reliability

Ontario’s First Criminal Trial Since Courts Close Takes Place Over Zoom

Written on Behalf of Affleck & Barrison LLP

On March 17, 2020, the courts in Ontario shut down to reduce the transmission of COVID-19.  As time passed, the courts began to hear bail hearings, appeals, motions and some sentencing hearings using a combination of telephone, video and only a few in-person hearings.  All trials were on placed on hold for nearly four months as measures were developed to contain the deadly virus and decisions were made as to how to safely proceed with re-opening the courts.

The lives of many Ontarians have been put on hold awaiting trial, whether in jail or those released on strict bail conditions.  Witnesses and victims have also been placed in a holding pattern with many likely suffering from anxiety and stress of not knowing when and how their proceedings will be handled.

Those trials that were scheduled for the spring of 2020 have been re-scheduled.  Courts are now proceeding with trials and preliminary hearings that were already scheduled in July and August. 

Recently, Ontario courts began resuming operations with strict health and safety protocols in place.  In Ontario, the first criminal trial was finally successfully held in provincial court through video conferencing.

TRIAL BY ZOOM

The first and only trial to be conducted through video conferencing in Ontario took place between June 8 to 12.  This was the only trial to take place in Ontario during the province wide court shutdown due to COVID-19.  The case was R. v. S.L..  Both parties requested that the trial take place over Zoom and also requested that the judge provide written reasons allowing such proceeding to take place for the benefit of all parties as the pandemic continues to affect criminal justice in our country.

Justice Lemon agreed with counsel that the case before him was an appropriate trial to be held by video conferencing, along with the assistance of counsel, the parties and the court staff. 

The case took place over 5 days on the Zoom platform (4 days of trial and 1 day or argument) with no significant technological issues.  The lawyers did not wear the customary black robes and the judge did not wear his sash.  There were only two witnesses and a mid-trial voir dire to address the issue of opinion evidence. 

The accused had signed a “Waiver and Consent” to allow for a virtual trial.  Justice Lemon relied upon section 650(2)(b) of the Criminal Code to grant him the jurisdiction to allow the trial process to proceed in the absence of the accused, on consent, subject to appropriate terms and conditions.

Justice Lemon noted that this was an appropriate case to proceed by Zoom as the charge against the accused allowed for trial by judge alone, there were only a few witnesses involved, a few documents and a few issues before the court.  Furthermore, all parties were agreeable to proceed by Zoom and were experienced with the process.  Justice Lemon did not have any concerns with his ability to assess credibility over Zoom. 

Justice Lemon permitted the trial to proceed with the accused “out of the court” with the following conditions:

  1. The accused must participate in the trial using video conferencing software for the entirety of the proceedings; and
  2. The accused must alert the court or his counsel if he is unable to see or hear  the trial proceedings.

WHAT HAPPENED AT TRIAL?

Sherman Lai was charged with sexually assaulting D.H., who was 22 years old at the time, in 2005 when she was a patient at his Traditional Chinese Medicine clinic.  S.L. testified that she attended the clinic as she was suffering from digestive issues causing bloating and gas and she was concerned about facial acne.  She alleged that at her last appointment Lai performed a vaginal exam on her at his clinic.

Although Justice Lemon found S.L. to be a credible witness, he found her to be unreliable due to changes in her testimony.  He found that there were several inconsistencies between S.L.’s statements on the stand and the information that she gave prior to the trial regarding the year of the incident and her initial reasons for visiting Lai.

The Crown provided an expert witness to prove that internal vaginal exams were not part of the practice of traditional medicine.  However, Justice Lemon questioned the breadth of the expert’s knowledge and stated that the testimony did not account for the entirety of traditional Chinese practices.

The question before Justice Lemon was whether what occurred in the exam room was part of Traditional Chinese Medicine.  If it was not, was the physical contact by Lai of a sexual nature. 

Justice Lemon stated:

[T]here may be circumstantial evidence of a sexual assault, but the totality of the evidence leaves open the reasonable conclusion that what S.L. did was perform Traditional Chinese Medicine.  Other than the part of the body touched, there was nothing to suggest other than a clinical practice.

Justice Lemon was not satisfied beyond a reasonable doubt that S.L.’s treatment by Lai was contrary to Traditional Chinese Medicine and therefore found Lai not guilty of the charge against him.

We will continue to follow the government’s response to the pandemic and how it will affect the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

The Problem with Eyewitness Testimony

Written on Behalf of Affleck & Barrison LLP

In trials involving eyewitness testimony, the frailty of memory often becomes a key part of the defence strategy, . Eyewitness accounts can make a deep impression on a jury, especially when the witness is expresses a high level of certainty. However, although a confident eyewitness can make or break a trial, experience shows that mistaken identifications have and do occur and courts have long recognized this.

Many people believe that human memory works like a video recording of our experience, but according to experts, memories are actually quite fragile and susceptible to contamination. As the recent trial of Jian Ghomeshi shows, memories can change over time and be impacted by stress and trauma. The science behind why people remember certain details and not others, and why our memories and the way we recount them can change over time have been closely studied and arise frequently in court.

Several studies have been conducted on human memory and on the propensity for eyewitnesses to remember events and details that did not occur. It is not uncommon for victims to genuinely and confidently identify their attackers only to be proven wrong by DNA evidence years later, as was the case in the Netflix documentary Making a Murderer.

 But this does not mean that eyewitness identification is always unreliable. Sometimes eyewitness identification can be used to exonerate a person who is wrongfully accused of a crime. However, courts are now aware of the ability of third parties to introduce false memories to witnesses. There is only one chance to test the memory of an eyewitness as their memories can become contaminated. That is why it is so important that the testing conditions are adequate. Proper interview techniques and procedures by police and prosecutors are essential to ensure the reliability of identification evidence.

If you would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.