Allowing testimony via CCTV without hearing formal sworn evidence

  • May 22, 2019
  • James A. Gumpert, Q.C.

On Jan. 23, 2019, the Nova Scotia Court of Appeal released its decision in R. v N.M., 2019 NSCA 4.

In N.M. the appellant argued that the trial judge erred in exercising his discretion under s. 486.2 by permitting the complainant, who was 19 years old at the time of trial, to testify via CCTV. N.M.’s testimony concerned her father sexually assaulting her from when she was a child until she was a teenager. The appellant argued that the judge did not have a proper evidentiary basis on which to grant the order under s. 486.2.

At the outset of the trial, the Crown made a motion to permit the complainant to testify via CCTV. The prosecutor had not filed a formal motion nor an affidavit, either by the complainant or someone else in support of the order to testify via CCTV. At trial the request was opposed by the appellant’s trial counsel, who argued that the Crown had failed to file any evidence in support of the motion.

The trial judge did grant the motion and permitted the 19-year-old to testify via CCTV. In his decision, the trial judge noted that the victim would have difficulty communicating the evidence given the familial proximity.

The appellant had argued that the trial judge should not have granted the request without an evidentiary foundation being provided. On appeal, the Crown responded that the sworn evidence was not necessary in the present case in order for the trial judge to properly exercise his discretion.

The Nova Scotia Court of Appeal allowed the appeal for reasons unrelated to the s. 486.2 ground of appeal.

However, the court dismissed the ground of appeal relating to 486.2 and held that the trial judge did not err in exercising his discretion to allow testimony via CCTV without hearing formal sworn evidence. The judge had allowed the CCTV based on unsworn statements made in court by the prosecutor that the victim would have difficulties in presenting her evidence with her father in the same room facing her.

At paragraphs 67 to 69 of the decision, the Nova Scotia Court of Appeal distinguished the decision in R. v S.D.L., 2017 NSCA 58, which dealt with s. 714.1. It noted that s. 714.1 contained a completely different test and purpose than s. 486.2.

It would be important to focus on s. 70 of the decision if you are faced with a need to make an application under s. 486.2.

If a prosecutor knows in advance of the need to apply under s. 486.2, then following the Nova Scotia Court of Appeal decision the prosecutor should give notice of the motion under s. 486.2 with accompanying affidavits.

But if the victim in your case on the day of trial for the first time tells you of an inability to give a full and candid account, then put on the record as much as you can about reasons why you are making the s. 486.2 application at the start of the trial. In the actual s. 486.2 application the prosecutor should put as much as he or she can on the record about why the victim cannot testify properly without CCTV, for example, what the victim tells the prosecutor about her inability to communicate the evidence in a full and candid manner. The decision in N.M. should be of help in those circumstances in permitting the s. 486.2 application to succeed without a sworn evidentiary basis.

James A. Gumpert, Q.C. is a Senior Crown Counsel with the Nova Scotia Public Prosecution Service. He is an Executive member of the Canadian Bar Association National Criminal Justice Section.