Complainant in both criminal trials were asked by accused to testify without mouth coverings
A Quebec court judge recently ruled that witnesses in a criminal trial must testify without masks in a decision that takes an opposite stand to an earlier one in Ontario.
Court of Quebec Justice Dennis Galiatsatos wrote in an April 8 decision, part of harassment trial, that the “justice system can’t be held in abeyance until the entire population has been properly vaccinated [against COVID-19] or until the illness has run its course through our society.”
He added that “in order to preserve the defence’s fundamental right to effectively cross-examine the complainant, counsel will need to see her face.”
Galiatsatos acknowledged that COVID-19 has taken a terrible toll on Quebec society. “Nothing in these reasons should be interpreted as nonchalance or a lack of concern for the obvious and pressing need for aggressive social precautions,” he wrote. He added it is “unspeakably tragic” that about 11,000 have died because of the virus in Quebec alone.
Ontario judge rules witness must wear mask
In the Ontario case, Ontario Court of Justice Julie Bourgeois made it clear that everyone in her courtroom must wear a mask during the pandemic, according to Ontario law.
But as an Ottawa Uber driver’s sexual assault trial began in early February, he asked that the alleged victim — one of his passengers — be required to remove her mask while testifying. His lawyer argued that credibility was a central issue in the case, and it was important to be able to assess the witness’s facial expressions.
However, Justice Bourgeois refused the request, ruling that protecting people in the courtroom overrode the defendant’s wish to see his accuser in full.
“A trial with witnesses having their nose and mouth covered can hardly be viewed as unfair in the midst of a public health pandemic,” Bourgeois wrote. “The (accused’s) right to make full answer and defence needs to be balanced against the competing and broader societal interest of public health and safety.”
Quebec case dealt with criminal harassment
The accused in the Quebec case faced accusations of criminally harassing a waitress he met at a bar over nine months. Although the court appointed him counsel to cross-examine the complainant, he is representing himself.
Shortly before the trial, Quebec’s Provincial Department of Public Health made a formal recommendation requiring all workplace personnel to always wear masks indoors to curb the aggressive spread of COVID-19, particularly its variants.
In this case, the accused denies the allegations. On the morning of the trial, Galiatsatos raised the issue of face coverings and canvassed the courtroom on the new directive on masks.
The court-appointed defence counsel preferred that the complainants uncover their faces for cross-examination. The accused, who planned to do his own cross-examination of other witnesses, also said he would prefer the complainant not to wear a mask.
Both the accused and counsel indicated “that seeing the witnesses’ faces is an integral part of their cross-examinations.” The defence counsel, who asked that he also be allowed to remove his mask while asking questions, said that observing the witness’s body language goes hand-in-hand with the spoken words uttered.
The Crown also said that having witnesses testify without masks is far better, allowing the court to properly assess their accounts' probative value. Crown counsel did not ask to remove his mask during questioning but would be ready to do so if witnesses or the judge had difficulty understanding him.
At the judge’s request, the Crown canvassed how prospective witnesses felt about the matter. All five witnesses indicated that they were comfortable testifying without masks. None had any particular health concerns or sources of anxiety. The witnesses preferred testifying without a mask.
Galiatsatos noted “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.”
The certified English-French interpreter at the English-language trial (though all Crown witnesses would be testifying in French) requested that he be exempt from wearing a face covering.
“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.
“Although not visible to the untrained eye, court interpreters use methods involving shallow breathing to keep up with the rhythm of the witnesses’ testimonies. This limits their oxygen intake and 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.
The interpreter also said that 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.”
Balancing right to fair trial with public health concerns
In his analysis after hearing all parties, Galiatsatos wrote that “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.” There are no one-size-fits-all solutions, he said.
Instead, trial judges must use their discretionary powers “to craft the appropriate method of receiving testimony without too hastily diluting an accused’s right to a fair trial.”
He added the “triers of fact” must consider a witness’s behaviour and demeanour and way of testifying to determine credibility. “This is also why live trials take place, as opposed to making factual findings by reading transcripts.”
“If the lower half of a person’s face is hidden and only the eyes are visible, can a trier of fact adequately distinguish a person who is smiling, a preson who is squinting, a person who is wincing in pain?”
“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.”
Galiatsatos also said that since the summer of 2020, extensive measures are in place at the Montreal courthouse to ensure the safety of litigants and visitors, based 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.”
The Supreme Court of Canada dealt with a similar question in a 2012 case involving a Muslim sexual assault complainant and whether she should remove her niqab. While there is a “strong connection” between getting a fair trial and being able to see a witness’s face, Canada’s highest court said in some cases, judges could allow Muslims to wear a face-obscuring niqab while testifying.
The court’s majority said judges should weigh witnesses’ religious rights against the accused’s rights to a fair trial and only order the face coverings taken off if crucial to the fairness of the trial.
“There is a strong connection between the ability to see the face of a witness and a fair trial,” then-Chief Justice Beverley McLachlin wrote.
“Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence.”
Using remote witness testimony to make courts safer
Courts across the country have struggled to keep operating during the pandemic, resulting in delays and lengthy backlogs of cases. In Ontario, many litigants have chosen to have their cases heard by video call.
John Struthers, a defence lawyer and president of the Criminal Lawyers’ Association, says Zoom and other remote video methods can be better than in-court testimony, especially if masks are needed. However, the most important thing is for courts to be as flexible as possible to evaluate the situation and develop an appropriate solution.
“Everyone’s trying to do their best in very difficult circumstances, and every circumstance is different, he says,” nothing that in the Quebec case agreed to not wearing masks during testimony or cross-examination.
“You can’t force people to testify in person, and you shouldn’t force people to have Zoom trials,” he adds, suggesting that adjourning the matter until the pandemic is less of a threat might be a better solution.
Struthers says that he has had “extremely good luck” on Zoom. And he has talked to judges who prefer witnesses on a large screen testifying remotely than talking through a mask and plexiglass in court. “They can see the witness’s eyes dilate, they can hear their breathing through the earphoines, like they are two-feet away. “
Toronto criminal defence lawyer Trevin David says judges “are often placed in the difficult position of having to balance competing rights.
“In these cases, the judges reached different conclusions about how to balance trial fairness and the defendant’s right to make full answer with the competing interest of protecting public safety, he says.”
David notes that the safety measures installed in courthouses across the country help witnesses to safely testify while unmasked. “Seeing a witness’s face is important to a fair trial, by enabling effective cross-examination and credibility assessments. Where that right competes with other considerations, courts should look for alternative measures to prevent the risk of harm to the witness while still ensuring a fair trial. “
While witnesses participating through Zoom have been a reasonable substitute in many cases, David says care must be taken by all parties to ensure that those testifying by Zoom, especially outside of the courthouse, are not reviewing other materials or speaking with other witnesses.