R. v. J.S., 2017 BCPC 441

Citation: R. v. J.S. 2017 BCPC 441 Date: 20170526 File No: 25370-1-K, 25015-1-K Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.S. RULING ON APPLICATION OF THE HONOURABLE JUDGE R. BROWN Counsel for the Crown: Sunday Patola Counsel for the Accused: Jesse Gelber Place of Hearing: Nelson , B.C. Date of Hearing: May 3, 2017 Date of Judgment: May 26, 2017 [ 1 ] The accused is charged that he did assault E.B. The matter was for trial to commence on May 3, 2017.

On the date set for trial the Crown made an application pursuant to s. 486.2(2) in respect of the witness, E.B., to allow her to testify outside the courtroom by way of closed circuit TV. In this regard E.B. would testify in a separate room in the court house with her voice and image transmitted live from that room into the courtroom. The defence objects to the application and emphasizes the right of the accused to face and hear the

accuser in the courtroom. [ 2 ] The Criminal Code sets out a statutory scheme for the court to consider this kind of application.

Section 486.2(2) states as follows: 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. [ 3 ] In support of the application the Crown called Christine Van Dyke.

She is a Victim Service Worker with the RCMP in Castlegar. E.B. was assigned to her since August 2016. Her evidence was not challenged. She has a bachelor’s degree in psychology and a master’s degree in counselling psychology. She met with the complainant by email, in person and on the phone approximately once per week since August 2016. She was aware that the accused was the former partner of E.B. and they lived together but she did not know a lot about the history of their relationship.

She stated that when there is a discussion about the relationship with the accused, E.B. was reduced to crying, shaking and had a hard time focusing and very visibly upset. Ms. Van Dyke described E.B. as a smart person from Italy who speaks with an accent. She has no difficulty understanding English but on occasion she has to explain the meaning of a word. She may need to take moment before she replies and she can get confused. She described E.B. as a lot different when talking about normal matters. Ms. Van Dyke stated E.B. was quite fearful giving her statement to the police. Ms.

Van Dyke stated she observed E.B. in the court house on the date of this application and she is very worried, anxious, teary and shaky. When asked to comment on E.B.’s ability to communicate with the accused in the same room E.B. stated it would be really hard and really challenging. In cross examination Ms. Van Dyke indicated she has been engaged in victim service work with the RCMP since 1999. Her role is supportive and to facilitate referrals for counselling. E.B. has had counselling following a referral by the Victim Assistance Office in Nelson. The Nelson Office funded that referral.

This referral for counselling was completed before E.B. moved to Castlegar and was assigned to her. Ms. Van Dyke stated that part of counselling is to learn how to calm down by, for example, E.B. putting her feet on the ground, use deep breaths and to go slow. She stated these are techniques she uses with E.B. when she deals with her in person or on the phone. Ms. Van Dyke acknowledged that E.B. is not familiar with the court process but stated her anxiety is a result of being here in the court house with the accused and being fearful she is going to be attacked. Ms.

Van Dyke described E.B. as being very overwhelmed. E.B. was described as a mature woman, with no problem with her memory who presents as her age which is 34. The Law [ 4 ] The Crown referred the court to the decision of Judge Gorman R. v. K.P. , 2017 N.J. No. 69 , being a decision the NFLD and Labrador Provincial Court. In that case the evidence presented on the same kind of application was the evidence of the mother of the witness. The allegations involved touching and digital penetration by an accused who was described as a step parent.

The witness was 18 at the time of trial but was between the ages of 13 and 17 when the touching took place. At paragraph 15 the court noted that s. 486.2(1) of the Criminal Code refers to a witness under 18 or who may have difficulty testifying by reason of a physical or mental disability. The court noted that s. 486.2(2) is broader in scope since it does not contain an age limitation or require a witness to have a mental or physical disability.

The court continued at paragraph 16 that s. 486.2(2) applies to any witness in relation to whom a judge is satisfied that such an 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”. At paragraph 17 the court referred to R. v. Bemister, 2016 ONSC 6374 , which held that the onus to establish that such an order should be issued rests with the Crown on the balance of probabilities. [ 5 ] Judge Gorman in R. v.

K.P . then asked “what does the word facilitate mean?” The use of the word facilitate is a significant change in the enabling wording found in the Code . Prior to the amendments to the Code relating to witness accommodation the words used included the requirement that the court be satisfied that accommodation was necessary for the witness to give a full and candid account. Judge Gorman at paragraph 25 referred to dictionary.com to interpret the word facilitate to mean to make easier or less difficult, help forward and then referred to synonyms from thesauras.com as including the words ease, further and help.

He noted the Oxford dictionary defines facilitate as meaning to make easy or easier. Judge Gorman at paragraph 26 adopted the

interpretation of the word facilitate in the BC Provincial Court decision of R. v. Ashouri , 2015 BCPC 452 , which held that the word facilitate in the context of 486.2(2) of the Criminal Code means “to make an action, result easier, less difficult or more easily achieved. Judge Gorman continued at paragraph 27 by referring to the BC Supreme Court decision of R. v. Nuttall , 2016 BCSC 1404 , at paragraph 797 which stands for the proposition that the question in a

section 486.2(2) application becomes will allowing a witness to testify outside the courtroom make it easier or help that witness to make a full and frank account of the subject matter in relation to which they are testifying. After referring the aforesaid authorities Judge Gorman concluded that the present wording of s 286.2(2) suggests a very low threshold for the issuing of such an order. [ 6 ] Judge Gorman noted that the lowering of the standard and an intention to make testifying by closed circuit TV a more commonplace occurrence was found in R. v.

Jimaleh , 2016 No. 5133 (SC), and again in the BC Provincial Court in R. v. O’Hare , 2016 BCPC 362 , at paragraph 39 . [ 7 ] The factors to consider when determining whether to issue an order are listed in s. 486.2(3). [ 8 ] The defence submits the Crown has not satisfied the burden of proof required to issue the order. The defence notes there is no affidavit by the complainant, she did not testify, there is no medical evidence, she is a mature adult with no disabilities, there is no memory issue, no relation of trust between the complainant and the accused, there is no allegation of sexual assault.

The defence submits that it is not relevant the complainant and the accused were intimate on occasion. Further the defence submits that the Crown could have called the complainant as a witness and the Crown did not invoke s. 486.2(4) to permit the complainant to testify on the application by closed circuit TV. The defence acknowledged there was evidence that the complainant had counselling but took the position that there was insufficient evidence she was attending with a counsellor relating to the assault and therefore the evidence of counselling is at best neutral.

The defence submits that it is a fundamental right of the accused to face and listen to the complainant in the courtroom. The defence then focused on each of the statutory factors in s. 486.2(3) as follows:

(

a) He noted that cases presented referred to young witnesses as opposed to E.B. who is 33 and her age militates againstaccommodation. (

b) there is no evidence of a mental or physical disability. (

c) the offence is an assault allegation as opposed to sexual assault. (

d) the nature of the relationship is a neutral factor since it is a regular common law relation. (

e) there is no evidence the witness requires accommodation for their security, intimidation or retaliation. (f) (f.1) these factors do not apply. (

f) the defence following a discussion concedes this factor is of general application and there is a need for the public to be awarethat accommodation is available and therefore that awareness will encourage the reporting of offences and the participation of witnessesin the criminal justice process. (

g) with respect to any other factor the defence submits that this is a trial as opposed to a preliminary inquiry and this militates infavor of the accused. [9] The defence concludes that there is nothing in the evidence on the application that permits a finding that accommodation wouldfacilitate the giving of a full and candid account by the complainant. Discussion [10] There is no requirement that the complainant provide evidence viva voce or on affidavit when requesting testimonialaccommodation. In fact the whole purpose of the legislation would be defeated if there was such a requirement.

Further the accused isincorrect when he suggests that the Crown could have invoked the provisions of s. 486.2(4) to permit the complainant to testify byclosed circuit TV to provide evidence on the application. That subsection makes it clear that it is for the judge or justice, not the Crown,to form the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should bemade and in that event the judge or justice shall order the witness to testify in accordance with that subsection. In R. v.

Justice, 2015BCSC 672, at paragraph 14 Justice Jenkins referred to the reasoning of the Ontario Court of Appeal in R. v.

Allen which rejected thesuggestion made by the respondent that on such an application the witness who may require accommodation begin his testimony in opencourt for the court to determine if there is difficulty communicating and referred to such a procedure as contrary to the spirit of thelegislation. [11] The submission of a constitutional right to face and hear your accuser in a courtroom and the further suggestion one must weighthat right against testimonial accommodation has been answered in R. v.

J.Z.S., 2008 BCCA 401, wherein Justice Smith stated inparagraphs 33 and 34 as follows: [33] L’Heureus-Dube J. then framed the issue in Levogiannis as “simply put, whether a witness’s obstructed view of an accused,infringes the rights of such accused under s. 7 or 11 (

d) of the Charter (at 485). [34]

Section 7 requires a balancing of competing interests. An accused’s right to a fair trial, including the right to make full answer anddefence, must be balanced against the broader societal interest in having offences prosecuted L’Heureux-Dube J. rejected the argumentthat in order to make full answer and defence an accused must be able to confront his accuser. As was stated by MacDonald J.A (as he then was), for the court, in R. V. R. (M.E) (1989), (NS CA), 49 CCC (3rd) 475 NSSC (AD), at 484: The right to face one’s accusers is not in this day and age to be taken in the literal sense.

In my opinion, it is simply the right of anaccused person to be present in court, to hear the case against him and to make answer and defence to it. [12] I will now address the statutory considerations referred to in s.486.2 subsection (3) and for convenience refer to them as factors. [13] With respect to factor in (a), I disagree with the defence’s bare statement that a 19 year old is entitled to greater consideration totestimonial accommodation than a 33 or 34 year old.

A person of any age may make the application. [14] With respect to factor (b), there is no evidence that the witness has mental or physical disabilities. [15] Factor (

c) directs the court to consider the nature of the offence. The Crown informed the court they anticipate the evidence ofassault will be over a number of years and the assault is unwanted nipple pinching which is temporal to consensual sex. I agree with theCrown that this factor does not mean the court should not favor testimonial accommodation when dealing with common assault asopposed to sexual assault. Testimonial accommodation is potentially available for any offence.

In this case the complainant/witness andthe accused were in a common law relationship and there will be evidence of sexual activity from the witness since the alleged assault istemporally connected to the sexual activity. [16] When dealing with factor (

d) being the nature of the relationship, this is not limited to the situation where there is a powerimbalance such as a step parent relationship or the accused be in a position of trust. This factor includes a consideration of therelationship of the complainant and accused which was in this instance is a common law relationship. [17] The evidence does not trigger a consideration of factor (e), (

f) or (f.1). [18] With respect to factor (

g) being society’s interest in reporting offences and victims and witnesses participating in the criminalprocess, this is not specific to the particular case. Clearly this

section is of general application. Victims and witnesses will be encouragedto come forward and participate in the criminal justice process if they know that there are testimonial accommodation methods available

to accommodate their particular needs and they can request the court for that accommodation. [ 19 ] Factor (

h) directs the judge or justice to consider any other factor that a judge or justice considers relevant. In this case English is not the first language of this witness who is Italian but speaks English. She may have to take a moment to listen, have matters repeated or a word interpreted and then reply. She gets confused and on occasion things must be explained more than once. [ 20 ] It is clear that the absence of evidence on one factor does not mean the witness cannot be considered for testimonial accommodation.

For example, the fact that this witness does not have a mental or physical disability does not exclude her from consideration. [ 21 ] If the test was whether the order is necessary to obtain a full and candid account by the witness then I would not be satisfied the order should be made. That was the test. The test has been significantly lowered by the revisions to the Criminal Code .

The test I must now apply is whether 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. [ 22 ] In considering this revised lower standard I must consider that Ms. Van Dyke did not describe the witness as having some anxiety or some general fear of the process. Rather I have a description of a witness by an experienced victim assistance worker who has a Masters Degree in Counselling Psychology who has had to use calming techniques on this witness who has received counselling by a referral by victim services. Ms.

Van Dyke described the witness as normal in general conversation but when discussing the matter before the court that witness is very disturbed, rattled emotionally as indicated by tears, inability to focus, very visibly upset, shaking, stressed and all over, agitated, hard to keep on point, is fearful knowing the accused is in the same court house and on occasion does not understand an English word given she is Italian.

This witness in that state will provide evidence of an alleged assault over a long period when that assault involves manipulation of her nipples and that alleged assault is temporally linked to consensual sexual activity. The evidence from the witness will include sensitive intimate details of her life. [ 23 ] I have considered the evidence, the submissions of counsel and the relevant case law. The Crown has satisfied me that a witness accommodation order would facilitate the giving of a full and candid account by the witness of the acts complained of.

I make an order that the witness be permitted to testify outside the court room by way of closed circuit TV. ______________________________________ The Honourable Judge R. Brown