R. v. P.M.M., 2018 BCPC 373

C itation: R. v. P.M.M. 2018 BCPC 373 Date: 20181120 File No: 25135-1 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. P.M.M. ORAL RULING OF THE HONOURABLE JUDGE J.T. DOULIS Publication Ban pursuant to

Section 486.4 Criminal Code of Canada Counsel for the Crown: P. Beirne Counsel for the Defendant: I. Lawson Place of Hearing: [omitted for publication], B.C. Date of Hearing: November 20, 2018 Date of Judgment: November 20, 2018

Introduction [ 1 ] P.M.M. is before the court charged on Information 25135-1, charged with one count of sexual interference contrary to s. 151 of the Criminal Code and one count of invitation to sexual touching contrary to s. 152 of the Criminal Code . The offences are alleged to have been committed on July 9, 2018, in [omitted for publication], against his [omitted for publication] year old niece, T.T. [ 2 ] Prior to T.T. testifying on the first day of trial, the Crown bought an application to have her testify by way of closed circuit television.

The court had previously ordered T.T. was entitled to witness accommodation, but not in the form the Crown seeks mid- trial. The defence opposes the Crown’s application. Background Facts [ 3 ] On November 2, 2018, upon hearing the Crown’s application the Court ordered that T.T., the [omitted for publication] year old Complainant in this matter, be accommodated pursuant to s. 486.1(1) which permits her to have a support person of the witness’ choice be present and close to the witness during testimony, and s. 486.2(1) which permits the witness testify behind the screen.

The defence did not oppose the Crown’s application. [ 4 ] On November 6, 2018, the Crown requisitioned a closed circuit television system (“CCTV”) to be available for T.T. at the trial of this matter, which commenced today, November 20, 2018. [ 5 ] The Crown did not make a further application for a CCTV. [ 6 ] The Defence opposes the Crown’s application on the basis that to permit such an accommodation would interfere with the proper administration of justice. [ 7 ] The Defence submits that the child’s credibility is the salient issue in these proceedings.

To allow her to testify remotely outside the courtroom would facilitate her ability to fabricate evidence. He argues it is much more difficult for the witness, who is [omitted for publication]s, to tell untruths if she is in the actual courtroom. Legal Framework [ 8 ] Where a witness is under the age of 18 years of age, a prosecutor may apply under s. 486.2(1) for witness accommodation.

Section 486.2 of the Criminal Code states in part: Testimony outside court room — witnesses under 18 or who have a disability 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. 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 undercovercapacity, 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 nationalsecurity or intelligence; (

g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justiceprocess; 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 undersubsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with thatsubsection. 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 arrangementsare made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television orotherwise 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). [9] Also relevant is s. 486.1(1) which states: Support person — witnesses under 18 or who have a disability 486.1

(1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who isunder the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person ofthe witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is ofthe opinion that the order would interfere with the proper administration of justice. [10] An evidentiary basis is not needed for the application if the witness is under 18 years of age. See R. v.

J.Z.S. 2008 (BCCA) 401at paras. 19 and 28. R. v. J.Z.S., 2010 SCC 1 , [2010] 1 S.C.R. 3, aff’g 2008 BCCA 401 a brief review of jurisprudence onpoint, Smith J.A. concluded: “Under our criminal justice system, an accused has no constitutional right to a face-to-face ‘confrontation’with the complainant.” [11] In R. v. J.Z.S. the British Columbia Court of Appeal said at para. 19 that s. 486.2 creates a mandatory presumption in favor ofthe use of the testimonial aid. The

section mandates the court to grant such an application unless to do so would interfere with the properadministration of justice. An order under this

section may only be refused if the judge is satisfied the use of the testimonial aid wouldinterfere with the administration of justice. See R. v. P. (G.A.) 2007 MBQB 127 at para. 18. [12] The inability to cross-examine a witness face to face does not affect trial fairness. R. v. Levogiannis, (SCC),[1993] 4 SCR 475 and R. v. J.Z.S. [13] J.Z.S., on considering the constitutionality of

section 16.1 of the CEA and 486.2 discussed (at para. 26) how these provisionsare the latest in a long line of legislative reforms within the criminal justice system. These reforms have been implemented for thepurpose of facilitating the giving of testimony by children and vulnerable witnesses while ensuring that the rights of the accused arerespected. [14] The Canadian Victims Bill of Right, Bill C-32, came into force on July 23, 2015, changing

section 486.2 of the Criminal Codeof Canada, to expand the availability of testimonial aids presumably in order to help foster a more “user friendly” atmosphere in thecourtroom for certain vulnerable witnesses. [15] There is no onus on the accused to establish the use of the testimonial aid would interfere with the administration of justice. R.v. P. (G.A.) 2007 MBQB 127 at para. 18. [16] In R. v. T. (S.B.) the court interpreted s. 486.2 as permitting the applicant to determine which accommodation is to bepresumptively ordered.

The court continued at para. 41 stating: [41] ... it is when the judge or justice is determining whether the requested testimonial accommodation would interfere with the properadministration of justice that he or she may consider other testimonial accommodations. [17] Mr. Justice Smart in R. v. T. (S.B.) 2008 BCSC 711 at para. 50. at para. 40: [40] The phrase the proper administration of justice is a phrase of wide import. In the context of this subsection it may include manyfactors and considerations.

When an application is made under s. 486.2(1), the judge or justice will likely consider the age of the witness,the nature of the charges, the relationship between the witness and the accused, the need to have the witness view exhibits whiletestifying, and whether the requested accommodation can be properly provided in the particular courtroom or courthouse. This is not anexhaustive list. What is central to the decision is whether the requested testimonial accommodation will enhance or undermine the truth-seeking function of our criminal trial process.

[18] Justice Smart’s decision in T (S.B.) was recently followed by Mr. Justice Tammen in R. v Bell, 2017 BCSC 2303 . Justice Tammen went on in Bell to cite from R. v. W.V., 2016 ONSC 874 , which agreed with S.B.T. and held at para. 10: [12] In R. v. W.V., Gordon J. said as follows at paras. 19 and 20: [19] In the context of criminal proceedings, the administration of justice is the process by which an accused person is investigated,charged and tried. At issue in this case is the trial process. [20] As I have already stated, the proper administration of justice includes ensuring fairness in the trial process.

However, in my view italso goes beyond that. [13] Gordon J. then considered the particular criminal rules that obtain in that jurisdiction, namely, Ontario.

At para. 25, Gordon J. saidas follows: [25] It is worth noting that every accommodation is going to cause some degree of interference with the efficient conduct of the trial.The inquiry for the court in that context is whether the interference is unacceptable in the circumstances. [19] Justice Tammen goes on to say in Bell, at para. 14: [14] In my view, in considering whether or not a proposed means of testimonial accommodation interferes with the properadministration of justice, a trial judge should determine whether the accommodation has the potential to cause a trial which is unfair orotherwise creates an unacceptable risk of impeding the truth-seeking function of the trial process.

In this case, defence counsel submitsthat the use of CCTV for the evidence of the young complainant would interfere with the proper administration of justice for thefollowing reasons: 1. We would lose the solemnity of the courtroom and the witnesses will not appreciate the gravity and importance of their testimony. Inshort, they will fail to grasp the importance of telling the truth. 2. There will be disengagement with the court process by both the witnesses and the jury. 3. The jury will be unable to assess the witnesses’ credibility. 4.

Counsel will be unable to effectively cross-examine the witnesses on prior statements to police and evidence given at the preliminaryhearing. [15] In my view, the witnesses will understand the importance of the occasion and the need to give careful evidence even if they are notphysically in the courtroom with the jury. The jury will equally grasp the importance of the testimony of these witnesses and will notlikely be disengaged from the process of critically assessing the evidence. Good quality CCTV should permit the jury to make thenecessary assessment of credibility.

I accept that there may be some difficulties for counsel if he needs to put portions of prior statementsto the witnesses. However, the exercise of impeachment through use of prior statements can still be done and, in my view, doneeffectively. It may be more cumbersome and less efficient than with a witness who is present in the courtroom, but at the end of the day,there is no actual impediment to full cross-examination of the witnesses. [16] The proposed testimonial accommodation may lead to some trial inefficiency and inconvenience, but it will not interfere with theproper administration of justice.

The use of closed-circuit television will not render the trial unfair, nor will it impede the truth-seekingfunction of the trial. [20] Justice Tammen further stated that if unforeseen difficulties arise during the course of the trial either because of technologicalproblems or otherwise, the Court can re-evaluate the impact of the use of CCTV on the overall trial process. [21] In applying s. 486.2(3) criteria to this case, I note: 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; 13 years old at the time of trial and on the date of the offence, (

b) the witness’ mental or physical disabilities, if any; do not know a factor, but her mother testified about her emotional fragility at thistime, (

c) the nature of the offence; sexual offence, (

d) the nature of any relationship between the witness and the accused; the accused is said to be the perpetrator of the offence againstthe complainant. He is her uncle who resided in her home at one time, (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; unknown, but it is clearfrom the mother’s testimony there is animus between the accused and complainant’s family, (

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 undercovercapacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; NOT APPLICABLE, (f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to nationalsecurity or intelligence; NOT APPLICABLE,

(

g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; significant issue given the historical under reporting of sexual offences against children, particularly in the family and in close knit communities, and (

h) any other factor that the judge or justice considers relevant. In my view the configuration of the courtroom in this small circuit court militates against having the complainant testify in the court room. [ 22 ] I adopt Justice Tammen’s reasoning in the context of this case, and I allow the Crown’s application and order that the complainant, T.T. testify from outside the courtroom by means of closed-circuit television. ____________________________ Judge J.T. Doulis Provincial Court of British Columbia