitutional challenge to the predecessor section to s. 486.2. In upholding the
constitutional validity of the section, the court laid out certain general principles regarding the
determination of whether orders should be made under the section. In particular, the court held
that the section should be given a liberal interpretation and that trial judges should be given
“substantial latitude” in deciding whether to make such orders. The decision also held that, if an
order is made, the order does not violate an accused person’s right to a fair trial.
 -6-

[14] As with any decision, it is important to remember the facts that underlay the decision.
The decision in Levogiannis arose out of a twelve year old boy who was giving evidence in a
sexual interference case involving an adult male accused. The decision very much focuses on

2010 CanLII 22061 (ON SC)

the fear that the boy had in facing the accused. Indeed, many of the other authorities to which I
was referred were also cases of young persons who were victims of sexual offences and fearful
of facing the persons who they claimed had harmed them.

[15] This case is very much of a different kind from those cases. Here, the individuals
regarding whom the prosecution seeks this order are not the subjects of the criminal offence.
They are witnesses to it. While the individuals here did express some fear of facing the accused,
their principal concern as reported by the detectives is a fear of reprisals arising from them being
witnesses. At no point has any of these witnesses said that they are unable to give their evidence
if they are required to do so in the presence of the accused.

[16] If the stated fear is a fear of reprisal arising from the fact that these individuals are going
to give evidence in this trial, then it is self-evident that the core fear arises from the fact of being
a witness – not from the manner in which the evidence is given. I do not see how changing the
manner in which the individuals give their evidence addresses that central concern. In other
words, the concern as expressed by these individuals arises from the fact of being a witness, not
from the form in which their evidence is given.

[17] In addition, it is difficult to substantiate the concern from an objective point of view.
There have been no threats, real or perceived, against any of these individuals. There has not
been any contact between these individuals and the accused or between these individuals and
anyone purporting to act on behalf of the accused. By making this point, I do not mean to
suggest that these individuals may not be truly fearful in their own minds, recognizing, of course,
that fear does not have to be rational or logical or soundly based. In contrast, a judicial decision
to depart from the normal trial procedure must have a rational basis. There must be some
evidence upon which the court could be satisfied that there is a legitimate foundation for the
concern – one that would warrant the intervention of the court. I accept that a person who
witnesses a violent incident such as a shooting might understandably then have concerns as to his
or her own safety. It would be natural for such concerns to arise. However, I do not believe that
 -7-

that type of common and subjective concern was ever intended to be sufficient to provide a
proper foundation for an order under s. 486.2. If that form of concern was sufficient, we would
quickly find ourselves on the proverbial slippery slope that could easily lead to a situation where

2010 CanLII 22061 (ON SC)

orders under s. 486.2 become the norm rather than the exception in serious criminal cases. The
words of Morden, A.C.J.O., quoted with approval in Levogiannis at para. 30, bear repeating in
this regard:

My conclusion, based on the foregoing, is that, since it is an accepted tradition of

our legal system that judge, jury, witnesses, accused and counsel are all present in
sight of each other, it can be said that normally an accused has the right to be in
the sight of witnesses who testify against him or her.

[18] I recognize, as was also noted by Morden, A.C.J.O., that this is not an absolute right. But
that does not mean that it is still not an important right. It is a right that has additional
importance in this case for two reasons. One is that the accused in this case are themselves
young persons. Under the Youth Criminal Justice Act, S.C. 2002, c. 1, young persons enjoy
“special guarantees of their rights and freedoms” including the right to “participate in the
process”. Any departure from the normal trial process therefore bears special scrutiny in the case
of young persons.

[19] The other reason is the fact that, as I have already mentioned, this will be a jury trial. The
jury must see and hear all of the witnesses. It is apparent that the central issue in this case will be
the identification of the alleged shooter(s). The credibility of witnesses to the event, and the
circumstances surrounding their observations, will be central to the jury’s task. A television
screen is a questionable substitute for actual direct observation of a witness. Any steps that
impinge on the jury’s ability to assess the credibility of witnesses are obviously problematic.
They could also prejudice the accused.

[20] It is also important to remember that the test in s. 486.2 is that the order must be
“necessary to obtain a full and candid account from the witness of the acts complained of”. The
threshold that must be met is one of necessity. The section does not provide that the order can be
given because it would “facilitate” obtaining that full and candid account nor does it authorize an
order being made because it might be the preferable or more comfortable or easier way of
 -8-

obtaining that account. The order must be “necessary”, which is defined in the Oxford
Dictionary of English (2nd ed.; revised) as “needed to be done, achieved, or present; essential”.

[21] There is simply no evidence in the record before me that an order under s. 486.2 is

2010 CanLII 22061 (ON SC)

essential to the purpose of obtaining a full account from these witnesses. None of the witnesses
have told the police that absent such an order they cannot or will not provide their evidence.
They have simply expressed a preference for, or a higher comfort level with, providing their
evidence through the use of closed circuit television as was done at the preliminary hearing.
That evidence fails to meet the necessity standard and, absent such evidence, the court cannot
make the order. This point was reinforced in R. v. M. (P.) (1990), 1 O.R. (3d) 341 (C.A.) where
Morden, A.C.J.O. said, at p. 346:

The trial judge is not, however, empowered to form the requisite opinion unless
there is an evidential base relating to the standard of necessity referred to in the
subsection which is capable of supporting the opinion.

[22] In addition to these considerations, there is another important factor that arises from the
fact that this will be a jury trial. There will be many witnesses called. All of the other witnesses
will give their evidence in the normal way, that is, by going into the witness box and giving their
evidence “in person” before the jury. When it comes to these four witnesses, however, suddenly
the jury will be faced with witnesses giving their evidence by way of a television screen from an
undisclosed location. Some explanation would have to be given to the jury as to why this
departure from the usual way of witnesses giving their evidence was being undertaken. A failure
to provide an explanation would only invite speculation by the jury as to why this was happening
and that speculation could easily prejudice the accused.

[23] I appreciate that this issue was alluded to in Levogiannis. It was suggested that in a jury
trial, instructions to the jurors by the trial judge could address any concerns arising from the use
of a screen or other device. However, the comments on this point in the Supreme Court’s
decision dealt entirely with a child giving evidence from behind a screen in the context of a
sexual offence where the child witness was the victim. As I have already said, in this case three
of the four individuals are adults and none of these individuals is a victim of the offence.
 -9-

[24] While a jury might understand why a child would be permitted to give evidence from
behind a screen in a case such as Levogiannis, it seems to me that it would be a great deal more
difficult to explain to a jury why the subject individuals in this case were giving their evidence

2010 CanLII 22061 (ON SC)

by way of closed circuit television – at least it would be very difficult to provide an explanation
that would not prejudice the accused. Any honest explanation would have to start by revealing
the reason for the special accommodation, that is, that the witnesses have a fear arising from
giving evidence. If one said nothing more than that as the reason why the evidence of these
witnesses was being taken by closed circuit television, it would almost certainly lead to negative
speculation among the jurors about the accused. Of course, giving any more information about
the actual reasons for the fears would move the consequences from speculative prejudice to
actual prejudice to the accused. In those circumstances, I would not have any faith that a jury
instruction, directing the jury not to take anything from the fact that these special arrangements
were being employed, would be effective. While jury instructions can be effective to address
certain concerns, they are not a panacea for all ills that arise in the course of a jury trial.

[25] It is a basic principle of our criminal justice system that an accused is entitled to face his
accusers. While there are undoubtedly situations where the court’s interest in getting at the truth
will outweigh the face-to-face meeting of accused and accuser, I did not have sufficient evidence
to satisfy me that such a departure from the norm was necessary in this case. Further, it would
be virtually impossible, in my view, to provide any satisfactory explanation to the jury for this
unusual procedure while at the same time maintaining the fair trial rights, including the
presumption of innocence, of the accused. It is this latter reality that lead me to conclude that
even in the case of S.W. such an order was not justified notwithstanding the presumption that
arises in her case. The difficulties involved with giving any explanation to the jury, and the very
real potential for prejudice to the accused, would constitute an interference with the proper
administration of justice, for the reasons I have mentioned.
 - 10 -

[26] It was as a consequence of the above that I concluded that the application should be
dismissed.

2010 CanLII 22061 (ON SC)

___________________________
NORDHEIMER J.

Released: January 21, 2010

 Court File No.:

2010 CanLII 22061 (ON SC)

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

- and -

C.D. & J.W.

(young persons pursuant to the Youth
Criminal Justice Act, S.C. 2002, c. 1)

Respondents

REASONS FOR DECISION

NORDHEIMER J.

RELEASED: