R. v. O’Hare Date:, 2016 BCPC 362

Citation: R. v. O’Hare Date: 20161018 2016 BCPC 362 File No: 38118-3-C Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN MICHAEL O'HARE RULING OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Fontaine Counsel for the Defendant: C. Hunt Place of Hearing: Duncan , B.C. Date of Hearing: October 18, 2016 Date of Judgment: October 18, 2016

Introduction [ 1 ] THE COURT: The accused Sean Michael O’Hare is charged under an information with an allegation that between the 17th of June 2015, and the 8th day of August, 2015 inclusive, that he did, without lawful excuse and with intent to harass Jody Smith, did make or cause to be made repeated communications to her by means of telecommunication. That is an offence contrary to s. 372(3) of the Criminal Code . [ 2 ] The allegations, as I understand them, arise from what is alleged to have been Facebook contact with the complainant, Ms. Smith, in such a manner that it became an offence contrary to ss. (3).

Subsection (3) of s. 372 reads as follows: Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication. [ 3 ] Although the original process indicated Crown was proceeding by way of indictment, it is now common ground that Crown is proceeding summarily.

Accordingly, the maximum penalty for this offence is six months of incarceration and a $5,000 fine in addition to or in lieu of any other sanction. [ 4 ] The Crown has brought an application pursuant to s. 486.2(2) of the Criminal Code . This is what is commonly referred to as a “testimonial accommodation” provision for witnesses. basis for application [ 5 ] In support of the application, I have before me the sworn affidavit of Jody Smith deposed to on the 27th of September, 2016, and filed on that date. In her affidavit, Ms. Smith indicates that she is 42 years of age at the time of the scheduled trial.

She has spoken to the Crown prosecutor assigned to this file and advised that Crown prosecutor that she would like to have a support person next to her and the ability to testify from a different room than the actual courtroom. [ 6 ] The deponent goes on to indicate that she has been diagnosed with coronary arterial heart disease and easily experiences heart palpitations in stressful situations. She indicates that she experiences a tightening of the chest, light-headedness, and extreme fatigue.

She further indicates that she has been battling bone cancer for the last five years and that she is currently in remission, noting that she has received chemotherapy, and finds that her overall health has been impacted and that she gets easily tired and ill. [ 7 ] At paragraphs 7 and 8, she deposes as follows, and I quote: 7. I also suffer from an anxiety disorder and depression. I have been prescribed Ativan to help keep my calm and I still take Ativan to date. I have been seeing a counsellor for my anxiety and health issues, and have been feeling anxious about the upcoming court date. 8.

I do not know the accused personally and I believe that being in the courtroom will cause me to have an anxiety attack and impact my overall health. [ 8 ] The affidavit of Ms. Smith is sworn in support of the Crown's application to permit her to testify with the assistance of closed circuit TV, and with a support person sitting near to her so that she does not have to see the accused and in order for her to feel safe and for no other improper reason. Provisions of the Criminal Code [ 9 ] As noted above, Crown has brought on this application pursuant to s. 486.2(2) .

Section 486.2 has recently been amended, effective July 22,

Section 486.2 now reads as follows: 486.2

(1) Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. Other witnesses

(2) Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice . [emphasis added] Application

(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

Factors to be considered

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider (

a) the age of the witness; (

b) the witness' mental or physical disabilities, if any; (

c) the nature of the offence; (

d) the nature of any relationship between the witness and the accused; (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence; (

g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (

h) any other factor that the judge or justice considers relevant. Same procedure for determination

(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection. Conditions of exclusion

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony. No adverse inference

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2). [ 10 ] I note that prior to the amendment in July of 2015, ss. (2) of 486.2 read as follows:

(2) Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of. [emphasis added] [ 11 ] I note further that the previous provisions contained in ss. (3) have been expanded by the present wording of ss. (3), and specifically that the ss. (3)(e), (

f) and (

g) have been added as factors to be considered. Case Authorities Relied Upon by the Parties [ 12 ] The accused has relied upon four cases which were decided prior to the amendments to s. 486.2(2). Those cases are: R. v. Kerr , 2011 ONSC 1231 ; R. v. M.A.C.L. , 2008 BCPC 272 ; R. v. Pal & Tahvili , 2007 BCSC 1493 ; R. v. Forster , 2006 BCPC 237 . [ 13 ] Crown has referred me to the decision of the Nunavut Court of Justice of R. v. Hainnu , 2011 NUCJ 14 . Both counsel have also referred me to the decision in R. v. Jimaleh [2016] O.J.

No. 5133 , which they tell me, and what I have observed from conducting my own searches, appears to be the most recent decision that considers the amended provision of s. 486.2(2) . Crown's Position [ 14 ] The Crown submits that the requirements of s. 486.2(2) and the requirements that are set out in s. 3 are supportive of an order being made under that

section to permit the required testimonial accommodation for this particular witness. In particular, Crown says that the provisions of ss. (3)(b), (c), (

d) and (

g) are applicable and relevant to this application. [ 15 ] In particular Crown points out that the complainant, Ms. Smith, suffers from both mental and physical disabilities by virtue of

her physical health, as well as her anxiety disorder and depression. [ 16 ] With respect to ss. (3)(c), Crown says that the nature of this particular offence, which comprises a harassment by communication, is of the type that needs to be fully considered.

Crown submits that the circumstances surrounding the alleged offence, being through a communication by way of Facebook, are supportive of the view that direct confrontation of the witness by the accused in the courtroom will cause the witness unacceptable stress and anxiety. [ 17 ] Similarly, ss. (3)(d), the nature of any relationship between the witness and the accused, gives concern that, having never met the accused, the witness in this case will, for the first time, be confronted by someone who is accused of the alleged harassment through repeated communications with her.

Again, Crown suggests that this is a situation where the stress and anxiety for this particular individual, who is prone to anxiety disorder and depression, will be unacceptable and the witness will be adversely impacted physically and as to her ability to provide her evidence. [ 18 ] Crown says that with respect to ss. (3)(

g) that in order to encourage the reporting of these types of offences and for complainants to participate in the criminal justice process, that in appropriate circumstances, such as the one at hand, that it is important that the court provide the necessary accommodation in order to protect both the health and the wellbeing of the complainant and facilitate the giving of evidence. [ 19 ] Crown also say that the method which is being suggested, which is by way of a closed video circuit TV connection, will offer the type of necessary accommodation for this complainant, and will not, on the other hand, deprive the accused and defence counsel of the ability to make full answer and defence to the charges. [ 20 ] As I understand it, the arrangements that are being proposed by Crown have been utilized on other occasions in this courtroom.

No issues have arisen, either with respect to the technological requirements, and no issues have arisen with the proper conduct of both examination in chief as well as cross-examination. [ 21 ] In that regard, I have Crown's submissions that any exhibits which will need to be reviewed by the complainant can be done so through both her evidence in chief and in cross-examination over video with copies of the various exhibits before the witness.

Again, I am given to understand that this has happened in the past, where there are young children involved, and that no problems have arisen as far as the practicality of having those documents available in that fashion. Defence's Position [ 22 ] It is defence's position that this court does not have before it sufficient information in order to come to the conclusion that the complainant suffers from the various diseases and health conditions which are set out in her affidavit.

Defence suggests that medical evidence is required in order for a decision in favour of the Crown to be rendered on this application. [ 23 ] The various decisions mostly relied upon by defence are situations where the court has declined to grant the order sought under the former provisions of s. 486.2(2). Those are cases that mostly involved adult witnesses, and mostly involved witnesses who had a former relationship with the accused person, (and in some cases were spouses) and also involved significantly more serious offences than the charges in this particular case.

In those cases the court declined to grant the order on the basis that the then operative test laid out in s. 486.2(2) was not met, and that the justices and judges in those cases were not of the opinion that "the order is necessary to obtain a full and candid account from the witness of the acts complained of." [ 24 ] Accordingly, defence seeks that I dismiss Crown's application and that the complainant in this case be required to testify in the courtroom in the presence of the accused. [ 25 ] Alternatively, both Crown and defence say that if I determine that a video link is not an appropriate way for this matter to proceed but accommodation is necessary, then I should consider making an order that the complainant be permitted to be behind a screen in order to complete her testimony and cross-examination in the courtroom.

Analysis [ 26 ] I agree with Crown's submission, which I do not believe is seriously challenged by defence, namely that the factors which are of significant relevance for consideration here are s. 486.2(3)(b), (c), (

d) and (g). [ 27 ] However, in terms of a complete analysis, I offer the following comments. In this case, the age of the witness is not a material consideration as laid out in ss. (a). [ 28 ] The witness's mental or physical disabilities, if any, as set out in ss. (

b) are of significant relevance in this matter. [ 29 ] I am of the view that the affidavit that has been filed on behalf of the Crown by the complainant does adequately lay out some significant concerns about an individual who not only suffers from a coronary arterial heart disease, but apparently, according to her unchallenged evidence, is more pronounced with heart palpitations in stressful situations.

The fact that the complainant experiences tightening of the chest, light-headedness, and extreme fatigue would be concerning if such a series of symptoms manifested themselves in the course of either examination in chief or cross-examination. [ 30 ] Of particular concern is the complainant’s anxiety disorder, and specifically the facts that the complainant apparently is reliant upon Ativan to help keep her calm, that she has had to address those anxiety issues through counselling, and she is feeling anxious about the upcoming court date. [ 31 ] That is not to say that all witnesses who are anxious about testifying would necessarily be accommodated by the granting of an order of this nature.

However, anxiety is a recognized disorder from which this complainant apparently suffers; in cases of that disorder, the condition goes beyond simple nervousness or anxiousness about testifying.

[ 32 ] I have given regard to the nature of the offence as set out in ss. (3)(

c) and the nature of any relationship as set out in ss. (3)(d). I am concerned that this complainant, who has never met the accused in this case and who has allegedly subjected her to harassing communication, will be confronted for the first time in court with the presence of the accused. She says that this could precipitate an anxiety attack and impact her overall health. [ 33 ] Again, a person who is susceptible to a significant anxiety condition could very easily experience an attack in the midst of her evidence or in a rigorous cross-examination.

However, to have the additional stress of having the accused personally in the courtroom with her and seeing him for the very first time could give rise to a greater degree of severity for this particular anxiety problem. [ 34 ] The provisions of ss. (e), which is the need for security or protection from intimidation or retaliation, ss. (f), which is the provision for protecting identity, and the provisions of ss. (f.1), which is a need to protect identity if a witness has responsibilities relating to national security or intelligence, are all inapplicable to this case. [ 35 ] I am of the view that the provision of ss. (g), namely: society's interest in encouraging the reporting of offences and the participation of victim and witnesses in the criminal justice process, is indeed an important and relevant factor in this case.

It is particularly important when people with accepted disabilities, such as an anxiety and depression disorder, which may be triggered in the stressful environment of a courtroom, are being asked to come forward and to participate in the criminal justice system by providing evidence. [ 36 ] Again, each case must be decided on its own merits, and on the facts that apply to it.

In my view, Crown has established the required factual matrix in order to succeed on this application, based upon the evidence that I do accept, and which is not challenged by any contradictory evidence. [ 37 ] I do also note that in the decision of R. v. Jimaleh , that the learned justice, at paragraph 7, says as follows:

Section 486.2(2) previously required that the order be "necessary to obtain a full and candid account from the witness of the acts complained of". The amended

section has lowered the threshold somewhat to that of "would facilitate the giving of a full and candid account..." which indicates an intention to make testifying by closed circuit or behind a screen a more commonplace occurrence. [ 38 ] Defence has indicated that if this type of application is granted for an individual like the complainant in this case, then there is a prospect of a flood of applications that will be made and that there will be a movement towards fewer witnesses actually appearing in the court room. [ 39 ] I am of the view that Parliament has made an intentional amendment to ss. (2) to make those types of applications more common by virtue of the revised tests.

That is not to say that there necessarily will be a significant increase in the number of resulting orders granted. The orders will not be granted if those applications do not meet the requirements under ss. (2) based upon considerations laid out in ss. (3).

However, it is clear that it is Parliament's intention to offer an alternative and to use appropriate technology that has been developed over the years to permit evidence to be given in a variety of circumstances, and specifically now in circumstances where the appropriate test is met to establish the requirements for an order that facilitates the giving of a full and candid account by the witness of the acts complained of or it is otherwise established as to being in the interest of the proper administration of justice.

Decision and Orders [ 40 ] Accordingly, I grant the Crown's application, and I will permit the witness, Jody Smith, to testify with the assistance of closed- circuit television.

I will make a further order that Jody Smith be permitted to have a support person sitting near her, such that the support person is within visual sight of the court, in order to facilitate the complainant completing her testimony. [ 41 ] I leave it to the further direction of the trial judge in order to determine the exact role of the support person and the location of that support person during the evidence being provided by the complainant, Jody Smith. [ 42 ] That concludes my reasons for judgment. [REASONS FOR JUDGMENT CONCLUDED]