OVERVIEW

[1]           The accused is charged with having criminally harassed Patricia Guénard, a waitress he met at a bar, over a nine-month period (s. 264(1)(3)(a) C.C.). The Crown has elected to proceed by indictment. Mr. Shenker is representing himself, although in a separate interlocutory ruling, the Court appointed counsel under s. 486.3(2) C.C. for the purpose of cross-examining the complainant.

[2]           Shortly before the trial, Quebec’s Provincial Department of Public Health[2] made a formal recommendation requiring all persons “in the workplace” to wear masks - at all times - in an effort to curb the aggressive spread of COVID-19, particularly its variants.

[3]           Said recommendation was ultimately implemented by the Court of Quebec, including its Criminal Division. In fact, a formal Directive to that effect (the contents of which are described below) was posted on the Court’s website on April 6^th 2021. By April 7^th 2021, the Directive was largely respected by witnesses, attorneys, judges and court staff in the Montreal courthouse.

[4]           The trial in the case at bar is contested. The accused denies the allegations and he wishes to present evidence. As is often the case in such matters, the assessment of credibility and reliability will take centre stage. It is trite law that Mr. Shenker, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt.

[5]           For this reason, on the morning of trial, on its own initiative, the Court raised the issue of face coverings, canvassed the impact of the new Directive on the trial process in this specific case and invited submissions by all the interested parties.

[6]           The overarching objective of the Court was to strike a proper balance between preserving the accused’s fundamental constitutional rights and ensuring public safety within the four walls of the courtroom. Given the competing interests involved, such matters rarely lend themselves to “one-size-fits-all” solutions.

[7]           Instead, in my respectful view, it is incumbent upon trial judges, on a case-by-case basis and in the exercise of their discretionary power to control their process, to craft the appropriate method of receiving testimony without too hastily diluting an accused’s right to a fair trial.

[8]           Since March of 2020, the courts have made significant efforts to adapt to a novel and ever-changing situation. The judicial response to the pandemic is a challenging task. A certain level of flexibility and innovation has been essential to preserving an efficient operation of our system.

[9]           There are however limits to that flexibility.

[10]        To be clear, I state from the outset that the public health crisis in the province of Quebec is unquestionably serious. The effects of the COVID-19 pandemic have been far-reaching. The death toll and hospitalization rates have been horrendous in the Montreal area. Every aspect of our lives has been significantly affected. What was expected to last “a few weeks” became months, and now well over one year. Public officials, private businesses and families have scrambled to adjust to an ever-changing situation. By way of various orders in council or ministerial orders, the provincial government has ordered individuals to stay home, minimize unnecessary travel and reduce all outings to bare essentials, such as shopping for groceries. Gatherings (indoor or outdoor) of groups of any size have been banned for months. Visits between friends and families are prohibited. A universal curfew has been in place for some time. The entire population has been on a lockdown of sorts, which is a common phenomenon around the planet right now - albeit in varying degrees.

[11]        Social distancing and heightened attention to hygiene have been at the forefront of our collective effort to curb the devastation brought on by this novel virus. As the months passed, masks and face coverings also became an essential tool in the battle to get things under control.

[12]        Nothing in these reasons should be interpreted as nonchalance or a lack of concern for the obvious and pressing need for aggressive social precautions. It is unspeakably tragic that 10 709 souls have been lost to this disease in the province of Quebec alone.

[13]        That being said, the justice system cannot be held in abeyance until the entire population has been properly vaccinated or until the illness has run its course through our society.[3] While the courts must react appropriately to important changing conditions in extraordinary times, there must still be an adherence to the fundamental rules of our system. Many of these rules, which have existed for centuries in the common law and have been enshrined in our Constitution for the benefit of accused persons, should not be too easily abandoned due to any immediate exigencies at any given time.

THE APPLICABLE PUBLIC HEALTH DIRECTIVES

[14]        Since the summer of 2020, extensive measures have been put in place at the Montreal courthouse to ensure the safety of litigants and visitors. These measures have been devised in accordance with government policies and directives, which in turn rely on the advice of qualified epidemiologists. The Trial Coordinator’s Office, the Ministry of Justice and Court Services have all made significant efforts to ensure everyone’s well-being.

[15]        Social distancing is scrupulously monitored in the Montreal courthouse, with limited numbers of individuals being allowed to converge in one place at any given time. The floors in public areas are covered with arrows, directing lines and cordoned-off sections.

[16]        Access to the elevators is limited and staggered.

[17]        Everyone entering the building is questioned as to the presence of symptoms. Court staff, security officers and special constables ensure that no one is granted entry if they are not wearing a mask. If needed, masks are provided free of charge.

[18]        In terms of volume and foot traffic, the building is noticeably less busy than it was in pre-pandemic times, undoubtedly due to the increased reliance on video-conferencing apparatus for counsel.

[19]        All courtrooms of the Criminal Division of the Court of Quebec are now equipped with video-link equipment.

[20]        Moreover, each courtroom of the Criminal Division has undergone a significant makeover, with plexiglas panels installed around the tables and desks of all those involved in the proceedings: the judge, the clerk, each attorney, the witness stand and the detainee’s dock. In order to ensure social distancing, most of the seats in the gallery have been condemned, either covered with signs or cordoned-off with tape or ribbon.

[21]        Thus far, the in-courtroom practice regarding face masks has been consistent with Order in Council No. 810-2020, made on July 15^th 2020. Although technically, courtrooms were expressly excluded from the mandatory wearing of face coverings, in practice, masks have been required. Witnesses, accused and [rare] spectators have been required to wear a mask upon entering each courtroom. Lawyers waiting their turn also wear their masks in the gallery. Certain exemptions have typically been granted to the following categories of individuals:

1.   Counsel who are actively making oral submissions to the Court;

2.   Individuals (including lawyers and the judge) who are seated, and:

(a)  Who respect a 2-metre distancing radius between themselves and others; or

(b)  Who are separated by a physical barrier capable of limiting contagion.

[the latter exception does not apply to those seated in the gallery, since there are no plexiglas partitions there. In other words, all those other than lawyers or witnesses in the course of testifying must wear masks in the courtroom]

[22]        On March 9^th 2021, on account of the COVID-19 variants that have proved to be more easily transmissible, the INSPQ issued a recommendation that face coverings be worn at all times in all workplaces. This action was based in part on the fact that various outbreaks had been documented in workplaces across the province in recent weeks. In addition to the primary objective of reducing transmission, by implementing a full-time mask mandate, the INSPQ sought to simplify the rule (as opposed to recommendations involving exceptions, task-specific rules or potentially confusing conditions precedent), in addition to minimizing the manipulation of the mask, which could in turn increase the risk of contamination.[4]

[23]        On April 6^th 2021, in a commendable act of cooperation and concern for the public health, the Court of Quebec issued a Directive formally adopting the INSPQ’s recommendation. As drafted, the Directive allows for a judge to derogate from the baseline mask requirement:

Prenez note qu’à compter du 7 avril 2021, le port du couvre-visage est obligatoire en tout temps pour toute personne présente dans une salle d’audience, sauf autorisation contraire du tribunal.

[emphasis added]

POSITIONS OF THE PARTIES

[24]        As mentioned above, the issue of face coverings was pre-emptively raised by the Court, not by the parties.

[25]        In their submissions, both lawyers exposed their positions with moderation and they were very sensitive to the importance of public health measures, which is commendable.

[26]        Court-appointed defence counsel (s. 486.3 C.C.) expressed a preference that the complainant’s face be uncovered for the purpose of her cross-examination.

[27]        The self-represented accused, who will perform his own cross-examinations of the other witnesses, made the same request.

[28]        Both the accused and counsel submit that seeing the witnesses’ faces is an integral part of their cross-examinations. M^e Angers, an experienced litigator, explains that observing the witness’s body language goes hand-in-hand with the spoken words uttered.

[29]        Furthermore, M^e Angers respectfully asks that he be allowed to remove his mask while asking questions, as the face covering makes his job significantly more difficult.

[30]        For the Crown, M^e Pagé agrees that having witnesses testify without masks is far better in terms of allowing the Court to properly assess the probative value of their accounts.

[31]        Crown counsel does not make a request to remove his own mask during questioning; however, he is ready to do so if the witnesses or the Court have difficulty hearing him.

[32]        Crown counsel, defence counsel and the self-represented accused all indicated that they were comfortable with witnesses testifying without masks. They had no specific health issues or concerns to raise. Moreover, witnesses without masks would not cause them anxiety of any kind.

[33]        At the Court’s request, the Crown canvassed how the prospective witnesses felt about the matter. All five witnesses indicated that they were comfortable testifying without masks. None had any particular health concerns of sources of anxiety. In fact, the witnesses preferred testifying without a mask on.

[34]        That being said, at least one witness said that she would like to monitor the situation as it evolves in the following months. Today, she is readily willing to testify without a mask. However, she may change her mind if the sanitary crisis deteriorates further.

[35]        Finally, Mr. O.B., the certified English-French interpreter addressed the Court. Mr. Shenker has requested an English trial pursuant to s. 530(1) of the Criminal Code. All the Crown witnesses plan on testifying in French.

[36]        As such, O.B. will have the task of performing a consecutive interpretation throughout the trial. He also respectfully requests that he be exempt from wearing a face covering for the following reasons:

·        In his experience as an interpreter, when witnesses leave their masks on, he often has difficulty hearing them, which typically requires questions and answers to be constantly repeated, further extending the length of the trial, which is already protracted due to the consecutive translation.

·        O.B. explains that the quality of his work will suffer is he is bound to wear a mask. Although not visible to the untrained eye, court interpreters use methods involving shallow breathing in order to keep up with the rhythm of the witnesses’ testimonies. This limits their oxygen intake. This is also why he always interprets from a standing position. His method of breathing is different than it is in his day-to-day life. Due to the shallow breathing technique, even when he is not wearing a mask, long days of interpretation cause him headaches and may ultimately make him less efficient as the hearing advances.

·        If he were to wear a mask, this would impede his breathing further, making his task even more difficult and potentially having deleterious effects on his health and concentration.

·        His duties require him to constantly drink water during a live in-court interpretation. If he is bound to wear a mask, this will involve repeated manipulation of the mask.

ANALYSIS

[37]        Seeing a witness testify is one of the basic features of our adversarial criminal justice system. In fact, its importance is two-pronged: it assists the judge in his assessment of the witness’s account and it serves as an invaluable tool for the cross-examining attorney.

[38]        Although triers of fact must exercise caution in doing so,[5] it is clear that they may take into account a witness’s behaviour, demeanour and way of testifying in assessing his or her credibility.[6] This includes the accused.[7] After all, this is one of the most commonly cited “overwhelming advantages” mentioned by appellate courts in support of their deferential approach to findings of fact made by a trial judge. This is also why live trials take place, as opposed to making factual findings by reading transcripts from examinations on discovery, as was reiterated by our Court of Appeal in the recent R. c. Gauthier.[8]

[39]        The importance of this factor will vary from case to case. However, it must not be understated.

[40]        In R. v. N.S., albeit in a different context, the Supreme Court of Canada stressed the importance of seeing the witness’s face. In fact, it held that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only (or the most important) factor in cross-examination or accurate credibility assessment, but its importance is too deeply rooted in our justice system to be set aside absence compelling evidence.[9]

[41]        Writing for the majority, McLachlin C.J. explained that the common law, supported by provisions of the Criminal Code and judicial pronouncements, proceeds on the basis that the ability to see a witness’s face is an important feature of a fair trial. In the absence of negating evidence, this common law assumption cannot be disregarded lightly.[10]

[42]        Face-to-face confrontation is the norm.[11] In fact, various provisions allowing for out-of-court testimony often depend on the accused’s ability to observe the witness, which in turn suggests that not seeing the person’s face during testimony may limit the fairness of a trial.[12]

[43]        The Supreme Court also recognized that covering the face of a witness may impede effective cross-examination, which is integral to the conduct of a fair trial and a meaningful application of the presumption of innocence.[13] Non-verbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assist in getting at the truth.[14]

[44]        As for the trial judge’s ability to assess credibility and reliability, changes in a witness’s demeanour can be highly instructive.[15]

[45]        With great respect to those holding the opposite view, these were no mere throwaway lines by the Supreme Court. Instead, they go to the very core of our adversarial system.

[46]        The pandemic did not change any of these principles.

[47]        The Supreme Court’s observations, made in reference to a niqab, are entirely applicable to the issue of wearing a surgical mask or a cloth COVID face covering. Both garments hide large portions of the individual’s face, leaving visible only the eye area.[16]

[48]        To be clear, these considerations do not apply equally - as blanket statements - in all cases. For instance, where a witness is providing testimony of a technical nature, it may only be marginally useful (if at all) to see his face. The same can be said of “context witnesses” whose testimony is relevant and useful, but not pertaining to hotly contested factual issues at trial.

[49]        Similarly, the concerns raised here would likely be less pressing in the context of a sentence hearing or a pre-trial Charter motion regarding the facial validity of a search warrant.

[50]        In the case at bar, the allegations are contested. This is the trial on the merits. The accused is facing a serious charge, taken by indictment. The consequences in the event of a conviction are extremely serious. The complainant is the Crown’s main witness.

[51]        In order to preserve the defence’s fundamental right to effectively cross-examine the complainant, counsel will need to see her face. M^e Angers will be monitoring the witness for not only her words, but also her facial cues. A facial gesture may sometimes reveal uncertainty or deception. A keen cross-examiner may pick up on non-verbal cues and use them to uncover the truth.

[52]        Let us recall that a lawyer was specifically appointed for the purpose of cross-examination pursuant to s. 486.3 C.C. In that sense, the accused’s right to control his defence has already been curtailed somewhat, by forcing an outside attorney on him. It would not be appropriate to compound the situation further by creating obstacles to a fulsome cross-examination.

[53]        As for the Court (in its capacity as trier of fact), it is difficult to imagine how I could perform an exhaustive assessment of the complainant’s and the accused’s testimony[17] while seeing only their eyes.

[54]        The following example illustrates the Court’s concerns. If the lower half of a person’s face is hidden (from the bridge of the nose and upper cheekbones downwards), and only the eyes are visible, can a trier of fact adequately distinguish:

1)    A person who is smiling;

2)    A person who is squinting;

3)    A person who is wincing in pain?

[55]        At first blush, it would appear that the position of the eyes, eyebrows and forehead might be quite similar in all three scenarios. Yet, they are fundamentally different.

[56]        Finally, I also consider the interests of the complainant. Testifying in any legal proceeding is always a stressful, daunting exercise. Testifying as an alleged victim in a criminal harassment matter is particularly trying. Here, it is alleged that Ms. Guénard was harassed over a nine-month period. In the circumstances, the justice system should strive to make her testimony as comfortable as possible. This is so not only out of respect for the witness, but also in order to create conditions that are the most conducive to obtaining a full and frank account of the events.

[57]        To impose upon a complainant the obligation to testify regarding potentially traumatic events through a mask that is pressed upon her face, limiting her air intake and muffling her words, would not be in the interest of justice.

[58]        I wholeheartedly agree with Bourgeois J.’s statement in R. v. Bdeir that judges share a responsibility for the safety and security of the people attending the courtroom where we preside.[18]

[59]        The safety of the public must always be a primary consideration for the Court. It is non-negotiable.

[60]        However, this will not always require an all-or-nothing approach. The Court is very mindful of the safety of those in the courtroom. However, I consider the following factors, all of which are reassuring, to a certain extent:

·        As mentioned above, the courtrooms in the district of Montreal are typically empty during these pandemic times, other than staff, security, counsel and the accused.

·        All those sitting in the gallery are wearing masks, including the bailiff and the special constable.

·        All lawyers seated at counsel’s tables are wearing masks, unless they are actively making submissions and they have been granted leave by the court to remove their face covering.

·        The court clerk is wearing a mask.

·        The judge is wearing a mask, unless I am addressing the parties for extended periods.

·        There are plexiglas partitions separating each and every active participant during the trial. During her testimony, the complainant will be surrounded by three panels of plexiglas, effectively separating her from the clerk and each of the questioning lawyers. In fact, two sheets of plexiglas separate the witness from the judge.

·        During any recess, break or adjournment, the witness is to immediately put her mask back on.

·        Access to the Montreal courthouse is regulated. Masks are required everywhere. Copious amounts of hand sanitizer are available to all users at various checkpoints throughout the building and in each courtroom.

[61]        Obviously, none of these measures can effectively reduce the risk of transmission to zero. This is a tragic reality that we are constantly reminded of. Despite everyone’s best efforts, despite the various government initiatives and the INSPQ’s recommendations, the daily infection rates still count in the hundreds. In theory, more can always be done. We can wear triple-layer masks. We can restrict all trials to video-links only. We can extend longer curfews, impose house arrest, shut down all businesses and schools indefinitely. These matters and measures are the government’s prerogative. The courts shall not enter into the political arena or micromanage the State’s handling of the pandemic.

[62]        Instead, this Court is limited to ruling on the specific question of whether or not it is appropriate for a complainant, an accused and witnesses in a contested criminal trial to testify with their faces hidden. The world has already slowed down significantly, and rightfully so. However, it cannot grind to a halt. If criminal trials are to take place, they must still respect the fundamental rights of accused.

[63]        Besides, in a general sense, almost everyone in the “workplace” (i.e. the Montreal courthouse) will in fact be wearing a mask at all times, which is consistent with the spirit and letter of the Public Health Authority’s recommendation. Only the witness, one at a time, in the course of his testimony, in a plexiglas-protected space, will remove his mask for a temporary period.

[64]        This practice has been followed for several months with apparent success. It has not been brought to the Court’s attention that there have been any COVID outbreak patterns stemming from the Montreal courthouse.

[65]        Furthermore, with great respect, I cannot agree with the proposition in R. v. Bdeir that these specific rules of evidence should evolve to account for evolving societal values or priorities related to the pandemic.[19] Some rules of evidence and procedure can be adjusted appropriately;[20] others cannot. Obviously, the justice system must strive to ensure the safety of all of its participants. But the pandemic cannot serve as a basis for diluting key features of the presumption of innocence and the right to full answer and defence. These are the cornerstones of our entire system.

[66]        While it is normal that an accused be subjected to a more complicated, slower, delayed and inconvenient trial due to the COVID-19 pandemic, it is not acceptable that he be subjected to an unfair trial.

[67]        In the case at bar, none of the prospective witnesses has voiced any concerns regarding their personal health should they testify without a mask on. Quite the contrary, they are comfortable testifying without their mask. The same can be said of counsel. The Court explicitly asked them if they had any concerns. They did not. If the witnesses had voiced concerns, it would have given the Court great pause. The last thing the Court wants to do is impose something on a witness that will cause them undue anxiety. In cases of reluctance or outright objection by the witness, a stringent application of the R. v. N.S. factors would be required. That debate is left for another day.

CONCLUSION

FOR THESE REASONS, the Court:

DIRECTS that each witness remove his or her mask during their testimony.

AUTHORIZES (without requiring) counsel to remove their mask when they are asking questions, upon request, provided they respect social distancing measures and remain behind their plexiglas partition.

AUTHORIZES the English-French interpreter to perform his duties without wearing a mask, provided he respects social distancing measures.

RESERVES the right of any individual - parties, witnesses, attorneys, staff - to raise health concerns at any point during the trial and to have this issue re-litigated.

and

RECOMMENDS that the Crown forward a copy of these reasons to each prospective witness, in order for them - should they choose to do so - to retain independent counsel in the event that they wish to contest the order by seeking a writ of certiorari in the Superior Court.