WARNING

The court hearing this matter directs that the following notice be attached to the file:

2018 ONCJ 1012 (CanLII)

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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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, 171.1,172, 172.1, 172.2, 173, 210, 211, 212,
212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280,
281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the
day on which this subparagraph comes into force, if the conduct
alleged involves a violation of the complainant’s sexual integrity
and that conduct would be an offence referred to in subparagraph
(i) if it occurred on or after that day; or

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

(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.
 O NT AR I O C O UR T O F J US T ICE

CITATION: R. v. Wilson, 2018 ONCJ 1012

DATE: 2018 05 29
COURT FILE No.: Barrie 3811-998-17-3283

2018 ONCJ 1012 (CanLII)

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Xavier Wilson

Before Justice Carlton

Heard on May 9, 2018 in Barrie
Reasons for Judgment released on May 29, 2018

L. Senko, ........................................................................ Student-at-Law for the Crown

K. Miles.................................................................................... counsel for the accused

CARLTON J.:

[1] The Crown has brought an application under section 714.1 to have its central
witness on a charge of sexual assault testify by videolink. The trial is set to commence on
June 12, 2018 in Barrie.

[2] The alleged offence date is May 20, 2017 when the complainant, S.D., resided in
this jurisdiction.

[3] The application materials state that the charge involves an allegation that Mr.
Wilson sexually assaulted S.D. at a party. The materials state that the complainant was
asleep at the time of the assault and that the complainant’s boyfriend witnessed the
assault.

[4] S.D. now resides in Saskatchewan. The application seeks to have S.D. testify at
the trial in the Ontario Court of Justice by videolink from Regina, Saskatchewan.

Section 714.1

NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start
of this document. If the WARNING page(s) is (are) missing, please contact the court office.
 — 3 —

[5] Section 714.1 reads as follows:

714.1 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

2018 ONCJ 1012 (CanLII)

would 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.

Evidence in Support of the Application

[6] The Crown relies on two affidavits in support of the application.

[7] The first is from a staff member of the Barrie Crown Attorney’s Office. It sets out
that the cost for travel and accommodation is estimated at $815.00.

[8] The second is from an officer of the Barrie Police Service. It states that S.D. now
resides permanently in Saskatchewan. It states that S.D. is of modest means and that
taking the time away from work to testify would be financially difficult. Lastly, it states that
S.D. has a “health issue” and that travel would be difficult.

[9] In submissions the Crown stated that it had materials in its possession supporting
the existence of a health issue but could not disclose them absent a hearing under s.278
of the Criminal Code.

Position of the Applicant

[10] The applicant Crown submits that the test in section 714.1 has been met. The
witness S.D. now lives out of province. Travelling to Barrie to testify would be a significant
inconvenience in time and in cost to her. S.D. reports a medical issue, not specified, that
makes travel particularly onerous for her. This addresses the first two criteria in s.714.1.

[11] As to the last criterion in s.714.1, the applicant further submits that a videolink is
an acceptable substitute for in court testimony. This procedure is employed in other
contexts and does not impair the right of the defendant to cross-examine the witness or
make full answer and defence. Such an approach is supported by the medical condition
of the witness.

Position of the Respondent

[12] The respondent Mr. Wilson submits that his ability to make full answer and defence
would be undermined by the use of a videolink in this case. The charge is one where the
credibility and reliability of S.D. is central to the case. The respondent submits that the
 — 4 —

videolink impairs his ability to confront the witness and for the court to make a full
assessment of the credibility of S.D. The charge is a serious one and issues of costs
and/or inconvenience cannot dictate a result that might impact his ability to make full
answer and defence.

[13] The defendant submits the evidence regarding any medical issue of S.D. is

2018 ONCJ 1012 (CanLII)

conclusory and devoid of any information that would allow the court to assess it on the
grounds of the “personal circumstances of the witness”.

[14] Lastly, the defendant submits that the application does not address the means by
which the videolink would occur. There is no evidence about the location for the videolink
or of the picture and audio quality to be expected. There is no evidence on the manner in
which S.D. would be monitored to ensure the integrity of her evidence. This would include,
for example, the means by which it could be ensured that she followed any direction of
the court or did not have access to any materials not known to the court during her
evidence.

Analysis

[15] I will address this last objection of the defence at the outset. I do accept that the
application is silent on most of these procedural or technical issues. That said, I will
assume for purposes of the application that these issues can be satisfactorily resolved.
The Crown would be required to have S.D. testify “in the virtual presence of the parties
and the court” and to put in place adequate safeguards to ensure the integrity of her
evidence. Measures would need to be in place such that documents, transcripts or video
could be put to the witness in a seamless manner by videolink.

[16] More broadly, the parties agree that the credibility and reliability of S.D. is at issue
in the trial. In my view this is central to the resolution of this application. The witness S.D.
is the primary or one of the primary witnesses for the Crown.

[17] In my view the ability of Mr. Wilson to make full answer and defence requires the
attendance of S.D. in court before the trier of fact. I therefore dismiss the application.

[18] I make this finding for the following reasons:

(i) Importance of Viewing the Witness

[19] I appreciate that courts are cautioned not to place undue reliance on the
demeanour of a witness in making credibility findings (see R. v. DeHaan (2002), 155
O.A.C. 358 (C.A.)).

[20] At the same time, demeanour remains an element to be considered by a trier of

fact in assessing credibility. In N.S. In R. v. S.(N.), [2012] 3 S.C.R. 726, the Supreme
Court recently underlined the importance of being able to observe a witness to make
credibility assessments. That case sets out the test for when it is necessary for a witness
to remove a niqab so that the trier of fact can observe the face of the witness when
testifying. McLachlin C.J. stated (at paras. 22 and 27):
 — 5 —

As a general rule, witnesses in common law criminal courts are required to testify
in open court, with their faces visible to counsel, the judge and the jury. Face-to-
face confrontation is the norm, although not an independent constitutional right: R.
v. Levogiannis (1990), 1 O.R. (3d) 351 (Ont. C.A.), at pp. 366-67, aff'd [1993] 4
S.C.R. 475 (S.C.C.). To be sure, long-standing assumptions of the common law
can be displaced, if shown to be erroneous or based on groundless prejudice —

2018 ONCJ 1012 (CanLII)

thus the reforms to eliminate the many myths that once skewed the law of sexual
assault. But the record before us has not shown the long-standing assumptions of
the common law regarding the importance of a witness's facial expressions to
cross-examination and credibility assessment to be unfounded or erroneous.

On the record before us, I conclude that there is a strong connection between the
ability to see the face of a witness and a fair trial. Being able to see the face of a
witness is not the only — or indeed perhaps the most important — factor in cross-
examination or accurate credibility assessment. But its importance is too deeply
rooted in our criminal justice system to be set aside absent compelling evidence

[21] I appreciate that the Supreme Court noted (at paragraph 23 of N.S.) that testifying
using closed circuit television under s,486.2 of the Criminal Code is not inconsistent with
these principles. That said, a videolink diminishes, to some degree, the ability to see the
face of the witness and to assess expressions and demeanour as compared to evidence
given directly from the witness box. As such, it is to be less preferred than the use of a
videolink. As stated by Ellies J. in R. v. D.P, [2013] O.J. No. 2232 (S.C.) at para. 7, a
videolink is an imperfect “substitute” for in court testimony:

But the accused, the Crown and the witness are not the only participants in the
trial process. The ability of the court to fulfil its truth-finding function is also
important. Unlike the situation at the preliminary inquiry, credibility will be a major
issue at the trial. While demeanour, by itself, is an unreliable way to determine
credibility, it is nonetheless one facet of the way in which the court in a case like
this must do so. In my view, when it comes to demeanour, there is no substitute
for being near the witness as she testifies. It is no accident that witness boxes are
placed next to or near the judge and jury in almost every courtroom across the
country.

ii) Effect on Cross-Examination

The principal vehicle for the defendant to test the credibility of the complainant is through
cross-examination. The dynamic of that encounter is changed when a witness testifies by
videolink as opposed to being in court. The effect of the “face-to-face confrontation”
described in N.S. can be blunted when questions are mediated through a videolink. This
has the potential to deprive the trier of fact of information critical to the determination of
credibility. This information could be favourable or unfavourable to the witness. To the
extent that it could deprive the trier of fact of information unfavourable to this witness it
has the potential to affect the defendant’s ability to make full answer and defence.
 — 6 —

iii) Absence of a s.486.2 Application

[22] The application has been brought only under s.714.1 and not, additionally, under
s.486.2. Section 486.2 allows for the use of a screen or of closed circuit television which
for these purposes is virtually identical to the use of a videolink.

2018 ONCJ 1012 (CanLII)

[23] If the grounds for a s.486.2 application were established than it may well be less
onerous for the Crown to meet the test in s.714.1. If closed circuit television is being used
then the physical location of the witness is less relevant assuming that the technology
and witness integrity issues can be addressed (see R. v. Belem, [2017] O.J. No. 1882
(S.C.)).

[24] Such is not the case here. There is no evidence that the use of the videolink is
required to “facilitate the giving of a full and candid account by the witness of the acts
complained of or would otherwise be in the interest of the proper administration of justice”
as set out in s.486.2(2) of the Criminal Code. This is the test for closed circuit television
for a witness in the position of S.D.; an adult witness who is not within a class of persons
who “may have difficulty” in communicating evidence by “reason of a mental or physical
disability” (in s.486.2(1)).

[25] I would add that, in my view, s.486.2 does not establish that the use of closed
circuit television (or a videolink), is by virtue of that section, the equivalent of in-court viva
voce evidence. Instead, it carves out exceptions to the general rule of in-court evidence
only when it can be presumed that closed circuit television would “facilitate a full and
candid account” (in s.486.2(1) or when a such a finding is supported by evidence (in
s.486.2(2)). In such cases, the “norm” of a “face-to-face confrontation” is moderated by
the need of the court to receive a full and candid account. Such an approach serves the
“truth-seeking” goal of the trial process (see R. v. Levogiannis, [1993] 4 S.C.R. 475
(S.C.C. at para. 24).

iv) Evidence of Health Issue

[26] The Crown relies in part on an assertion in the police affidavit that the complainant
is suffering a health issue and that travel would be difficult for N.S. It is very difficult for
the court to assess the strength of this claim. There is no medical documentation to
provide any detail or context.

v) Weight Given to Cost and Convenience Issues

[27] Issues of cost and convenience are important. The court must be mindful of the
cost to the public (or a defendant) of bringing a witness to court. The court must be mindful
of the inconvenience to a witness of attending for court proceedings.

[28] These considerations loom much larger if the witness is not central to the case or
one for which credibility is not a critical issue (see D.P., at para. 8). The cases provided
by counsel suggest that cost is less telling when the witness is central to the case.

Conclusion
 — 7 —

[29] Section 714.1 creates a useful tool to efficiently use technology to put evidence
before a court. It should be embraced where doing so does not affect the right to make
full answer and defence. In cases where the application relates to a witness whose
credibility is central to the case I note the judgment of Parret J. in R. v. Chapple, [2005]
B.C.J. No. 585 (S.C.) at para. 52 as follows:

2018 ONCJ 1012 (CanLII)

The proper consideration of such an issue must begin with a
consideration of the witness’ evidence. Where, as here, there are
serious issues of credibility to be determined involving the credibility
of a witness, a court, should, in my view, be very reluctant to deprive
the trial judge of seeing the witness physically present in the
courtroom.

[30] I find, therefore, that it would not be “appropriate in all the circumstances” to allow
S.D. to testify by videolink. The application is dismissed.

Released: May 29, 2018

Original signed by
Justice Carlton