Case Explained: Manitoba judge rejects woman’s request to testify from behind screen in sexual assault case – Legal Perspective

A lack of information led a judge to deny a woman’s request to testify from behind a screen in the trial of the man accused of sexually assaulting her, according to a recent Manitoba court decision.

The woman, 22, is identified only by her initials, M.B., in a Jan. 23 written decision by provincial court Judge Wanda Garreck.

The 22-year-old was set to testify in the trial of the man charged with sexually assaulting her more than two years ago. She said she worried about seeing the accused and the possibility that he could intimidate or retaliate against her, the decision says.

M.B. asked to give her testimony in court from behind a screen and in the presence of her boyfriend, her dad or a victim services worker, Garreck said.

It was up to the Crown to prove the support would “facilitate the giving of a full and candid account” from the woman, the judge wrote.

“In this particular case, there is an absence of information about how the complainant’s participation may be affected by use of testimonial aids, or whether it would impact the giving of a full and candid account,” said Garreck.

According to the decision, M.B. met the accused on a dating app and alleges he sexually assaulted her in an interaction that began consensually during their second in-person meeting in November 2023. A forensic exam found she suffered a small internal laceration, the decision says.

The relationship was short, spanning 10 days, and there was “no evidence of any power imbalance, history of concerning behaviour, or relationship dynamic that may be relevant to this application,” Garreck’s decision says.

[M.B.’s case] is one of the more egregious decisions, as far as withholding access to testimonial aids.– Alexa Barkley, End Violence Everywhere

The Crown suggested it was likely that seeing someone accused of sexual violence would have a negative effect on M.B., but Garreck said that was a “very general statement,” and there was no evidence to explain exactly why M.B. felt she may face intimidation or retaliation.

The Crown also cited a section of the Criminal Code to argue that granting the testimonial aids for M.B. would be in the interest of the administration of justice, because she has been diagnosed with both anxiety and borderline personality disorder.

That section of the Criminal Code says judges can allow a witness to testify from outside the courtroom or from behind a screen, but Garreck said those orders are not granted automatically.

The defence said there was insufficient information about the woman’s mental health diagnoses and how they would impact her ability to testify, and there was nothing to substantiate her concerns about intimidation or retaliation by the accused, the decision says.

Garreck also agreed with the defence that the decision on whether to grant the aids didn’t rest on whether the witness would be more comfortable, less stressed or feel more at ease to testify with those aids.

“The test is whether the particular circumstances of this case meet the low threshold of demonstrating the accommodations would facilitate the giving of a full and candid account or would be in the proper administration of justice,” the judge wrote, dismissing the request.

Few protections in courts: advocate

Testimonial aids in sexual assault cases are denied more often than one might think, said Alexa Barkley, a Toronto-based sexual assault survivor and advocate with EVE, or End Violence Everywhere.

“That puts survivors at risk within the courtroom,” Barkley, who was not involved in the Manitoba case, said in an interview with CBC.

“The court process itself is inherently stressful and can actually lead to post-traumatic stress disorder, so it leaves the survivor with very little, if any, protection.”

For sexual assault victims, seeing the person accused of abusing them can illicit bodily responses that might hurt the quality of their testimony, Barkley said.

“I think [M.B.’s case] is one of the more egregious decisions, as far as withholding access to testimonial aids, because there was mention of two different diagnoses within that judgment,” she said.

Having to request testimonial aids in sexual assault cases can also lengthen the court process, which increases the risk the charges will be stayed if a judge determines the defendant’s constitutional right to a timely trial is infringed, she said.

Barkley also said that the defence’s argument there was no evidence to explain why M.B. would be afraid to see the accused was “mind-boggling.”

The man is accused of “something significant — sexual violence to the point of bodily harm — so that they would suggest that she wouldn’t be afraid of him doesn’t really make a lot of sense,” said Barkley.

“If this was all about truth seeking, then you would give people what they needed to be able to participate.”

But Barkley says new legislation is promising changes in the courtroom.

In a November report, Benjamin Roebuck, the federal ombudsperson for victims of crime, accused the legal system in Canada of retraumatizing victims of sexual abuse when they come forward. He made an array of recommendations to the federal government, including ensuring a “fair chance at cross-examinations” for victims, where they are allowed to use testimonial aids.

The Protecting Victims Act, tabled by the federal Liberal government in December, aims to protect victims and survivors of sexual and intimate partner violence through Criminal Code amendments.

Bill C-16 also answers the call in Roebuck’s report to make testimonial aids available without having to first convince the court they can be used.

“We’re hopeful,” said Barkley.

‘Disturbing ruling’

Karen Bellehumeur, a former Ontario Crown attorney who now represents sexual assault survivors, disagrees with Judge Garreck’s analysis in M.B.’s case.

“It’s a disturbing ruling,” she said in an interview with CBC.

Being in the courtroom is a visceral experience, and having to see the accused and hear them talk about the alleged offences “can almost be impossible for some people,” she said.

“It’s possible that a witness could just feel so intimidated that they decide not to go through with it.”

According to Statistics Canada, the vast majority of sexual assaults go unreported, with only six per cent of such assaults reported in 2019.

Bellehumeur says decisions like Garreck’s can discourage victims from seeking justice.

“They’ll join the ranks of the 94 per cent who decided not to report it and just, you know, walk away.”

Garreck noted in her decision that testimonial aids may encourage participation and reporting of sexual offences, but said that alone did not address whether M.B. would be able to give more fulsome testimony if they were granted.