R. v. Lasante et al., 2017 BCPC 446

Citation: R. v. Lasante et al. 2017 BCPC 446 Date: 20171031 File No: 25268-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED BY THE MINISTRY OF FORESTS, LANDS & NATURAL RESOURCE OPERATIONS AND THE MINISTRY OF TRANSPORTATION AND INFRASTRUCTURE, EXECUTIVE FLIGHT CENTRE FUEL SERVICES LTD., AND DANNY LASANTE RULING ON APPLICATION PURSUANT TO S. 714.1 OF THE CRIMINAL CODE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: J.D. Cliffe, Q.C., A.M.

Switzer Counsel for the Accused Her Majesty the Queen in Right of the Province of British Columbia J.L.G. Maxwell, A.F. Davies Counsel for Accused Lasante : A. Hepner, Q.C., E.C. Archer For Accused Executive Flight Centre : No appearance Place of Hearing: Nelson , B.C. Date of Hearing: October 31, 2017 Date of Judgment: October 31, 2017 [ 1 ] THE COURT: This is an application under s. 714.1 of the Criminal Code for an order that certain witnesses attend and give their evidence by video. The application is brought by the Crown with respect to three police officers.

The first, Officer William McKenna, is a member of the Royal Canadian Mounted Police now stationed at the Hudson’s Hope Detachment office, north of Fort St.

John in British Columbia. Officer McKenna has sworn an affidavit indicating that he lives some 1300 kilometres from the Nelson area, where the trial is currently taking place. He also swears that in order to attend to give evidence in Nelson, British Columbia, he would need to travel for something between three to five days, and as such it would be inconvenient to make the trip. [ 2 ] As I understand the submissions, Constable McKenna is going to give evidence that he was on traffic duty with the RCMP detachment office here in the Nelson area on July 26, 2016 [sic, 2013].

Among other things, his duties included notifying residents to evacuate pursuant to an order that I have heard about yesterday. The evidence that the Crown at least intends to adduce from this witness is that at the time he was near the area of the alleged spill, he smelled fuel, and he will say that it affected him physically. [ 3 ] The Crown also applies for an order that Constable Christopher Leonard Spiers also attend and give evidence by video. Constable Spiers has filed an affidavit indicating he is, as well, continuing as a member of the Royal Canadian Mounted Police.

He is stationed now at the Kimmirut Detachment in the Hamlet of Kimmirut in Nunavut, and he has sworn in his affidavit that if he were required to attend here to give evidence in person he would need somewhere between five and seven days, depending on the weather conditions, to travel here and attend, at great public expense. [ 4 ] Like Constable McKenna, Constable Spiers is expected to testify that he was on duty as an RCMP officer here in the Nelson area on July 26, 2013. He was, like Constable McKenna, engaged in traffic control.

One of his duties included notifying residents to evacuate pursuant to the evacuation order. His evidence is expected to be like that of Constable McKenna, that as he was undertaking his duties he smelled fuel, and he is expected to give evidence that it affected him physically. [ 5 ] The third witness that is the subject of this application is Constable Alan van Hussen. He is a member of the RCMP now stationed in the town of Fisher Branch in Manitoba.

He has sworn that if he is required to attend and testify in person it would take him some four to six days to attend, depending on the weather, at great public expense. Constable van Hussen also seeks to be able to give evidence by video. [ 6 ] Unlike Constables McKenna and Spiers, Constable van Hussen will testify, among other things, that he spoke to Mr. Danny Lasante, one of the co-defendants in this matter, at the Lemon Creek gravel pit shortly after the alleged spill, and Mr.

Lasante made certain representations to him, which the officer documented certainly in a written report that has been disclosed. [ 7 ] The application is opposed by counsel for Mr. Lasante, although not by counsel for the other co-defendant, the Province of British Columbia. [ 8 ] I will note that s. 714.1 of the Criminal Code does give the court a discretionary power to order that a witness in Canada give evidence by means of attending by video conference if the court is of the opinion that it would be appropriate in all of the circumstances.

Those circumstances do include the location and personal circumstances of the witness, the costs that would be incurred if the witness had to be physically present, and the nature of the witness’ anticipated evidence. On that score I am satisfied that the application should be granted. [ 9 ] However, the application is opposed on three other grounds. First, counsel for Mr. Lasante submits that they have not been given adequate notice with respect to the timing of the application and/or the time the witnesses are expected to attend and give evidence by video.

It is the lack of notice, coupled with a continuing concern over disclosure, as I understand it, with respect to notes that may or may not have been made by Constable van Hussen as he spoke to Mr. Lasante in the gravel pit, that is at issue. The submission is that it would be unfair to allow these witnesses to testify by video because of the inability of counsel for Mr.

Lasante to be fully prepared to address Constable van Hussen, I think alone, among all of the other witnesses, particularly with respect to his notes. [ 10 ] It is also submitted, with respect to Constable van Hussen, that defence counsel may or may not want to confront Constable van Hussen with copies of exhibits of materials that have been entered into trial to date. This is day 2 of this trial, of the actual trial, and by my count we are up to ten exhibits.

For the most part, those exhibits are photographs of the Slocan and Kootenay rivers, as well as Lemon Creek, and the road leading up to Lemon Creek, the area that is alleged to be the site of the spill. There are some photographs of the entrance to the Lemon Creek gravel pit, which was the site that Constable van Hussen would have attended at when he spoke to Mr. Lasante.

The submission in this regard is that there is insufficient time, given this application, to transmit those documents and other documents that might be transmitted through to Constable van Hussen’s RCMP detachment office in Winnipeg, Manitoba, where Constable van Hussen would be giving evidence, in time for Constable van Hussen’s testimony. [ 11 ] In reply the Crown submits, among other things, that it in fact did give informal notice to the defendants some time ago that it would be applying to have these officers testify by video but did not provide formal notice of the date of the application or the date of the testimony until late Friday last. [ 12 ] Secondly, counsel submits that, to the best of his knowledge, all of the disclosure in this regard has been provided. [ 13 ] And thirdly, Crown submits that Constable van Hussen would have, realistically, no appreciable evidence to give with respect to the state of the road or the accident site itself.

Although, I accept that Constable van Hussen may have something to say about the entrance to the Lemon Creek gravel site if that becomes -- I do not know whether that would become an issue but it could potentially be an issue that might potentially need to be canvassed with the officer. [ 14 ] Firstly, with respect to notice, I accept that informal notice was given and I struggle still to understand the gist of the submissions with respect to notice, whether it is the timing of the application or the timing of the testimony, but, in any event, assuming that the defendants are now left to scramble with respect to preparing to cross-examine certain witnesses by video, I see nothing in the testimony that is expected to be adduced by Constable Spiers and McKenna that would in any way impede that ability, and so, in the circumstances, I am prepared to allow the application with respect to Constable Spiers and Constable McKenna. [ 15 ] It leaves the question of whether I should allow the application with respect to Constable van Hussen, and at this time I will say just on the basis of the submissions that have been made before me, and on the basis of my understanding of what it is that Constable van Hussen can give relevant evidence in regard to, I am not convinced at this time that it would work an unfairness to the defendants if I

allow Constable van Hussen to testify by video. As I said to Crown, if it turns out in the course of the testimony that some documents have not been provided that need to be provided, it may be that that order would be revisited and Constable van Hussen would be required to continue his testimony in person. [ 16 ] At this point in time, understanding that there may be a question, a live question, as to whether or not Constable van Hussen’s written book or written notes with respect to his conversation with Mr.

Lasante may not have been disclosed, I am simply asking that that issue be canvassed before Constable van Hussen testifies, to ensure that if those notes exist, they are available for the defendants. If it becomes the case that just before the officer testifies the defendants can satisfy me that they have not received the notes in time to properly prepare for cross-examination we can revisit the timing of that testimony.

Again, if before the officer testifies by video, the defendants can satisfy me that they have not been able to properly transmit all the documents that they would like to use to cross-examine Constable van Hussen, the timing of that testimony, either by video or in person, can be revisited. For the time-being I am going to allow that application as well and make the order that Constables McKenna, Spiers and van Hussen be able to testify and give their evidence in this court by means of video conferencing pursuant to s. 714.1 of the Criminal Code . (RULING CONCLUDED)