Vulnerable Adult Witnesses: The perceptions and experiences of Crown Prosecutors and Victim Services Providers in the use of testimonial support provisions

• R v Agar, 2007
• #26636-1-K (BCPC), Williams Lake
• Criminal harassment
• Trial

• Application under ss. 486.2(2) (CCTV) 486.1(2) and 486.3
• Discretionary

• Adult, middle-aged female complainant with no disability
• Lengthy and difficult domestic history with the accused

• Trial judge ordered counsel to cross-examine complainant (486.3), but accused refusing to instruct counsel, so counsel withdrew
• Accused still entitled to cross-examine complainant as it is integral for administration of justice
• Judge orders that witness testify by CCTV and with a support person present
• Judge is told and “accepts that she would find the whole experience of being face to face with the accused in a courtroom very difficult” [20]
• and accused not opposed
• Judge says “I have some hesitancy always as a trial judge with witnesses testifying outside of the courtroom.  I like to see people face to face, but these harassment cases I do think are somewhat unique, and Parliament certainly seems to indicate that with provisions such as s. 486.3(4)
• Notes that another judge commented that CCTV had the capability to be almost better than face-to-face interaction between the judge and a witness in court in that the camera can be zoomed in on a witness”  (R. v. C.N.H., [2006] B.C.J. No. 782, 2006 Carswell BC 734 (BCPC)

• R v Alam, 2006 ONCJ 593;
• Attempted murder and related weapons offences;
• Preliminary

• Crown application under ss. 486.2(1), or in the alternative (2) for CCTV
• Mandatory

• Complainant allegedly shot in the head and at close range by accused for confronting the accused
• Complainant was unknown to accused
• Complainant has mental and physical disabilities, and fears for the safety of his family [1]
• Complainant has complex range of mental and physical disabilities, resulting from injuries before and after the shooting (brain injury, deficits in new learning, verbal memory, decreased motor skills and dexterity, facial paralysis, hearing loss, vision loss, seizures, pain, does not handle stress well) [5-11]

• Written application record and testimony of a victim/witness assistant with Ont AG’s office, who met with the complainant and discussed his concerns about testifying [10-12]
• (concerned about comprehension, understanding, easily frustrated, self-conscious, concerned about others in the courtroom looking at him, difficulty comprehending nature of legal proceedings)
• Witness also described what she observed when speaking to victim
• Victim concerned that his mother would have to testify at hearing – fears of reprisals (no evidence to support concerns)
• Witness supported application on basis that many witnesses express anxiety, but this witness may not be able to testify fully [12]
• Doctor's report indicating disabilities both before and after shooting [6, 7]

• Accused opposed on basis that there was no evidence of the complainant 's potential difficulties in communicating his evidence were the result of mental and physical disabilities, as opposed to normal stress and disinclination to testify; and no evidence that testifying outside of court would ameliorate the complainant‘s communicative problems, enhancing ability to give full and candid, and no objective evidence supporting reasonableness of safety concerns about complainant's family [2]
• Defence counsel “novel” legislation shold be interpreted with caution, to ensure there is no unwarranted curtailment of right to confront witnesses
• Accused argues that s. 486.2(1) does not apply because the complainant’s testimonial difficulties arise from reluctance to participate in the criminal process, rather than a mental or physical disability [22]
• Fair trial would be affected by lack of ability to face accuser [22]
• Accused argues that the use of the screen reinforces racist stereotypes regarding the accused's involvement in gang activity [35]

• Application granted for CCTV under s. 486.2(1) [37]
• Judge considers purpose behind the legislation [13]
• As a result of Bill C-2 changes, protections are extended to a larger class of vulnerable witnesses and there is greater procedural clarity. [19]
• The Court's ability to make an order under either ss. (1) or ss. (2) is now extended to any proceeding [19]

Re: s. 486.2(1): The subsection creates a presumption that a child or "a witness who may have difficulty communicating evidence due to a physical or mental disability" can testify from behind a screen or outside the courtroom. Unless the order would prejudice the accused's right to a fair trial or otherwise interfere with the proper administration of justice, the court "shall" make the order where requested to do so by the Crown or the witness. The Crown may have an evidentiary burden if the existence of a mental or physical disability that may impact on the ability of a witness to testify is disputed, as it was in this case. However, once the presumption is engaged, the Respondents bear the burden of establishing that the use of a testimonial aid would interfere with the proper administration of justice. [20]

Re: s. 486.2(2) is new. It is intended to recognize and accommodate adult witnesses who may be vulnerable to intimidation. This section permits a court to make an order for the use of a testimonial aid for any witness, if the judge or justice considers it "necessary to obtain a full and candid account from the witness of the acts complained of." The test to be applied in the exercise of the court's discretion is the same test used in the old s. 486(2.1), allowing a child or disabled adult to testify behind a screen or outside of the courtroom. The onus is on the Crown to establish an "evidentiary basis" for the making of the order concerning an adult witness, having regard to the age of the witness, the presence or absence of mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstances considered relevant (the same criteria in the new s. 486.1(3) that the court must consider when making an order to permit a support person to sit near an adult witness). The requisite evidentiary basis could be established through the testimony of a mental health professional or other expert or through the direct testimony of the witness, using the testimonial aid under consideration, as required by s. 486.2(6). In some cases, the submissions of counsel may suffice, as in the case of R. v. Smith, where the Alberta Court of Appeal held that submissions accepted by the court might be a sufficient basis for making such an order at a preliminary inquiry. [21]

• Judge finds ample vidence for factual finding that witness may have difficulties testifying due to mental and physical disabilities
• Judge also considers that witness is victim to a shooting, the courtroom is public, including supporters of the accused and members of public [24], [25]
• Testifying outside the courtroom will ameliorate the difficulties for the witness – minimize distractions [26]
• Rejects argument that witness should start in open court to see if he has difficulty communicating – “this is contrary to the letter and spirit of the legislation” – the preumption operates to prevent a “wait and see” approach (hence use of word “may”) [27]
• Analysis re: interference with the administration of justice: “I interpret the "proper administration of justice" in the context of these provisions as requiring a proper balance between the societal interest in the attainment of the truth, including the protection of vulnerable witnesses to facilitate their full testimony, and the Respondents' fair trial interests, including the right to make full answer and defence.” [29]
• Witness removed from rigours of courtroom and blocks view of accused, but trial otherwise conducted in usual manner – accommodation meets requirements of 486.2(7) [31]
• Communicating via CCTV does not impact on the right to face one's accuser – “society’s interest in accommodating a disabled witness to promote the truth-seeking objectives of a trial must be carefully balanced with the right to fair trial.” [34]

• R v Allen¸ 2007 ONCJ 209; [2007] O.J. No. 1353
• Murder of high-ranking member of the cocaine trade
• Preliminary

• Crown application under s. 714.1 – Court also considers s. 486.2(4)
• Discretionary

• Crown’s main witness helped plan the murder and  is in a witness protection program – there is evidence to show that a hit is out on him [5]
• Crown’s second witness is the accused’s former girlfriend – fears retribution [6]

• Case law invoked by Crown all addresses s. 714.1 (there appears to be no case law on the section) [9, 12]
• There is evidence that the first witness is a former confederate of the accused and that there is reason to fear an assassination attempt (the murder at hand, for example) [20]
• The judge appears to defer to the knowledge of the police and Crown without requiring proof  [22]

• Accused opposes [1]
• Argues that such applications should rarely be granted, as it derogates from the traditional practice of allowing an accused to face his/her accuser [14]
• The words “necessary to protect the safety of the witness” imposes a Crown burden to prove that no other measure could reasonably protect the witness [14]

• Only s. 486.2(4) applies to these facts. Section 714.1 should not be interpreted so broadly as to include the subject matter of s. 486.2(4) and (5). This would render s. 486.2(4) and (5) redundant [10]
• These facts fall within the meaning of s. 486.2(5)(a) (serious offence committed for the benefit of, at the direction of, or in association with a criminal organization) – this allegation does not need to be part of the count, so long as the evidence or anticipated evidence supports such an allegation [11]
• The words “may order” in the section provide discretion, which involves a balancing of competing interests and relevant circumstances [13]
• The accused’s suggested least restrictive measures approach is not appropriate – Parliament has provided a new technology and the courts should embrace it, where appropriate – there should be no bias in favour of the traditional approach [15]
• The section does not require the measure to be a last resort and does not impose a heavy burden on the Crown – would compromise the objective of witness safety [16]
• Necessity Test: If other measures leave some gap in protection (i.e. if there is any possibility of harm), then necessity is established and s. 486.2(4) is appropriate [17]
• Section 486.2(4) can be used in conjunction with other protective measures [18]
• In exercising discretion, “all of the circumstances should be considered, particularly the nature and extent of the safety concern and any negative impact such an order would have on the rights and interests of the accused and the trial process.” [19]
• Added security is more costly and creates more issues than a video-link (gives examples) [23]
• Less constitutional protection is available to the accused at prelim (the discretion balancing at trial might be different) [24]
• If cross-ex is affected, the issue can be revisited [25]
• Credibility assessments will likely not be impeded – may actually be improved [26]
• Cites Levogiannis for limitations on the right to face one’s accuser [27]
• Order granted for the first witness – balance weighs in his favour [28]
• The second witness is different and an order was not granted – her evidence is less important and there is less reason to believe she will be harmed [29]
• The remainder of the decision discusses the methods used to implement the video-linked testimony (this section appears to have been written after the above portion of the decision at the conclusion of the prelim inquiry)

• R v Billy, 2006 BCPC 203;
• Sexual assault
• Preliminary

• Crown application under ss. 486.1() and (2) and 486.2(1) and (2) for CCTV and support person
• Mandatory

• Complainant has been diagnosed with borderline personality disorder - suffers from, inter alia, major mood swings, impulsivity, and unpredictability – when in stressful situations she has in the past on some 15 or 20 occasions caused injury to herself, by burning herself with either a lighter or a lit cigarette. Also experienced suicidal ideation [5]
• Acquaintance of accused [7]

• Testimony of complainant’s doctor of 25 yrs: complainant has borderline personality disorder and a history of psychiatric intervention, and is on antipsychotic medication [5] – suffers from stress, mood swings, and substance abuse, suicidal ideation after being called for Crown interview
• Doctor concerned that she could seriously harm herself if called to testify – CCTV and support person / accommodations would alleviate stress [6]
• Doctor feels testimony would be less confused
• Testimony of the complainant: 55 yrs old, has drug and alcohol addictions, intense fear of testifying – feels her clarity would be affected [7]

• Accused argues there is insufficient evidence to grant the Crown’s application and deny the accused the “opportunity of being in the physical presence of his accuser, both for examination and cross-examination” [8]

• Note: the judge seems to conflate the subsections (1), (2), and (3) analyses
• The complainant has a diagnosed, specific mental illness – she is appropriately categorized as a vulnerable person – the sort Parliament meant to deal with under the legislation [9]
• “Although the legislation is directed primarily at those witnesses under 18, it also is clearly applicable to people such as the complainant who have a clear mental handicap.” [10]
• No Charter right to confront your accuser face-to-face in court – fair trial rights are not affected [10-11]
• The court should embrace advancements that further the truth-seeking process without detracting from the accused’s right to a fair trial [15]
• [15] “It may be trite, but we are all involved in the search for truth as to what in fact occurred in any particular incident. If arrangements can be made to both protect and balance both the accused's right to full answer and defence and a fair trial, and also obtain a fuller and more candid account from a mentally troubled witness of events by way of technological innovation, in my view, the court should embrace the process. Criminal law shouldn't be a static, but rather a changing and evolving process.”
• Fact of stress will impact her ability to testify and out of courtroom evidence will be less-confused and hopefully reduce the possibility of self-harm
• Applications granted [16]

• R v Buckingham, 2009 CarswellOnt 3531; [2009] O.J. No. 3546 (Ont.S.C.Jus.)
• Sexual assault
• Trial

• Crown application under s. 486.2(2) to testify behind a screen
• Discretionary

• 42 year old woman who did not know accused and would not be able to identify him
• The complainant didn’t know the defendant [5]
• The complainant suffers from anger and anxiety attacks that cause her to hyperventilate [5]

• The complainant testified in support of application from behind a screen – testified that she suffers from anger and anxiety attacks and feared she would suffer an anxiety attack if she couldn’t use a screen, agreed that seeing the accused wouldn’t affect her recollection [5], [6]
• The complainant’s counsellor, a case worker with the AIDS network, testified about the complainant’s anger and anxiety attacks when describing offence [8]
• The complainant’s mother testified about complainant’s highly emotional state at prelim [10] and also when she heard court was considering whether she’d have to testify without a screen
• The lead investigator testified about the complainant’s anxiety about testifying and that comp prepared to testify, but decision to hold a voir dire upset her [11-12]
• A Victim Witnesses Program worker testified about the complainants high anxiety and how it improved when discussing testifying behind a screen [13-17]

• Accused consented at pre-trial conference before another judge,  but it was not endorsed on the indictment – the accused then withdrew consent and the judge held a voir dire [3-4]
• Accused argued the screen would significantly impact fairness of trial, validate the compl’s fears, and that it should not be used until the compl is incapable of continuing [22-23]

• Testified behind screen at preliminary inquiry [6]
• There must be “an evidentiary basis upon which the judge can form the opinion that the order is necessary to obtain a full and candid account of the acts complained of” (relying on R v M(P), [1990] OJ No 2313) where Ont CA held that child witness who did not want to see accused did not support order, as this reason did not amount to evidence of her inability to testify fully and candidly if she were able to see him. [24]
• s. 486.1(3) factors: age not significant,  offence is shocking and violent [26]
• Trial judge “carefully observed complainant during voir dire” where she was questioned about why she did not want to testify without a screen. [25]
• Comp’s desire to not have to look into the face of the defendant is reasonable and understandable based on the allegation
• The judge is satisfied on a strong balance of probabilities that if a screen is not provided, the complainant will suffer significant emotional distress, anxiety, and possibly an anxiety attack [27]
• Adding a screen during trial if the witness cannot continue would be more prejudicial to the accused than just starting with the screen [28]
• The behavior of the accused might interfere with the complainant’s ability to give a full and candid account  (mouthed obsenities, shaking his head during voir dire) [29]
• An instruction will be given to the jury that the screen has nothing to do with the guilt or innocence of the accused and that it should not draw any inference of any kind from its use [30]
• It is an exceptional case where a screen should be used [31]
• Application granted [33] In the case at bar, the accused will be able to hear S testify and observe her. He is represented by counsel who will have the opportunity to observe her testify through the screen and will be granted leave to approach the witness and cross examine person to person without doing so through the screen. All members of the jury will be able to see S testify without their view of her being impeded by the screen. As noted counsel and Mr. Buckingham will be able to see her testify through the screen.

• R v Clark, [2007] OJ No 1553 (Ont SCJ);
• Intimidation; uttering threats, unlawful confinement, and assault:
• Trial

• Crown application under s. 486.2(2) for comp to testify behind a screen
• Discretionary

• The new section of the Code to some extent codifies the inherent jurisdiction in a superior court of criminal jurisdiction to make such an order in proper circumstances [1]
• Judge does not consider it necessary for the complainant to testify on the voir dire – evidence required to permit judge to consider the factors in 486.1(3) has been made available to an “adequate degree” [5]
• Section 486.1(3) factors:
  • The complainant is an adult with no apparent physical or mental disability [5]
  • Comp claims to be victim of physical and emotional abuse at hands of the accused with whom she lived in an intimate relationship – and the phone messages played give an indication of the basis for her concerns
  • The crimes are serious – there is some evidence supporting the seriousness of the accused’s attempts to intimidate the complainant [5]
  • Comp testified at prelim without a screen, but committal not in issue and direct and cross examination shorter and more straightforward
• The jury will be instructed that the use of the screen is unrelated to the guilt or innocence of the accused and that it should not draw any inference of this kind from its use [7]
• Application granted

• R v Collins, 2012 ONSC 6571;
• sexual assault, assault
• Trial

• Crown application under s. 486.2(2) to testify behind a screen
• Discretionary

• The complainant was 22 at trial
• The complainant was formerly in a common law relationship with the accused

• It appears that the application was granted because the complainant was under 18 at the time of the alleged offences [2]
• No further indication of reasoning for granting the application is given
• A support person was also granted on consent [2]

• R v Darling, 2006 BCPC 426; [2006] B.C.J. No. 2038,
• Assault, assault causing bodily harm, breach UTA
• Trial

• Crown application under s. 486.2(2) for CCTV
• Discretionary

• The complainant and accused were in a long-term relationship, both as friends and common law partners [4]
• The complainant is 39 and has no mental or physical disabilities [4]

• The complainant gave testimony from another room – direct and cross-examination – at one point camera zoomed in to complainant’s face [5]
• The complainant testified that she was afraid of the accused and there had been a history of abused – testified that she would be unable to give evidence, cried throughout the hearing [7]

• These reasons were provided at the conclusion of trial
• Every case will depend on the factors and how the witness presents herself [8]
• Application granted – judge focused on the complainant’s obvious and genuine distress and the nature of the charges [8]

• R v D(C), [2010] OJ No 4351, (2010), 257 C.C.C. (3d) 531 (Ont SCJ);
• First-degree murder
• Trial

• Crown application under s. 486.2(2) for CCTV
• Discretionary

• Accused young persons charged with murder and the witnesses all attended the high school where the shooting occurred, testifying about seeing accused shoot the victim or with victim around time he was shot
• 4 witnesses – 3 are over 18 by the time of trial
• The witness all expressed genuine fears about testifying because of fear of reprisals

• Two homicide detectives testified on the fears of the witnesses [3]
• An excerpt from a Toronto District School Board report on the incident, which contained information on the general level of fear in the school concerning the offenders and possible reprisals

• Accused opposed the application
• Accused argued that the evidence should not go in through the homicide detectives [3]

• With respect to allowing the detectives to testify instead of the witnesses, the judge indicated that if he needed to hear from witnesses he would have them called – but that would cause delays to get witnesses and in order to set up CCTV for the application and “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.” [3]
• All witnesses testified by CCTV at the preliminary hearing and the public was screened from seeing them, but could hear what they said   
• While evidence for these applications does not have to take a particular form, per Levogiannis, it still must meet the usual standard for admissible evidence [8] – therefore one more general report about concerns of retaliation at schools for reporting violence not relied upon – not admissible evidence [8], [9]
• Note: the judge includes the one underage witness in the same analysis at the other three, seemingly ignoring the presumption in favour of any witness under 18 [12]
• Here the witnesses are not the complainants (distinguishing from Levogiannis) [15]
• [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. . . In addition, it is difficult to substantiate the concern from an objective point of view.”
• Section 486.1(3) analysis: all except one are adults, none have disabilities, the offence is serious and shocking [12]
• None said they would be unable to give evidence in person or feared the accused, rather it is fear of reprisal [15]
• “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 intervention by the court.” [17]
• this “common and subjective concern” is not intended to be sufficient to provide a proper foundation for an order under s. 486.2. . . if that form of concern was sufficient, it would be a slippery slope” [17]
• accused persons any departure from normal trial process therefore bears special scrutiny
• Credibility is a central issue – TV might impair the jury’s ability to assess – could prejudice the accused [19]
• The threshold here to be met is one of necessity (to give a full and candid account) – no evidence of necessity – no statements that they would not otherwise testify (parsa 20-21]
• A preference to testify by CCTV does not satisfy necessity [21]
• The change from witnesses appearing in person to appearing by CCTV during the trial could cause the jury to make incorrect and prejudicial inferences (distinguishes from Levogiannis on the facts) [22]
• Application denied [25-26]

• R v Esford, 2011 BCSC 1718;
• Sexual assault (see 2012 BCSC 1223)
• Trial

• Crown application under s. 486.2(2) for a screen
• Discretionary

• Age of witness now not stated, but appears to be mid twenties (2012 BCSC 1223)
• Judge notes that screen will not block accused’s view of complainant [2], [8]
• There has to be an evidentiary basis for an order under s. 486.2(2) [4]
• The type of evidence to be given “is such that it would be difficult for anyone to speak of in front of a large group of people, whether it be in a courtroom or anywhere else.” [5]
• Standard of necessity is not about whether the complainant is reasonably fearful or needs to be protected, the issue is whether the order is necessary to obtain a full and candid account. (Cites other cases) [6-7]
• Beyond evidence that the complainant is fearful, there is evidence that she is distraught and suffering emotionally. [7]
• The fact that the screen is one-way is an important factor  -- the accused can see the witness, but the witness can’t see the accused – it doesn’t deny the accused the right to observe the complainant [8]
• Witness’s fear that she could see the accused at any point could interfere with her ability to give a full and candid account, and justifies use of screen. [9]

• R v F(M), 2010 ONSC 4018; 15 counts, including sexual assault, sexual touching, and death threats;
• Trial

• Crown applications under ss. 486.1(2), 486.2(2) (CCTV), and 715.1
• Discretionary

• Witness (T.K.) over 18 at trial, but under 18 at prelim [88]
• The accused is the T.K.’s biological mother and step-father, occurred when she was living with them (now a ward)

• T.K. allowed to testify in a separate room via CCTV with a support person [95]
• Order necessary to ensure a full and candid account and would not interfere with administration of justice
• T.K. testified outside of courtroom and had a support person at prelim – “it was only through an accident of timing that a discretionary order became necessary” (T.K. turned 18 just before trial) [96]
• Judge ordered that there be no communication between T.K. and the support person [97]

• R v Forster, 2006 BCPC 237; [2006] B.C.J. No. 1262
• Sexual assault
•  Prelim

• Crown application under ss. 486.1(2), 486.2(2) for a screen and support person
• Discretionary

• Accused was neighbours with the complainant for approx. 4 months [8]
• Crown asserts that the 50 year old  complainant is both mentally and physically disabled [8]

• Crown called evidence from two witnesses: the investigating officer and the victim support worker employed by Family Services of Greater Vancouver [3]
• Crown then abandoned mandatory application
• The officer gave evidence that the complainant had some difficulties in providing a statement, zoned out and “was slow”, and was afraid of the accused[4]
• Victim Services Worker met the complainant the day prior and the complainant expressed reluctance to testify – less reluctant when advised that worker would be with her, expressed fear of testifying if no screen
• Told worker she was bipolar

• Fear of testifying not enough: “Now, I think that it may be trite to say, but the practice in criminal courts, going back over the centuries, is if witnesses testify in public, the person accused is present in the courtroom. And witnesses, I dare say over the centuries, often are nervous, do not want to see the person that they have accused, and frankly, do not want to testify.” [6]
• Sections apply only in special cases: “These sections that we are dealing with here are obviously for those very special circumstances where there is a particular important reason to divert from this practice.“ [7]
• Test: the test is whether the accommodations are necessary in order to obtain a full and candid account [7].
• To answer the test, look to s. 268.2(3) factors:
  1. age,
  2. disability,
  3. nature of the offence,
  4. relationship with the accused
• Here, screen not necessary for a full and candid account – application denied [9]
• Application for a support person allowed, but support person must stay in the counsels' row of chairs near the witness box [9]

• R v Hockley, 2009 YKSC 62;
• Sexual assault, causing bodily harm
• Trial

• Crown application under s 486.2(2) to testify by CCTV
• Discretionary

• R v Kerr, 2011 ONSC 1231;
• Sexual assault
• Trial

• Crown application under s. 486.2(2) for CCTV (or screen)
• Discretionary

• Complainant is 38
• Complainant was platonic friends with accused for over 30 yrs

• Crown called a victim witness officer, who testified about the evidence given at the prelim, and the facts received from the complainant [3-4] (and refers to her affidavit)
• Officer described how complainant acted during Crown interview – comp said she had concerns and would lose her focus if in same room as accused and have difficulty testifying [13]
• Also, officer’s opinion that comp would benefit from testifying behind screen or CCTV
• Crown also referred to part of the prelim transcript [3]
• No evidence of mental or physical disability [11]

• Allegation that accused put penis in complainant’s vagina while in a  hot tub [8]
• Complainant testified behind a screen at the preliminary inquiry [10]
• No evidence of a mental or physical disability
• “I am not satisfied that the Crown has established that the complainant should testify behind a screen or from a child friendly room. One must remember that this is a jury trial and that there is always the concern that the jury may place undue emphasis on the screen or the child friendly room to the detriment of the accused's right to have a fair and open trial.” [16]
• Crown application denied – if Crown has medical evidence that would allow it to bring an application under s. 486.1, the judge would entertain the application [17]

• R v Khreis, 2009 CarswellOnt 8354; [2009] O.J. No. 5687 (Ont.Sup.C.J.)
• Extortion (accused threatened to expose fact of consensual sexual intercourse to comp’s family)
• Trial

• Crown application under s. 486.2(2) to testify behind a screen
• Discretionary

• The complainant will be a few days short of 20 yrs old at trial [4]
• Muslim [5]
• Had been in consensual sexual relationship with accused

• Evidence of the investigating officer –  described as “minimal” - said the complainant felt emotionally upset, violated, and did not want to see the accused. During the interview she cried.  Relieved when told she could testify behind screen at prelim. She broke down once at prelim [3]
• Accused cross-examined the officer – usual for witnesses to be nervous, he was unaware of the complainant having a mental/physical disability, complainant is almost 20, complainant did not say she would not otherwise testify [4]

• Evidentiary Basis: “The Court of Appeal has clearly established that there must be an evidential base capable of supporting the requisite opinion before the trial judge can make the order. See R. v. M. (P.) (1990), 1 O.R. (3d) 341 (Ont. C.A.)” [2]
• Preference to testify behind screen is insufficient: [6]  “On the basis of this very limited evidential record, I cannot form the opinion that the use of a screen is necessary to obtain a full and candid account from the complainant. At best the evidence establishes that in July 2008, she was embarrassed and emotionally upset about her upcoming testimony at the preliminary inquiry. In view of the wording of s. 486(21) to the effect that the screen must be necessary to obtain a full and candid account, simply establishing that the complainant was relieved when she was told she could give her testimony behind the screen is not enough. If that was the case, the use of a screen would be routinely ordered whenever the complainant preferred to testify behind a screen. Here the issue of whether the complainant could give a full and candid account without the use of a screen could not really be assessed. Moreover, there is no evidence of the complainant's present situation, nor her attitude towards her upcoming testimony during the week of March 8, 2010 when she will turn 20 years old.”

• R v Land, 2012 ONSC 4080;
• Second degree murder
• Trial

• Crown application for a support person:
  • 2 witnesses  pursuant to ss. 486.1(1), but third witness pursuant primarily to 486.1(2)
• Mandatory & Discretionary

• Three witnesses, two with acknowledged mental disabilities
• Witness #3 just turned 18
• Witnesses knew accused or witnessed murder, not victims

• Crown relies on testimony from prelim and her interviews with the detective to show that non-disabled witness needed accommodation for “full and candid” as she is immature, difficulty understanding some questions and loses patience [10]
• a mental disability can be “inferred” [10]

• Accused consents to the worker for the two witnesses with acknowledged mental disabilities, but opposes order for non-disabled witness
• Argues that order not “necessary” and that her evidence is not regarding “acts complained of”

• Two witnesses suffer from mental disability, so judge “shall” make order: s. 486.1(1)
• But, no presumption in favour of third witness, as there is no disability and she is over 18 at the time of testifying, consideration to discretionary order:
• Evidence suggests that witness #3 was not “shy, intimidated, or reticent to talk” – youth is not a barrier for her - accommodations not necessary for a full and candid account, within the meaning of s. 486.1(2) - [7]
• No evidence of physical or mental disability, and it cannot be inferred  - review of prelim transcript demonstrates why she “lost it” and “stormed out” and had to be coaxed back -[8], [ 9], [11]
• No mental disability that makes it more difficult for her to provide a full and candid account
• Witness testified at the prelim and no evidence that she had support there
• The accused is not charged with an offence against the witness, and accused had never been aggressive with her
• Section 486.1(3) factors do not indicate the need for a support person [14-16]
• Discretionary application denied: s. 486.1(2)

• R v LDP, [2008] O.J .No. 5144 (OntCJus);
• Assault
• Trial

• Crown application under s 486.2(1) to testify by CCTV
• Mandatory

• Disability must be connected to communication of evidence: “…there is a requirement that the physical and mental disability be linked to the witness's difficulty in communicating his or her evidence.” [3]
• The section creates a presumption in favour of the accommodation that is rebutted if the “opposing party satisfies that presiding judge that the Order would interfere with the proper administration of justice.” [3]
• Judicial notice taken that epilepsy is a physical disability and the courtroom is a stressful environment [4]
• Timing of Application: It is generally better for the Crown to provide as much notice of its intention to bring such an application as possible, and to bring the application in writing, but under the section, such applications can be brought at the commencement of trial [5]
• In the present case, notice was adequate [6]
• Also, “while the issue is to be decided on a case-by-case basis, my sense of our community is that neither the health care or criminal justice systems could sustain the attendance of medical doctors were they to be required to attend and give oral evidence on every application of this kind”. [6]  and no need for actual presence of doctor for “fairness” or to “provide with [further] information” [7]
• Court: “I am mindful of the arguments of [defence counsel] that there is a risk of opening the floodgates to many more such applications were a ruling to be made in favour of the Crown. Nevertheless, these applications are always to be determined on a case-by-case basis. I think that, so long as judges exercise their discretion appropriately, the concern with respect to the floodgates opening will not happen.” [8], CCTV granted
• Application granted for testimony via CCTV [9]

• R v L(MAC), 2008 BCPC 272;
• Firearms offences, uttering threats, obstruction of justice, in context of comp being involved with someone else;
• Prelim

• Crown application under s. 486.2(2) for a screen
• Discretionary

• The accused and the complainant were former spouses and have a child
• The complainant did not make a request for accommodations [30]

• Crown submissions regarding history of proceedings between comp and accused, played some wiretap of some of accused’s calls to her since charges
• No evidence on the central issue of how the complainant’s testimony would be truncated or circumscribed, or on how the accommodations would serve to overcome a tendency to give constrained testimony [23]

• Evidentiary burden: Section 486.2(2) imposes an onus upon the Crown to tender evidence that gives rise to an opinion that the accommodation is necessary to obtain a full and candid account [10]
• [10]  I interpret s. 486.2(2) as imposing an onus upon the Crown to tender evidence that persuades me, or gives rise to an "opinion" on my part (to track the language of the section), that such a testimonial accommodation is necessary "to obtain a full and candid account [from Ms. K] of the acts complained of" / the charges.  This onus is better understood when it is remembered that the s. 486.2 processes are a departure from the norm, as specified in s. 650 (of which s. 486.2(2) makes express mention). Section 650 affirms the right of an accused, subject to defined exceptions, to be present in court during the whole of his or her trial. I take that to mean present and able to observe all that unfolds in the ordinary course of the prosecution, subject (again) to defined exceptions.
• s. 486.1(3) factors:
  • Complainant is not a child and does not have a mental disability [12]
  • Serious offences, flowing from the breakdown of a spousal relationship, as well as intimidation and obstruction of justice, which are linked to the accommodations requested [13]
  • Nature of the relationship is most important in this case– history of assault, intimidation and threats [16-19]
• [23]     Cst. Coupe did not give any evidence that went directly to the question of Ms. K providing only circumscribed or truncated evidence if she were to be required to testify in M.A.C.L.'s presence without having some kind of barrier placed between them. Nor did I hear any evidence, or argument, as to how, or why, such an accommodation would serve to overcome a tendency to give constrained testimony.
• Evidence should be introduced to prove: (1) that the witness’s testimony would be truncated or circumscribed and (2) that the testimonial accommodations would serve to overcome a tendency to give constrained testimony [23]
• Test for s. 486.2(2): (citing R v Pal, 2007 BCSC 1493)
  • The standard is one of necessity [24]
  • It is a high standard [24]
  • Fear of testifying is not sufficient – the accommodations would not allay safety concerns because they do not protect the accused from knowing the witness’s identity [24]
• Such orders are extraordinary departures from the normative practice where the accused is permitted to face his or her accuser (citing R v Forster, 2006 BCPC 237) [27]
• Crown did not invoke s. 486.2(6) procedure, so the court did not hear from the complainant by way of testimony concerning the constraints that might be placed upon her candour if required to testify [30]
• Application dismissed [31]

• R. v. McDonald, [2008] O.J. No. 5714 (Ont.C.J.)
• Assault causing bodily harm and breach of UTA
• Preliminary

• Testifying against ex spouse, lengthy history
• Not young, and no disability

• Lengthy court history set out for court (history of offending, probation orders breaches)
• Officer testified and explained that complainant admits she is “putty” in the hands of the accused and still loves him, but wants to move on – she wants to “break the cycle” 

• History of abuse
• Judge grants application: “I have taken into consideration the nature of the relationship between the two, the nature of the offences and all those other circumstances I have just mentioned and there is no doubt, in my view, that the Crown has amply proved on a balance of probabilities that the complainant ought to testify outside the courtroom, and I believe the particular request was through a closed-circuit television.” [7]

• R v Miller, 2008 BCPC;
• # 141446-2-KC
• Victoria Assault
•  

• Application under s. 486.2(2) for use of screen
•  
• Discretionary

• Adult female with mood disorders, panic attacks, anxiety and depression
• In an intimate relationship with the accused

• Witness testified that she had panic attacks, anxiety, depression, would be able to give her testimony in clearer manner if screen in place
• gave evidence on application with a screen

• Judge notes that accused can view complainant through the screen
• Judge observed witness getting more and more anxious during cross-examination
• The allegation is that she was assaulted with a chemical compound causing burns to much of her body, a serious offence – a profound shock to her to be assaulted
• Judge says “I am satisfied that indeed the screen being employed would enable me to get her testimony in a better, clearer manner, and that if the screen was not in place, that the account she provides would not be complete”
• The screen will remain – application granted

• R v Obelikpyha, 2012 BCPC 282;
• Sexual assault
• Trial

• Crown application under s. 486.2(2) for CCTV testimony
• Discretionary

• Complainant is 18 and has no mental or physical disability
• The accused was a stranger and has not seen him since incident [4]

• The witness support person testified that the complainant was afraid, and was nauseous, vomiting and crying and felt under the accused’s control when earlier giving evidence [2]

• Complainant is very young
• No physical or mental disability
• Allegation is a sexual assault, accused a stranger
• The judge had already observed the complainant in the morning and noticed “she spoke softly through an interpreter and made no eye contact with the judge or counsel and was having difficulty giving evidence” [5]
• In view of nature of the charge and young age, satisfied that the accommodation is necessary to obtain a full and candid account [6]
• Judge says it is important that the complainant and support person are visible in the other room, and that there be no communication between them when the witness is testifying [6]

• R v Pal, 2007 BCSC 1493;  [2007] B.C.J. No. 2192
• Kidnapping, unlawful confinement, assault causing bodily harm, sexual assault
• Trial

• Crown application under s. 486.2(2) for male comp to testify behind a screen
• Discretionary

• The accused kidnapped the complainant because they were trying to locate his brother-in-law [2]
• The sexual assault charges relate to torture used to get him to talk [2]

• Affidavit of complainant, explaining the allegations, and alleging that he continues to be terrified for himself and his family, and that his family has gone into hiding.
• Claimed other perpetrators remain at large (worried if they see him, they will track him down) [4]

• The right of an accused person to be present in court throughout the trial and to observe his accusers and those who testify against him is a fundamentally important right and recognized by s. 650 of the Criminal Code – it must not be lightly interfered with [5]
• Necessity standard requires evidence: “there must be an evidentiary basis to establish the standard of necessity set out in the subsection.” [6]
• The standard of necessity “is not whether the witness reasonably has a fear or whether the order is necessary to protect the witness” [8] – must be “necessary to get a full and candid account from the witness of the acts complained of”
• There must be evidence that lack of accommodation “would affect his ability to give a full and candid account of what happened” [9]
• No evidence from complainant that he would be unable to give a full and candid account [9]
• Application dismissed [10]

• R v Piotrowski, 2011 ONCJ 561;
• Assault and uttering death threat
• Trial

• Court ordered support person, under s. 486.1(2)
• Discretionary

• Accused lived in the building next to the complainant
• Accused has mental health issues

• None indicated
• Order granted due to disruption at trial caused by accused

• Note: Accused was removed pursuant to s. 650(2)(a) for misconduct during proceedings, for yelling at and threatening the complainant [2,3]
• Accused could not control outbursts during comp’s testimony [5] and complainant was shaken and upset
• Witness testified that she was “petrified” of accused [1]
• Judge sought to move the complainant to another room and have her testify via CCTV pursuant to s. 486.6(2) but the equipment was being used in another trial, had witness box moved inside the courtroom
• Accused was eventually brought back in. [5]
• Judge also made an order for a support person (her fiancé) to be present pursuant to s. 486.1(2), despite the fact that he had already testified, because of the material risk that the complainant would not be able to give her evidence effectively and the alternative was to exclude the accused [6].
• The disruptive behaviour continued and the accused was once again excluded [7]

• R v Pizzolato, 2007 ONCJ 722; [2007] O.J. No. 5618,
• Criminal harassment, possession of a weapon
• Trial

• Crown application under s. 486.2(2) for CCTV testimony, or in the alternative, a screen
• Discretionary

• The 25 year old female complainant dated the accused for about two years – harassment started after they broke up [2]
• The complainant  does not have mental or physical disabilities [4]

• The complainant testified via CCTV pursuant to s. 486.2(6) – testified that if she saw the accused she wouldn’t be able to speak [2]
• Described the accused’s harassing behaviour after they broke up
• Testified that being in a different room when testifying helps [3]

• Accused opposed [7]
• Argued that proceedings only summary, and other facts distinguishing case from Clark

• The must be an evidentiary basis upon which the judge can form the opinion that the accommodation is necessary to obtain a full and candid account (citing R v M(P), [1990] OJ No 2313) [5]
• Considering the nature of the offence, that the complainant is an adult with no disabilities, the nature of her relationship with the accused, and her evidence that she could not effectively testify, she would “choke up”, and how she appeared on the application, the application is granted [10]
• [8]     In my view, evidence that a witness will be nervous and even fearful in giving testimony is not enough unless that nervousness and fearfulness are such that it would prevent the witness from giving a full and candid account of the events complained of. There is nothing to suggest that the complainant in this case would give less than a candid account of the alleged events. The issue is whether or not she would be able to give a full account of the events. She testified at the commencement of her evidence that if she were able to see the defendant she did not think she would be able to come out with anything and that she was nervous just knowing he was outside in the courtroom. She concluded her evidence-in-chief testifying that in imagining herself in the courtroom, she would just choke up.

• R v Ragan, 2008 ABQB 658, [2008] A.J. No. 1574;
• Conspiracy to commit murder and assault;
• Trial

• 50 year old man (witness)  was hired by the accused to kill two individuals – Witness was shot in the back of the head and fears for his safety [2]
• Application rooted in fear for his safety should he testify 
• Witness suffered a significant brain injury as a result [5]

• Records from witness’s post-shooting hospitalization and reports of rehab team suggest that he has significant brain inury and “persistent anxiety” about testifying [5]
• Doctor’s opinion that minimizing contact with perpetrators would be best interests of witness’s mental health [6]
• Records indicated witness has fear of further violent attacks, based on hearsay he had heard

• Accused opposes, witness is critical and that cross-examination would be impaired and negatively impact the trier of fact's assessment of his credibility (especially important because it is a jury trial) [12]
• Witness’s anxiety no ore than any witness to a serious crime would experience [13]
• Technology may cause audio lag and disrupt flow of cross [14]

• Crown assures arrangements can be made for witness to be in Edmonton while trial in Lethbridge (hard copies of evidence will be available at both places
• “virtual appearance” can be arranged 
• Jury trial
• Witness safety is a factor under s. 486.2(4), not s. 714.1 where the offence is listed in s. 486.2(5) [26]
• s. 714.1 cannot be used for reasons of witness safety – this is beyond the intent of the section [32]
• s. 486.2(4) does not extend beyond the offences listed in s. 486.2(5) [34]
• Crown has not produced compelling evidence for testimonial accommodation [58] – he is a critical witness, his evidence is controversial and credibility will be highly contested, and a jury may infer that the witness testifying by video link that the accused was connected with his shooting [58]

[33] In contrast, s. 486.2(4) was intended to address witness safety. That is what its plain language says and, when read in context; the conclusion to be drawn is that Parliament intended s. 486.2(4) to be "a tool that provides a perfect solution to the problem of witness safety" (Allen at para. 15).

[34] Section 486.2(5) describes the offences to which s. 486.2(4) applies - cases involving criminal organizations, terrorism, Security of Information Act offences, and intimidation of justice system participants. It does not go beyond that, evidencing Parliament's intention to limit virtual evidence in witness safety cases only to the most vulnerable or at-risk witnesses.

[35] As Duncan J. observed in Allen, to interpret s. 714.1 as giving residual authority to allow virtual evidence based on concerns for witness safety in situations that do not fit the limiting parameters of ss. 486.2(4) and (5) would be to render those limitations and the section itself redundant.

[61] In brief, while I am satisfied that the technology would be adequate to permit a free-flowing cross-examination and that the right to face one's accuser can be met by virtual presence, I am in no way satisfied that the health of this critical witness, whose credibility must be assessed by a jury, is such that it warrants testimonial accommodation. Alternate measures can be taken to assuage [witness’s] anxiety.

• Application denied

• R v Rohrich, [2009] OJ No 4050 (Ont SCJ);
• Sexual assault
• Trial

• Crown application under ss. 486.2(2) (CCTV) and 715.1
• Discretionary

• Complainant is 20 (17 at time of offence) and has no mental or physical disabilities [10]
• Went to house where two accused were, drank, danced blacked out

• Accused are opposing application [3]
• Some suggestion that counsel thought appt of counsel obviated need for CCTV

• Although 17 at time of offence, 20 by time of trial and therefore order is not mandatory [7]
• Witness did not have a mental or physical disability and had already testified at preliminary without an accommodation [7, 10]
• Application denied under s. 486.2 [10]
• Remainder of the case focuses on the s. 715.1 application

• R v Salehi, 2011 ONCJ 39;
• Sexual assault
• Trial

• Crown application under s. 486.2(2) for CCTV
• Discretionary

• Accused is the great uncle of both complainants, who are sisters, offences occurred when they were around 10 years old, and now 20 and 23 [3]
• No evidence of mental/physical disability for complainants – both expressed fear of the accused [8-9]
• Complainant one stated she suffers from depression – no documentation presented [15]

• Age of witness favours granting application: The complainants are 20 and 23 and do not have a significant degree of life experiences that gives a person “the wisdom to separate all potential fears from reality” [14]
• Crown did not assert mental disability, but the judge notes the first complainant’s statement that she suffers from depression [15-16]
• Nature of the offence favours granting application: Sexual attacks are very serious – though the judge acknowledged these are not the most serious incidents in this case, he held that attacks on sexual integrity are by their nature very disturbing to the individual, and are aggravated where the complainant is a child and the perpetrator is a family member [17-19] – testifying by video-link would allow the witness to feel less intrusion on her privacy and thus more relate to relate her allegations. [19]
• The nature of the relationship – here there is familial closeness, though not as close as a parent or sibling [20]
• [21]  “A statement by a potential witness that she will not testify about her allegations if forced to do so in open court causes me great concern. If I was led to believe that this was not a sincere (even if misguided) belief then I would discount it and give it no weight. But where I cannot discount it, it goes to the central issue and that is "getting a full and candid account". Clearly the witness Complainant #1 is more adamant in this regard than Complainant #2. Even so, I think I must consider the real possibility for both witnesses that they would be unable to testify. In the final analysis however, I give this factor the least weight because it is so very much a statement of the subjective feelings of the witness.”
• Refers to two cases for factual similarities / dissimilarities
• [26] “I am the trial judge in this case and need not be concerned with the possible prejudicial effect upon a Jury that allowing this style of testimony would entail. I am also mindful of the fact that the facilities in this courtroom allow the defendant (and the presiding Judge) to see and hear the witness. The rights to cross-examine are not diminished.”
• Application granted for both witnesses [28]

• R v Tejeda-Rosario, 2009 Carswell Ont 9057;
• Sexual assault
• Trial

• Crown application under s. 486.2(1) for CCTV
• Mandatory

• Complainant was the patient of the accused (his psychiatrist)
• Complainant has psychological issues – post-traumatic stress disorder (PTSD) and suicidal inclinations [43]

• The complainant’s current psychiatrist testified that the complainant demonstrates symptoms of PTSD and has expressed suicidal inclinations – could affect his ability to focus and concentrate if required to give evidence in a normal manner [43]
• The complainant testified that he was concerned about being coherent in court and confirmed his psychiatrist’s description. Also stated he had previously been committed and would return to the hospital if not allowed to testify outside of the courtroom [43-44]

• Crown applies on basis of complainant’s concern about being in the presence of accused and ability to testify would be severely compromised
• Application for a screen granted [44] and that steps be taken to ensure that complainant not be able to see the accused while entering or leaving the courtroom.

• R v T(M), [2009] OJ No 2384;
•  Sexual assault, sexual interference
• Trial

• Crown application under s. 486.2(2) (screen)
• Discretionary

• The accused is the complainant’s grandfather
• The complainant was 5 to 8 yrs old at the time of the offences – She turned 18 less than a month before trial and is 8 months pregnant [2]
• No mental or physical disability

• Testimony of detective – the complainant expects she will freeze up, cry, be intimidated by the accused, and her evidence will be worse [5]

• Testified at preliminary inquiry with a screen and assumed she would get to do so at trial
• Facts: witness is somewhat introverted; prefers not to see accused; concerned about the prospects of having to give evidence without a screen; without a screen, she expects to cry; feels accused would intimidate her; eye contact would make her nervous; she found that the screen was helpful at the preliminary hearing; in her words "It was like he was not there"; without a screen, she feels she would be more responsive in giving her evidence because she might see him; she feels uncomfortable about talking about the alleged sexual assault and sexual interference; she feels she might "freeze up" if the screen were not in place; without a screen, she fears that she will speak fast, stutter and the quality of the evidence would be worse.
• “Having regard for the very personal, intimate, and private nature of the acts complained of, the relationship of trust between a grandfather and his granddaughter, the trauma of the event, the necessity to recount it in a public forum, and the fact that a screen will not obstruct or interfere with the trial” the trial judge granted the application ”[12]
• Will instruct the jury not to draw an adverse inference

• R v Y(L), 2010 ONSC 7257; [2010] O.J. No. 527
• Sexual assault, trafficking marijuana
• Trial

• Crown application under s. 486.2(2) to testify behind a screen
• Discretionary

• Reasons for granting application not repeated [17]
• Judge notes after seeing the witness testify at the trial behind the screen that “I am more convinced than ever that the use of the screen by this 18 year old witness assisted her in this case to give to the best of her ability a full and candid account of the evidence as she understood it to be.” [17]