Witness Screen and Closed-Circuit Video Testimony
Section 650 requires that the accused be present for all evidence heard in a trial. An exception can be made under s. 486.2 for evidence to be given where the accused does not have direct contact with the witness due to separation by a screen or closed-circuit television.
On application by a prosecutor or witness, the judge may order that their testimony be heard either behind a screen or from a different room so that the witness cannot see the accused.
- Purpose of s. 486.2
The purpose of the section is to "[enable] the young complainant to be able to recount the evidence, fully and candidly, in a more appropriate setting, given the circumstances, while facilitating the elicitation of the truth."
- Concurrent Statutory and Inherent Jurisdiction
There is also a free-standing inherent jurisdiction in the superior court to permit the use of screens where there are concerns for the witnesses safety.
- Impermissible Adverse Inferences
The court may not make any adverse inferences from whether or not an order for a screen or video link is made.
Anytime that a screen or video is used in a jury trial, the judge must give instructions to the jury that no negative inference should be drawn from its use.
- Only Judge Decides Appropriate Aid
It is up to the judge to make the determination of what type of testimonial aid is the most appropriate for the witness. The Crown can only make a recommendation.
- Onus and Standard of Proof
Under the new version of 486.2, the Crown no longer needs to adduce any evidence before it is entitled to use an aid. There is an automatic presumption that it can be used once the Crown asks for it. There is no onus on the respondent of an application to establish that the aid would interfere with the administration of justice.
- Reason to Refuse Aid
The Court "can only refuse to make an order if it is satisfied the order would interfere with the proper administration of justice".
- Form of the Accommodation
There is some debate in the case law on who is to determine the type of accommodation to be ordered. Some say that it is the applicant who chooses unless the chosen form would interfere with the proper administration of justice". Other courts see the inherent jurisdiction of the courts as authority to chose the form of accommodation from the beginning.
Section 486.2 does not violate s. 7.
R v Levogiannis, 1990 CanLII 6873 (ON CA), (1990), 62 CCC (3d) 59 (ONCA), per Morden ACJ, at pp. 291 to 292
- R v Letourneau, 1994 CanLII 445 (BC CA) (1994), 87 CCC (3d) 481 (BCCA), per Cumming JA, at pp. 517 to 521
(8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
- R v NHP, 2011 MBQB 31 (CanLII), per Byrk J
R v Wight, 2011 ONCJ 414 (CanLII), per Lalande J, at para 21
R v Etzel, 2014 YKSC 50 (CanLII), per Gower J, at para 15
NHP, supra, at para 16
NHP, supra, at para 17
R v SBT, 2008 BCSC 711 (CanLII), per Smart J, at paras 41 to 42
R v Etzel, 2014 YKSC 50 (CanLII), per Gower J, at para 11
Etzel, ibid., at para 12
R v CTL, 2009 MBQB 266 (CanLII), per Martin J
R v Brown, 2010 SKQB 420 (CanLII), per Gunn J
- Levogiannis, supra
Witnesses Under 18 Years or Disabled Witness
The governing section is 486.2 which states:
- Valid Reasons
Reasons such as shyness and nervousness have been accepted as valid.
Witnesses 18 Years-old or More and Non-Disabled
When the witness is over the age of 17 and is not disabled, the court has discretion to order the use of a close-circuit television or a screen where it would "facilitate the giving of a full and candid account" or where it would be in the "interests of justice".
The onus is upon the applicant to establish on a balance of probabilities that the witness will suffer from significant "emotional distress, anxiety and possibly an anxiety attack or anxiety attacks" and that a screen will be required for a full and candid account.
The application for the testimonial aid can be made any time before or during the proceedings.
The exercise of discretion under s. 486.2(2) must have "some proper basis" arising from the record or submissions.
The party applying for the screen may need to call evidence. If the witness for whom the testimonial aid is sought needs to testify, they may testify using the aid in the voir dire. A failure to do so may result in the court rejecting the application for the use of a video link or screen. Despite it not being necessary, it can be a good idea however to present formal evidence by affidavit or oral evidence. The Court may rely on any evidence on the record.
- see s. 486.2(2.1) "An application ... may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings."
- R v Hoyles, 2018 NLCA 46 (CanLII), per Hoegg JA, at para 11
see s. 486.2(6)
- R v MACL, 2008 BCPC 272 (CanLII), per Woods J
Hoyles, ibid. ("This is not to say that formal evidence is never necessary, or that it is not a good idea. Rather, it is to say that trial judges make proper discretionary rulings day in and day out in the absence of formal evidence.")
R v NM, 2019 NSCA 4 (CanLII), per Bourgeois JA (3:0), at paras 66, 70
The court must take into account:
- 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.
Evidence from a victim services officer on their observations and opinions of the witness can be relevant.
Balanced against the interests of the protection of the witness, the concerns that are raised by the protection include: 
- testimony outside of the courtroom will not "bring to bear the seriousness of the occasion in the same way as a courtroom"
- The ability of counsel and the judge to assess the witness’s testimony may be compromised;
- There is no reasonable opportunity for counsel to show documents to the witness since the witness would be in another room, and,
- The possibility of technical malfunction, including ensuring that the witness does not hear certain exchanges occurring within the courtroom.
It is not sufficient that the witness be "embarrassed and emotionally upset about her upcoming testimony" and that the option to use a screen would be a "relief" to her.
Central to the analysis of the factors is whether the accommodation "will enhance or undermine the truth-seeking function of our criminal trial process."
- s. 486.2(3) which cites factors in 486.1(3)
see also R v SBT, 2008 BCSC 711 (CanLII), per Smart J, at para 40
- e.g. R v Kerr, 2011 ONSC 1231 (CanLII), per Matheson J
- R v GAP, 2007 MBQB 127 (CanLII), per Simonsen J, at para 14
- R v Khreis, 2009 CanLII 74221 (ON SC), per Charbonneau J
SBT, supra, at para 40
R v Etzel, 2014 YKSC 50 (CanLII), per Gower J, at para 19
Children and Disabled
There is a presumption of availability of protection. The court however must be satisfied that the "testimonial aid will not interfere with the proper administration of justice".
- GAP, supra, at para 16
Section 486.2 was added to the Code on January 2, 2006, replacing a provision that was permissive in imposing a screen where necessary to "get a full and candid account" of the acts. This would often make a potentially fragile witness testify to establish grounds. The amendment was added to make it easier for child witnesses to be protected.
The previous version of 486.2 read: