Difference between revisions of "Witness Screen and Closed-Circuit Video Testimony"

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; Form of the Accommodation
 
; 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".<ref>
 
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".<ref>
''R v SBT'', [http://canlii.ca/t/1x4r1 2008 BCSC 711] (CanLII){{perBCSC|Smart J}}{{ats|41-42}}<br>
+
''R v SBT'', [http://canlii.ca/t/1x4r1 2008 BCSC 711] (CanLII){{perBCSC|Smart J}}{{atsL|41 to 42|http://canlii.ca/t/1x4r1#par41}}<br>
''R v Etzel'', [http://canlii.ca/t/gdswk 2014 YKSC 50] (CanLII){{perYKSC|Gower J}}{{at|11}}<br>
+
''R v Etzel'', [http://canlii.ca/t/gdswk 2014 YKSC 50] (CanLII){{perYKSC|Gower J}}{{atL|11|http://canlii.ca/t/gdswk}}<br>
 
</ref> Other courts see the inherent jurisdiction of the courts as authority to chose the form of accommodation from the beginning.<ref>
 
</ref> Other courts see the inherent jurisdiction of the courts as authority to chose the form of accommodation from the beginning.<ref>
{{ibid1|Etzel}}{{at|12}}<br>
+
{{ibid1|Etzel}}{{atL|12|http://canlii.ca/t/gdswk}}<br>
 
''R v CTL'', [http://canlii.ca/t/26cp9 2009 MBQB 266] (CanLII){{perMBQB|Martin J}}<br>
 
''R v CTL'', [http://canlii.ca/t/26cp9 2009 MBQB 266] (CanLII){{perMBQB|Martin J}}<br>
 
''R v Brown'', [http://canlii.ca/t/2fn2z 2010 SKQB 420] (CanLII){{perSKQB|Gunn J}}<br>
 
''R v Brown'', [http://canlii.ca/t/2fn2z 2010 SKQB 420] (CanLII){{perSKQB|Gunn J}}<br>
Line 118: Line 118:
 
; Onus
 
; Onus
 
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.<ref>
 
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.<ref>
''R v Buckingham'', [http://canlii.ca/t/2415l 2009 CanLII 31184] (ON SC){{perONSC|Turnbull J}}{{at|27}}<br>
+
''R v Buckingham'', [http://canlii.ca/t/2415l 2009 CanLII 31184] (ON SC){{perONSC|Turnbull J}}{{atL|27|http://canlii.ca/t/2415l}}<br>
cf. ''R v GAP'', [http://canlii.ca/t/1rsd7 2007 MBQB 127] (CanLII){{perMBQB|Simonsen J}}{{at|16}}<br>
+
cf. ''R v GAP'', [http://canlii.ca/t/1rsd7 2007 MBQB 127] (CanLII){{perMBQB|Simonsen J}}{{atL|16|http://canlii.ca/t/1rsd7}}<br>
 
</ref>
 
</ref>
  
Line 129: Line 129:
  
 
The exercise of discretion under s. 486.2(2) must have "some proper basis" arising from the record or submissions.<ref>
 
The exercise of discretion under s. 486.2(2) must have "some proper basis" arising from the record or submissions.<ref>
''R v Hoyles'', [http://canlii.ca/t/ht5qj 2018 NLCA 46] (CanLII){{perNLCA|Hoegg JA}}{{at|11}}
+
''R v Hoyles'', [http://canlii.ca/t/ht5qj 2018 NLCA 46] (CanLII){{perNLCA|Hoegg JA}}{{atL|11|http://canlii.ca/t/ht5qj}}
 
</ref>
 
</ref>
  
Line 139: Line 139:
 
Despite it not being necessary, it can be a good idea however to present formal evidence by affidavit or oral evidence.<ref>
 
Despite it not being necessary, it can be a good idea however to present formal evidence by affidavit or oral evidence.<ref>
 
{{ibid1|Hoyles}} ("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.")<br>
 
{{ibid1|Hoyles}} ("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.")<br>
''R v NM'', [http://canlii.ca/t/hx4vs 2019 NSCA 4] (CanLII){{perNSCA|Bourgeois JA}} (3:0){{ats|66, 70}}<br>
+
''R v NM'', [http://canlii.ca/t/hx4vs 2019 NSCA 4] (CanLII){{perNSCA|Bourgeois JA}} (3:0){{atsL|66, 70|http://canlii.ca/t/hx4vs#par66}}<br>
 
</ref>
 
</ref>
 
The Court may rely on any evidence on the record.
 
The Court may rely on any evidence on the record.
Line 147: Line 147:
 
====Factors====
 
====Factors====
 
The court must take into account:<ref> s. 486.2(3) which cites factors in 486.1(3)<br>
 
The court must take into account:<ref> s. 486.2(3) which cites factors in 486.1(3)<br>
see also ''R v SBT'', [http://canlii.ca/t/1x4r1 2008 BCSC 711] (CanLII){{perBCSC|Smart J}}{{at|40}}<br>
+
see also ''R v SBT'', [http://canlii.ca/t/1x4r1 2008 BCSC 711] (CanLII){{perBCSC|Smart J}}{{atL|40|http://canlii.ca/t/1x4r1}}<br>
 
</ref>
 
</ref>
 
*the age of the witness,  
 
*the age of the witness,  
Line 161: Line 161:
 
Balanced against the interests of the protection of the witness, the concerns that are raised by the protection include:
 
Balanced against the interests of the protection of the witness, the concerns that are raised by the protection include:
 
<ref>
 
<ref>
''R v GAP'', [http://canlii.ca/t/1rsd7 2007 MBQB 127] (CanLII){{perMBQB|Simonsen J}}{{At|14}}</ref>
+
''R v GAP'', [http://canlii.ca/t/1rsd7 2007 MBQB 127] (CanLII){{perMBQB|Simonsen J}}{{AtL|14|http://canlii.ca/t/1rsd7}}</ref>
 
* testimony outside of the courtroom will not "bring to bear the seriousness of the occasion in the same way as a courtroom"
 
* 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;
 
* The ability of counsel and the judge to assess the witness’s testimony may be compromised;
Line 172: Line 172:
  
 
Central to the analysis of the factors is whether the accommodation "will enhance or undermine the truth-seeking function of our criminal trial process."<ref>
 
Central to the analysis of the factors is whether the accommodation "will enhance or undermine the truth-seeking function of our criminal trial process."<ref>
{{supra1|SBT}}{{at|40}}<br>
+
{{supra1|SBT}}{{atL|40|http://canlii.ca/t/1x4r1}}<br>
 
''R v Etzel'', [http://canlii.ca/t/gdswk 2014 YKSC 50] (CanLII){{perYKSC|Gower J}}{{at|19}}<br>
 
''R v Etzel'', [http://canlii.ca/t/gdswk 2014 YKSC 50] (CanLII){{perYKSC|Gower J}}{{at|19}}<br>
 
</ref>
 
</ref>
Line 197: Line 197:
 
===History===
 
===History===
 
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.<ref>
 
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.<ref>
''R v GAP'', [http://canlii.ca/t/1rsd7 2007 MBQB 127] (CanLII){{perMBQB|Simonsen J}}{{at|16}}</ref>
+
''R v GAP'', [http://canlii.ca/t/1rsd7 2007 MBQB 127] (CanLII){{perMBQB|Simonsen J}}{{atL|16|http://canlii.ca/t/1rsd7}}</ref>
  
 
The previous version of 486.2 read:
 
The previous version of 486.2 read:

Revision as of 01:50, 13 August 2019

General Principles

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."[1]

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.[2]

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.[3]

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.[4]

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.[5]

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.[6] There is no onus on the respondent of an application to establish that the aid would interfere with the administration of justice.[7]

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".[8]

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".[9] Other courts see the inherent jurisdiction of the courts as authority to chose the form of accommodation from the beginning.[10]

Constitutionality

Section 486.2 does not violate s. 7.[11]

  1. R v Levogiannis, 1990 CanLII 6873 (ON CA), (1990), 62 CCC (3d) 59 (ONCA), per Morden ACJ, at pp. 291-92
  2. R v Letourneau, 1994 CanLII 445 (BC CA) (1994), 87 CCC (3d) 481 (BCCA), per Cumming JA, at pp. 517 to 521
  3. 486.2 ...
    (8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
  4. Letourneau, supra
    Levogiannis, supra
  5. NHP, supra
  6. 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
  7. GAP, supra
    NHP, supra, at para 16
  8. NHP, supra, at para 17
    GAP, supra
  9. R v SBT, 2008 BCSC 711 (CanLII), per Smart J, at to 42#parhttp://canlii.ca/t/1x4r1#par41 paras http://canlii.ca/t/1x4r1#par41{{{3}}}
    R v Etzel, 2014 YKSC 50 (CanLII), per Gower J, at para http://canlii.ca/t/gdswk
  10. Etzel, ibid., at para http://canlii.ca/t/gdswk
    R v CTL, 2009 MBQB 266 (CanLII), per Martin J
    R v Brown, 2010 SKQB 420 (CanLII), per Gunn J
    Wight, supra
  11. Levogiannis, supra

Witnesses Under 18 Years or Disabled Witness

The governing section is 486.2 which states:

Testimony outside court room — witnesses under 18 or who have a disability

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such 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, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
...

Application

(2.1) An application referred to in subsection (1) or (2) 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 or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
...

Conditions of exclusion

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

No adverse inference

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
2005, c. 32, s. 15; 2014, c. 17, s. 12; 2015, c. 13, s. 15, c. 20, s. 38.


CCC

Valid Reasons

Reasons such as shyness and nervousness have been accepted as valid.[1]

  1. R v Elmer, 2006 BCPC 81 (CanLII), per Godfrey J

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".

486.2
...

Other witnesses

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of 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 would 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.
...

Factors to be considered

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.
Same procedure for determination

(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
...


CCC

Onus

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.[1]

Procedure

The application for the testimonial aid can be made any time before or during the proceedings.[1]

The exercise of discretion under s. 486.2(2) must have "some proper basis" arising from the record or submissions.[2]

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.[3] A failure to do so may result in the court rejecting the application for the use of a video link or screen.[4] Despite it not being necessary, it can be a good idea however to present formal evidence by affidavit or oral evidence.[5] The Court may rely on any evidence on the record.


  1. 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."
  2. R v Hoyles, 2018 NLCA 46 (CanLII), per Hoegg JA, at para http://canlii.ca/t/ht5qj
  3. see s. 486.2(6)
  4. R v MACL, 2008 BCPC 272 (CanLII), per Woods J
  5. 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 70#parhttp://canlii.ca/t/hx4vs#par66 paras http://canlii.ca/t/hx4vs#par66{{{3}}}

Factors

The court must take into account:[1]

  • 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.[2]

Balanced against the interests of the protection of the witness, the concerns that are raised by the protection include: [3]

  • 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.[4]

Central to the analysis of the factors is whether the accommodation "will enhance or undermine the truth-seeking function of our criminal trial process."[5]

  1. 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 http://canlii.ca/t/1x4r1
  2. e.g. R v Kerr, 2011 ONSC 1231 (CanLII), per Matheson J
  3. R v GAP, 2007 MBQB 127 (CanLII), per Simonsen J, at para http://canlii.ca/t/1rsd7
  4. R v Khreis, 2009 CanLII 74221 (ON SC), per Charbonneau J
  5. SBT, supra, at para http://canlii.ca/t/1x4r1
    R v Etzel, 2014 YKSC 50 (CanLII), per Gower J, at para 19

Children and Disabled

486.2...

Other witnesses

(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.
...
2005, c. 32, s. 15.


CCC

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".[1]

  1. GAP, supra, at para 16

History

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.[1]

The previous version of 486.2 read:

486...
(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.


This section was amended in 2015[2] to reflect an intention to lower the standard that existed previous.[3]

  1. R v GAP, 2007 MBQB 127 (CanLII), per Simonsen J, at para http://canlii.ca/t/1rsd7
  2. See Canadian Victims Bill of Rights Act, S.C. 2015, c. 13, s. 15.
  3. R v NM, 2019 NSCA 4 (CanLII), per Bourgeois JA (3:0)