Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary

2. Review of Bill C-2 Case Law and Legal Literature (cont'd)

2. Review of Bill C-2 Case Law and Legal Literature (cont'd)

2.2 Accommodating Child Witnesses: Introduction (cont'd)

2.2.2 Use of a Screen or Closed-circuit Television: s. 486.2

If the Crown or child requests it, s. 486.2(1) now requires that a child "shall" be permitted to testify via closed circuit television or from behind a screen, unless the court is of the "opinion that the order would interfere with the proper administration of justice."[51] The presumption of permission for use of a screen or closed-circuit television under s. 486.2(1) is also applicable to any case where an adult witness is suffering from "mental or physical disability" that would affect the ability to communicate.

Under s. 486.2(2) adults who are not disabled may be permitted to testify from behind a screen or via closed-circuit television but only if the court is "of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of." As discussed in R. v. Pal,[52] per Joyce J., for s. 486.2(2) to be used by an adult, it is not sufficient for the witness to satisfy the court that he or she is "fearful," it must be shown that the fear would render the witness unable to "give a full and candid account."

It was held in R. v. Levogiannis[53] that use of a screen under former subsection 486.2(1) did not violate the rights of an accused under s. 7 or s. 11(d) of the Charter.

A constitutional challenge to the current subsection 486.2(1) was rejected in R. v. S.(J.)[54] by Metzger J. In that case a screen was set up so that the young complainants could testify without seeing the accused. Counsel for the accused submitted that the screen changed the entire dynamic of the court process which negatively affected his rights to be present at trial in the full sense of the word. The British Columbia Supreme Court followed R. v. Levogiannis and concluded that the absence of face to face testimony did not violate the accused's right to a fair trial.

The British Columbia Court of Appeal inupheld the trial decision R. v. S.(J.),[55] and ruled that s.486.2 is constitutionally valid. The Court of Appeal held that R. v. Levogiannis could not be distinguished on the basis of the presumptive current wording of s. 486.2, noting that the unique position of child witnesses in the criminal justice context was also supported by the Supreme Court in R. v. L.(D.O.).[56] The Court of Appeal noted that, as was discussed at length in R. v. L.(D.O.), the "rules of evidence and procedure have evolved through the years in an effort to accommodate the truth-seeking functions of the courts, while at the same time ensuring the fairness of trial." [at para 35] The British Columbia Court of Appeal concluded (at para. 43):

s. 486.2 is merely the next step in the evolution of the rules of evidence. These rules seek to facilitate the admissibility of relevant and probative evidence from children and vulnerable witnesses while maintaining the traditional safeguards for challenging the reliability of their evidence. Rules of evidence must be construed in light of a criminal justice system that encourages the goal of "attainment of truth". Over the years, the use of testimonial aids has been subject to ongoing procedural and evidentiary changes, which may continue to evolve. In this case, the changes are not in conflict with constitutionally guaranteed principles of fundamental justice. The presumptive nature of s. 486.2 does not dispense with any of the traditional safeguards for ensuring that an accused receives a fair trial.

In R. v. C.(A.W.),[57] the child complainant testified behind a screen that allowed her to avoid seeing the accused, but which also prevented the accused from hearing or seeing the complainant while she testified. Only after a substantial portion of her testimony was finished was the hearing problem rectified and only for the balance of the proceedings; the visual problem was never rectified. In convicting the accused, the trial judge relied heavily on the child complainant's evidence, and upon her demeanor in giving it. A new trial was ordered, with the Alberta Court of Appeal holding that an accused has a right to more than mere physical presence in the courtroom during the trial; the right extends to seeing and hearing the evidence and witnesses at trial. Given the improvements in child-friendly courtrooms in many jurisdictions, these types of problems should become less common over time. However, R. v. C.(A.W.) is a reminder that judges must be vigilant to ensure effective participation by the accused in his own trial, and should attempt to remedy any problems during the course of the trial.

In R. v. Henry,[58] the accused was charged with two counts of sexual assault and sexual interference against his step-daughter. The Crown applied for an order under the former s. 486.2(1) of the Criminal Code, to permit the 15-year-old step-daughter to testify from behind a screen. In dismissing the application, Quinn J. held that the Crown had not proven on a balance of probabilities that the screen was "necessary to obtain a full and candid account of the acts complained of from the complaint." The Crown had not demonstrated the child witness's "inability" to testify, but only her "unwillingness." The trial judge also refused to infer that she was traumatized by the alleged assaults, since no specific evidence on this subject was adduced. The decision in Henry, however, was made under the previous s. 486(2.1), and under the new provision, s. 486.2(1), the outcome of a similar case might well be different as it establishes a presumption that a child witness may use a screen, if it is requested, making clear that there is no evidentiary burden on the Crown to justify use of a screen. A number of cases under the new provision have emphasized that the test is now quite different, and the onus is now on the accused to demonstrate that use of a screen would interfere with the proper administration of justice" (see, e.g., R. v. McDonald[59] ).

In R. v. Elmer,[60] Godfrey Prov. Ct. J. permitted two adolescent complainants to testify from behind a screen, observing that the previous provision set out a "different and higher standard," with the current s. 486.2(1) being "mandatory" due to the use of the word "shall." In R. v. McAllister,[61] Taylor J. made an order permitting a child to testify from behind a screen with a support person close by, observing that change in wording in the provision that came into force in 2006 is "significant," since the onus is now on the accused to establish that use of a screen would "interfere with the proper administration of justice," which the judge characterized as a "very high standard."

The fact that the Crown intends to subsequently apply under s. 715.1 to have the complainant adopt her video-taped statements is not relevant to the application for a screen or use of closed-circuit television.[62] It is clear that a combination of testimonial aids can be used along with a video-recorded statement. Thus in R. v. Flores,[63] per McEwan, J. the child witness testified from behind a screen with comfort items and a support person present in the witness box, and during her testimony, she adopted the contents of a video-recorded statement.

In R. v. T.(M.),[64] the Crown was seeking an order pursuant to section 486.2(2) that the complainant be allowed to testify behind a screen.  The accused was the grandfather of the complainant and was charged with sexual assault.  An issue arose, however, because at the time of the trial the complainant was 18 years of age, with her birthday having been in the month previous. In making the order that a screen be used, the judge considered the age of the complainant, the nature of the offence and the relationship involved, the fact that the order was necessary to obtain a "full and candid account from the witness of the acts complained of" and that the complainant had testified behind a screen at the preliminary hearing and been told that the same would apply at the trial. Closed-circuit Television

Like the former s. 486.2(1), the new provision does not expressly refer to closed-circuit television, but it clearly is intended to allow for a child or other vulnerable witness to testify via closed-circuit television. As recognized in R. v. J.W.,[65] by Tweedale, J., who quoted extensively from the Parliamentary debates leading to the enactment of Bill C-2, the use of closed-circuit television is intended "to make it easier for child and youth witnesses to testify." A television link permits the child to be examined and cross-examined from outside the court, in a smaller, less intimidating setting.  

In R. v. E.D.,[66] Thomas J. concluded that an order for use of closed-circuit television should only be made if evidence satisfied the court that use of a screen would not be sufficient to protect the child. He observed: "allowing a witness to testify outside the courtroom is an extraordinary event in the administration of justice but at times necessary to secure the proper administration of justice, the evidence considered must preclude a less intrusive option." Bala et al.[67] argue that the presumption in favour of applications found in the new s. 486.2(1) means that if the Crown makes an application for use of closed-circuit television, it is generally not necessary to establish that use of a screen would provide the child with inadequate protection.

In R. v. G.A.P.,[68] Simonsen J. rejected an application made by the Crown for a child witness to testify outside the courtroom by closed-circuit television, and instead ordered that a screen be used. The primary reason for requiring use of the screen was that counsel for the defence planned on extensive cross-examination of the child, referring to certain documents that counsel was not prepared to present before questioning, and the court could not observe the documents on closed circuit-television. However, other cases have held that the Crown (or a witness) will ordinarily have the "right" to determine what type of device (closed-circuit television or a screen) to use: R v. J.W.,[69] per Tweedale Prov. Ct. J. The "right" of a witness to determine what device will be used is subject to its availability and to the judge being satisfied that in a particular case, given the nature of the proposed evidence, the "administration of justice" requires some other mode, as occurred in G.A.P.

In R. v. T. (S.B.),[70] the British Columbia Supreme Court considered a judicial review application brought by the Crown after the trial judge granted an application under section 486.2(1) , but ruled that the witnesses should testify from behind a screen rather than via closed-circuit television despite the request from the Crown to allow the two 15 year old female complainants to testify via closed circuit television. In the Supreme Court, Smart J. commented that section 486.2(1) creates a presumption in favour of the testimonial accommodation requested by the Crown; a judge or justice hearing an application under section 486.2(1) does not have an independent discretion to determine which testimonial accommodation he or she prefers or believes is better in the circumstances. It is only when the judge or justice is determining whether the requested testimonial accommodation would interfere with the proper administration of justice that he or she may consider the nature of the testimonial nature accommodation. However, Smart J. did not make an order as, by the time that the application was heard, another judge was assigned to the trial. In obiter dicta, Smart J. suggested that the presumption in section 486.2(1) applied only if the Crown made an application; if a witness under the age of 18 years was making an application without the support of the Crown, then section 486.2(2) would apply and there would be no presumption of use but rather the witness would need to establish that the particular form of accommodation was needed to "obtain a full and candid account". In making these obiter comments, Smart J. acknowledged that "most of the authorities" cited to the court took the position that the presumption would apply whether the application was made by the Crown, a witness under age 18 or a witness who has a disability.

In some cases children who are testifying outside of the courtroom may seem more "remote" or "distracted."   For example, in R. v. P.(M.R.),[71] during the playing of a video-recording her interview by police, the 11 year old complainant was outside the courtroom in a child-friendly room observing the recording on a television monitor. The child-friendly room was linked via closed-circuit television to the courtroom. At the conclusion of the DVD recording the complainant was questioned by the Crown and, adopted the contents of the recording.  Bascom Prov. J. commented:

During the period of time when the DVD was being played in court, Ms. S.S. was observed on the television monitor. The Court noted during this period of time she did not watch the monitor for long periods of time. Ms. S.S. looked out the window or looked down on a desk. Although this demeanour would have been of concern if Ms. S.S. was an adult, the Court cannot say that her actions while watching the DVD caused the Court to question her credibility or reliability based on her demeanour.

The accused in R. v. P.(M.R.) was acquitted, though not because the Court rejected  reliability of the videotaped interview, but because of other inconsistencies in the Crown's case.

In R. v. Black,[72] Parrett, J. initially allowed an application to allow a 14-year-old complainant in a sexual assault case to testify via closed-closed circuit television; however, during her testimony the witness became uncooperative and consequently an order was made for her to complete her testimony from within the courtroom. The judge noted that while testifying by closed-circuit television, the girl displayed "disdain" for the judicial process, which was reflected in demeaning statements that she made towards counsel and in her refusal to answer questions about inconsistencies in her testimony. Parrett J commented:

It is also necessary to state unequivocally that the nature of her evidence and the difficulties which occurred during the course of it served to highlight the dangers in what I perceive to be a growing trend of the Crown in this region to rely on the provisions of s. 486.1 [sic] of the Code to allow witnesses to testify remotely by closed circuit facilities. Such a process, while highly useful in appropriate cases, has, in my view, inherent and unacceptable dangers which are starkly emphasized in the present case.

Parrett J. concluded that the use of a closed-circuit television was interfering with the administration of justice and terminated its use for the girl. In contrast, the latter portion of her testimony, completed within the courtroom, was done with "little apparent difficulty and with a good deal more recognition of the proper trial process." The judge concluded: "In my view, the danger highlighted by this process in the present case serves to emphasize the importance of both the Crown and the court considering carefully the final ten words of s. 486.1(1) before giving such orders. The prospect of these events occurring before a jury is not one that would be easily dealt with." Constitutionality of s. 486.2

The constitutionality of s. 486.2, as enacted in 2005, was upheld in R. v. C.N.H.,[73] per Dhillon Prov. Ct.J.; R. v. Dhixon,[74] per Gould Prov. Ct.J.; and R. v. Schindler,[75] per Klinger Prov. Ct. J. The courts have held that this provision does not violate the Charter s. 7, with its guarantee that deprivations of liberty are to be "in accordance with the principles of fundamental justice" or s. 11(d), with its guarantee of the right of an accused to a "fair trial." In R v. C.N.H., Dhillon Prov J. reviewed some case law about the constitutionality of the pre-2006 provision and considered a submission made to the Parliamentary Committee about the need for the enactment of this provision, and concluded (at para. 33-41):

Parliament is entitled to undertake reform of the law of evidence and, in relation to s. 486.2, has consulted widely on how to improve the experience of child and other vulnerable witnesses in the criminal justice system. The Supreme Court of Canada has said that the rules of evidence have not been cast as constitutionally protected principles of fundamental justice. Additionally, as is well noted in Levogiannis, supra, an accused has no constitutional right to face-to-face confrontation of a witness. Although s. 486.2 provides a procedural directive as to the manner in which child testimony may be given, it does not preclude the accused from using the full arsenal of procedural and substantive rights at his disposal in the adversarial system.

In the case at bar, the use of CCTV affords the accused a right to a full cross-examination of the witness. This right is not compromised by having the witness out of the physical presence of the accused because the CCTV technology permits the "virtual presence" of the witness in the courtroom. As Crown has submitted, "a witness testifying via CCTV is still giving viva voce, real time, cross-examinable evidence the credibility of which can be contemporaneously assessed."

As has been noted by courts which have received CCTV or video evidence, the quality of evidence can be equal to or better than viva voce in person testimony particularly if technological enhancement is available. If the technological quality proves to be substandard, the court retains an overriding discretion to require the personal attendance of the witness in court… .

In my view, s. 486.2 does not place any burden on the accused which jeopardizes fair trial rights. It calls on the Crown to satisfy the prerequisites of age of the witness, and the remaining conditions under s. 486.2(7). The Court must be satisfied that proper arrangements have been made for the contemporaneous receipt by the judge and the accused of out-of-court testimony, and for the accused to communicate with counsel during the testimony.

The legislation creates a presumptive rule that witnesses under the age of 18, if they apply, will be granted the right to testify with the use of a testimonial aid unless the court is "of the opinion" that such an order will interfere with the proper administration of justice. As discussed above, there is a valid legislative basis for requiring the presumptive or mandatory order, given the lack of success in affording aids to child witnesses under the predecessor legislation.

In order to preclude the imposition of a testimonial aid, which is presumptive under s. 486.2, the judge must form the opinion that the order would interfere with the proper administration of justice. I am of the view that a judge who forms such an opinion becomes "satisfied" as to that particular state of affairs… .

Section 486.2 preserves the trial judge's discretion to refuse such an order if the judge forms the opinion, whether from her or his own enquiries or from matters raised by the Crown or the accused, that the proper administration of justice may be adversely affected. This, in my view, does not place any undue burden on the accused and does not affect the accused's rights to a fair trial.

The decision of Dhillon Prov. Ct. J. in R. v. C.N.H. offers the most extensive discussion of the constitutionality of this provision, and her decision has been cited in all of the subsequent cases that have upheld the validity of s. 486.2.