R. v. Hinkley, 2011 ABQB 567

Court of Queen ’ s Bench of Alberta Citation: R. v. Hinkley, 2011 ABQB 567 Date: 20110919 Docket: 100438290Q1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown (Applicant) - and - Blair Jason Hinkley Accused (Respondent) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice E.A. Marshall _______________________________________________________ 1. Introduction [ 1 ] Blair Jason Hinkley is charged with: 1. operation of a motor vehicle while impaired by alcohol ( Criminal Code , R.S.C. 1985, c. C-46, s. 255(3)), and

2. causing the death of a person while operating a motor vehicle with a blood ethanol concentration of over 80 mg per 100 mL of blood ( Criminal Code , s. 255(3.1)). [ 2 ] The Crown plans to call an expert toxicologist, Patricia Lehman, to testify at Mr. Hinkley’s trial concerning the effect, excretion, and metabolism of ethanol. The trial is scheduled to occur in Wetaskiwin, Alberta. This expert is located in Manitoba. The Winnipeg office is short staffed at present with only two toxicologists since one has retired and not been replaced. These facts were not supported by affidavit but are not in dispute.

The Crown should advance an affidavit in these applications. [ 3 ] The Crown applies to have Ms. Lehman remain in Manitoba and testify using a video teleconference. The Accused opposes this arrangement. 2.

Witness Testimony via Video Teleconference [ 4 ] Criminal Code , s. 714.1 authorizes a court to use “means of technology” to allow a witness to testify as a “virtual presence”: 714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness had to be physically present; and (

c) the nature of the witness’ anticipated evidence. [ 5 ] Judicial commentary on this provision has been somewhat limited. A set of potentially relevant criteria was suggested in R. v.

Young , 2000 SKQB 419 at para. 8 , 201 Sask.R. 158: 8 In reviewing this very new provision, it seems to me there are a number of factors that should be considered: (1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross-examine that witness? (2) the nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect to exhibits and the like and other matters that would not attract any particular objection on the part of the accused's counsel; (3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom; (4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance; (5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important

aspects of the witness's life, such as his or her employment, personal life and the like; (6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliablefashion; (7) the cost to the state of having the witness attend in person; and (8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers ajudge may have over such a person, they are certainly extraterritorial. [6] Recently in R. v.

Denham, 2010 ABPC 82, 500 A.R. 211 Judge Rosborough considered a very similar application to permitvideo teleconference testimony in an Alberta court by a forensic technologist located in Manitoba. Judge Rosborough’s analysis isthorough, and highlights a number of what I conclude are relevant principles: 1.

Canada does not recognize a right for a party to physically confront a witness (paras. 16-18); 2. significant inconvenience is a valid reason to accept testimony via video teleconference (paras. 20-22); 3 the cost of a witness being physically present does not merely reflect monetary costs but also disruption to business andgovernment functions; here expert government toxicologists are few in number and a ‘stretched’ resource (paras. 23-26); and 4. the kind of testimony provided by a witness is a significant factor; the in-court demeanor of an eyewitness may have a verysignificant role in evaluation of the credibility of that witness, while the demeanor of an expert witness who responds in cross-examination on technical questions is less likely to be a significant consideration (paras. 27-29). [7] Rosborough P.C.J. concludes that video technology can provide for a superior review of witness demeanor during cross-examination (paras. 34-36) and observes that video teleconferencing has become routine in Alberta courts, including criminalproceedings (paras. 14-15).

In this instance “virtual testimony” by the Manitoba expert was confirmed as appropriate (para. 37). [8] Justice Watson (as he then was) in R. v. Morin, 2005 ABQB 331, 65 W.C.B. (2d) 259 in a brief oral judgment concludes thata doctor who would provide evidence in a criminal proceeding was not required to testify in person.

Watson J. also notes the significantdistance to travel (para. 4), that documentary evidence is available (para. 5), and reports that available technology allowed efficienttestimony and cross-examination, and review of documentary materials (para. 6, footnote 8). [9] In contrast, a complainant who was the “key witness” was required to testify in person even though travel involvedsignificant costs: R. v. Cardinal, 2006 YKTC 67, 70 W.C.B. (2d) 598, see also R. v. Chapple, 2005 BCSC 383 at para. 52, 15 M.V.R.(5th) 141 In R. v.

Raj, 2002 BCSC 193, 53 W.C.B. (2d) 433 a s. 714.1 application was refused; the judge noted the defence has agenuine requirement to fully evaluate body language. There was also technological impediment for review of documents (para. 6). [10] Similarly, in R. v. Fleury, 2004 SKPC 53, 248 Sask.R. 144 an RCMP officer was required to testify in person simply as thatwas part of his professional duties (para. 15) and because the court only had facilities for audio communications (para. 17-18). [11] The effect on a witness of in-court testimony is relevant in a s. 714.1 application.

Disruption of an unusual career opportunitymay warrant out-of-court testimony: R. v. MacNearney, 2010 NWTSC 77. The violent in-court conduct of an accused was a basis tohave a psychologically fragile witness testify by video teleconference: R. v. T.P.S., 2003 YKSC 52 at para. 22, see also R. v. McLean,2002 YKTC 64 at para. 18. Similarly, video teleconferencing was appropriate when a witness could not easily travel for health reasons:R. v. Gibson, 2003 BCSC 524, 57 W.C.B. (2d) 485; R. v. Osmond, [2010] N.J. No. 54, (N.L. Prov. Ct.), see also R. v.

Chapple, 2005 BCSC 383 at para. 54, 15 M.V.R. (5th) 141. [12] Courts have, however, taken a different approach to claims that the physical safety of a witness is at risk, and instead appliedCriminal Code, s. 486.2(4) when the witness seeks to testify via video teleconference on that basis: R. v. Allen, [2007] O.J. No. 1353(Ont. Ct. J.), R. v. Ragan, 2008 ABQB 658, 491 A.R. 154. 3. Analysis [13] The respondent’s chief complaint is that cross-examination will be impaired and the Accused’s right to make full answer anddefence will be affected if Ms. Lehman is permitted to testify via video teleconference.

I disagree. [14] There is little dispute that any ‘right of confrontation’ recognized by Canadian law is one of metaphor rather than a physicalrequirement for face-to-face interaction. There is no dispute the administration of justice remains unaffected by any lost opportunity foran accused to physically face a complainant or other witness: R. v. Levogiannis (1990), (ON CA), 1 O.R. (3d) 351 atp. 482, 484, 43 O.A.C. 161 (Ont. C.A.)); R. v.

J.Z.S., 2008 BCCA 401 at paras. 32-36, 261 B.C.A.C. 52, affirmed 2010 SCC 1, [2010] 1S.C.R. 3. “Confrontation” is a function of cross-examination, rather than physical interaction: R. v. J.Z.S., at paras. 32-33, 36. [15] Thus, a central question is whether the proposed video teleconference impedes the Defence’s ability to cross examine. Iaccept the conclusion in R. v. Young, R. v. Denham and R. v. Morin that demeanor is less critical for an expert, particularly where theexpert comments in a documentary report.

The Criminal Code expressly indicates that the kind of evidence from a witness is relevant:Criminal Code, s. 714.1(a). [16] In that sense this witness is distinct and different from the investigating police officer in R. v. Hostacny, 2005 BCPC 218 whowas required to travel and incur significant costs (over $28,000.00). That officer was a key eyewitness (para. 7) to the allegedmisconduct. Similarly, in R. v.

Munro, 2009 YKTC 125 at paras. 33-34, a police officer was instructed to testify in person as thereremained a question of credibility as to what that officer had personally observed. [17] Effective communication is crucial, but the current state of video teleconferencing technology meets that requirement. Ms.Lehman is not the kind of witness for whom demeanor will likely be a crucial factor. Further, I agree with other judicial commentary,such as in R. v.

Allen, 2007 ONCJ 209 at para. 7, that a “face-on view” of a witness is often superior to the traditional physicalarrangements found in many courtrooms when the judge views witness demeanor and assesses credibility. [18] A number of the decisions I have previously reviewed comment on the issue of “the cost” for a witness to testify in person:Criminal Code, s. 714.1(b). I agree with the approach in R. v.

Denham, at paras. 23-26, that for s. 714.1 applications “cost” means morethan ‘cash cost’, but can and should include other factors such as disruption of government and institutional functions that flow from arequirement that a witness travel from one part of Canada to another. [19] I have received evidence and accept that in western Canada toxicologists are a comparatively scarce and overextendedresource. I conclude the ‘operational cost’ from Ms. Lehman travelling from Manitoba to Wetaskiwin outweighs the negligible benefitthat may result from her cross-examination in person.

In this case, the Crown does not rely on the costs of transport and lodging as aconsideration. 4. Conclusion

[ 20 ] The Crown’s application that Ms. Lehman testify via video teleconference is granted. Heard on the 13 th day of September, 2011. Dated at the City of Wetaskiwin, Alberta this 19 th day of September, 2011. E.A. Marshall J.C.Q.B.A. Appearances: Euan A.M. Gilmour Crown Prosecutors’ Office for the Crown (Applicant) Kevin M. Sproule Sproule MacNaughton for the Accused (Respondent)