R. v. S.F., 2022 BCPC 283

Citation: R. v. S.F. 2022 BCPC 283 Date: 20221214 File No: 43600-2 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. S.F. Ban on Publication pursuant to s. 486.4(1) Of the Criminal Code of Canada RULING ON APPLICATION OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: T. Morgan Appearing on his own behalf: (by video conference) S.F. Place of Hearing: Port Alberni , B.C. Date of Hearing: December 14, 2022 Date of Judgment: December 14, 2022

THE APPLICATION [ 1 ] The Crown brings an application to have counsel appointed for the purpose of cross-examining the complainant. I think it is fair to say that the Crown thinks one lawyer cross-examining the complainant and the investigating officer might make more sense in this case versus a lawyer just cross-examining the complainant. It is expected that the complainant and investigating officer are the only two witnesses that would be called by the Crown. [ 2 ] S.F. is self-represented. He originally indicated in Court that he opposes the application.

He has mentioned that, for his own reasons, he does not like the idea of any lawyer helping him with his case. It may be, as he has stated in these proceedings, that he has a distrust of lawyers or that he is simply more comfortable representing himself without having to rely on legal professionals. S.F. changed his position today in court. He has indicated that he does not oppose the appointment of counsel. However, he indicates that he has arranged for a 3 rd party to do the cross-examination.

He has expressed a view that the cross-examination need not be done by a lawyer. [ 3 ] We were supposed to have a hearing two days ago on this issue. Through no fault of S.F. or the Crown that hearing did not take place. The Crown indicated that there was an appearance and the matter was adjourned to yesterday. They advised that S.F. did not appear two days ago. S.F. tells me today that he was not available yesterday. [ 4 ] I appreciate it must be frustrating to have matters unilaterally adjourned. I can assure the parties I appreciate them being present on such short notice.

I also want to apologize to the parties for not being able to deal with this application two days ago. THE CHARGES [ 5 ] S.F. is charged with criminal harassment and voyeurism. The Crown notes that the complainant was his intimate partner and that they have children together. THE CROWN ARGUMENT [ 6 ] The Crown has provided a very helpful legal brief that contains their argument and references to cases. The crux of their argument is captured in paragraph 5 and 6: The Law and Analysis 5.

Section 486.3(2) provides that when any accused is charged with specific enumerated charges, (e.g. s. 264 criminal harassment) the judge shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such witness, order that the accused not personally cross examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to cross-examine. 6. Section 483(2) generally seeks to accommodate and facilitate the giving of a full and candid account of witness of acts complained of. The

section is presumptive and therefore the court is mandated to grant the application unless to do so would interfere with the proper administration of justice—no longer is the applicant required to establish an evidentiary basis. [ 7 ] They rely on a number of cases. They specifically refer to R. v. T.(S.B.), 2008 BCSC 711 ; R. v. J.Z.S., 2008 BCCA 401 , R. v. C.G.M., 2015 ABCA 375 and R. v. D.C., 2008 NSCA 105 . CRIMINAL CODE

SECTION [ 8 ]

Section 486.3(2) Accused not to cross-examine complainant - certain offences

(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination. ANALYSIS [ 9 ] This

section is not the same as s.486.3(3), which I would describe as a broader discretionary

section that requires a judge to consider a broad range of factors, some of which are listed in s.486(4), such as age of witnesses and nature of offence. [ 10 ] The

section in our case seems clear. S.F. is charged with a

section 264 criminal harassment charge. E.F. is the complainant, or to use the statutory language, the victim. She is also a witness. Presumptively, in response to the application, the Court must order that the accused not personally cross-examine this witness. If the order is made, counsel will be appointed to conduct the cross-examination. [ 11 ] There is another question to consider. Essentially, the presumption is rebuttable.

For example, if I am of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination, I might allow it. [ 12 ] The onus of establishing that the proper administration of justice requires the accused to personally conduct the cross- examination is on the accused. He must satisfy the Court that on the balance of probabilities, he should be allowed to conduct the cross-

examination personally. A brief overview of a number of cases lead me to the conclusion that courts rarely, if ever, allow an accused topersonally cross-examine a victim witness in a criminal harassment trial. “PROPER ADMINISTRATION OF JUSTICE” CONSIDERATIONS IN CASE LAW [13] I am of the view that the administration of justice requires me to consider what the function of a court is. [14] R. v. Fazekas, 2010 ONSC 6603 is a decision of the Honourable Justice Poupore.

The case pre-dates our section, but dealt withan accused who was charged with criminal harassment, under a similar pre-existing provision of the Criminal Code. [15] The accused argued that his constitutional right to a fair trial and the proper administration of justice requires him to personallycross-examine the complainant. He said “he knows her well and could get her to admit certain facts under oath that no lawyer could.” There were also arguments that the appointment of counsel went contrary to presumption of innocence.

Essentially, it was argued thatthe presumptive approach to the appointment of counsel presupposed an underlying fear, which was contrary to the presumption ofinnocence. They relied on R. v. D.P.G., [2008] O.J. No. 767 (S.C.). [16] I note in D.P.G. the accused takes a similar position to what S.F. has mentioned in our application. In D.P.G. the accused argued“his past experience with lawyers left him without any confidence that the questions he wishes to ask will be put to the witnesses”. [17] In R. v. Grey, [1996] O.J.

No. 4743 (C.J.) the accused argued that “it is only he who can bring out an accurate reflection of therelationship …” [18] The court in Fazekas at paragraph 17 relies on R. v. P.N.S., [2010] O.J. No. 2782 (C.J.) wherein they described the purpose ofthe appointment of counsel provision which is: found within that part of the Criminal Code setting out legislated aids for a witness in court, such as screens and support people, tofacilitate a witness providing full and candid testimony.

Specifically, s. 486.3, if an application is made, authorizes the court to order anaccused not to cross-examine a particular witness directly, but to insert a “legal screen” between the accused and witness by ensuring athird party conduct the cross-examination. [19] Essentially, to me, Justice Poupore in Fazekas summarizes that the rules around appointment of counsel requires a need “tofacilitate the admissibility of relevant and probative evidence while maintaining the traditional safeguards for challenging the reliabilityof their evidence.” [20] R. v. Agar 2007 BCPC #26636-1-K appears to be an unreported case.

However, I was able to locate some information from theDepartment of Justice Website under the overall category of testimonial support provisions. In that case the accused was charged withcriminal harassment. The complainant had no disability but had been in a lengthy domestic relationship with the accused. Counsel hadbeen appointed, but the accused was unwilling to instruct him. I note this may be a similar position to which S.F. takes in thisapplication. He has indicated that he wants absolutely no assistance from lawyers.

From that, I assume that there is a possibility that ifcounsel is appointed, S.F. may not instruct them to participate in the trial process. Of course, as I will discuss below, that would beS.F.’s right. [21] In the Agar case, the Crown argued that, in light of the accused’s behaviour, he should not be entitled to cross-examine. However, the Judge concluded that the right to cross-examine was required for the proper administration of justice.

The accused wasagreeable to cross-examining the complainant by way of CCTV, and that was the order that was granted. [22] The Agar and Fazekas cases lead me to the conclusion that it is possible for a trial judge to create a mix of ‘screens’. Forexample, if I thought it was appropriate, I could consider allowing testimony by CCTV, or perhaps even a witness screen as well as havesome degree of personal participation of the accused in the cross-examination process.

In raising these points, I remind myself again,that it is for the accused to prove on the balance of probabilities that the proper administration of justice requires an order to permit‘personal cross-examination’, even if I find other witness aids are appropriate. [23] R. v. Predie, [2009] O.J. No. 2723 (Ont.

SCJ) is a case where Justice Boswell describes the trial process in this way: [6] The goal of the trial process has been described by the Supreme Court of Canada as “truth seeking, and to that end, the evidenceof all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth”: R. v. Levogiannis, (SCC), [1993] S.C.J. No. 70, at para. 13. [24] Justice Boswell concluded that even allegations of domestic violence can raise the concern of “power imbalances, abuse – bothphysical and psychological – and control.” The issue considered was related, but different.

The question in that case was whether a fulland complete account of the evidence could be provided, if counsel was not appointed. [25] The court had concerns that the accused might give an emotion-driven cross-examination which “will only heighten the anxietyand fearfulness of the witness and will increase the likelihood that the encounter between examiner and witness will take on the characterof the very kind of domestic dispute that appear to have given rise to the charges now before the Court.” [26] I accept that Justice Boswell’s conclusions are similar to those provided by Justice Smart in the Crown’s authority R. v.

T.(S.B.),2008 BCSC 711 with respect to the meaning of the phrase “the proper administration of justice.” [27] R. v. Fox, April 24, 2017 BCSC 854 is a decision where the accused was charged with criminal harassment. In that case, theaccused argued that the proper administration of justice required that he personally conduct the cross-examination. The Crown’sargument in that case is similar to the Crowns argument in this case. At paragraph 5 Justice Holmes summarizes the Crown’ position: [5] The Crown relies instead on the presumptive availability of the order, and on what the Crown says is Parliament's clear

intention to encourage and facilitate the participation in the criminal justice system of victims of alleged harassment. As to the latter basis, I agree with Mr. Myhre that such an intent is made plain in s. 486.3(2) itself, as well as in the

preamble to Bill C-2, 1st Sess., 38th Parl., 2005 (assented to 20 July 2005), S.C. 2005, c. 32, which introduced, among many other amendments, those that made the order presumptively available in respect of charges under s. 264 . [ 28 ] Mr. Fox argued that the purpose of the sections was “to protect vulnerable witnesses, and not to facilitate an abuse of the criminal justice system such as, he submits, Ms.

Capuano is perpetrating through her allegations in support of the charges.” [ 29 ] His second argument, also a point similarly framed by the accused in our case was that “any counsel appointed to cross - examine on his behalf would not act in his best interests.” [ 30 ] A third argument is worth noting. In that case, the accused feared that having counsel appointed would mean that he, as an accused person, might disclose information that would be passed on to the Crown. It appears in our case this is also a concern of the accused.

Or at least he mentioned a similar type of concern with respect to his previous counsel. [ 31 ] In the Fox case, Justice Holmes found that the accused’s views were “based only on speculation or a faulty understanding of the criminal justice process …” and that “Our system of criminal justice relies heavily on lawyers complying with their ethical obligations. There is no reason to believe that a lawyer appointed to cross-examine on Mr. Fox.’s behalf would not do so.” [ 32 ] I wish to borrow some excerpts of some commentary provided to me by The Honourable Judge Koturbash.

These comments are not yet published, but I did want to acknowledge where I got them. In R v Jerace , 2021 BCCA 94 , the court discusses the unique relationship between court-appointed counsel and points out that sometimes trial judges will be called upon to mediate disputes between appointed counsel and the accused. The court writes starting at paragraph 98: The application of these principles to counsel appointed under s. 486.3 of the Code to conduct a cross-examination for an unrepresented accused presents additional challenges... In R. v.

Atzenberger , 2018 BCCA 296 , MacKenzie J.A. observed at paras. 52–55 that there was some uncertainty about the nature of the relationship between the accused and counsel appointed under s. 486.3 , and specifically, who has the decision-making authority on the cross-examination. In R. v. Faulkner , 2013 ONSC 2373 , aff’d 2018 ONCA 174 , the court considered that it is appointed counsel who controls the cross-examination, as would be the case with retained counsel, not the accused. However, trial judges in two subsequent cases, R. v. Bakhash , 2017 ONSC 3835 , and R. v.

Thornton , 2014 ONSC 6688 , concluded that since the appointment under s. 486.3 is made for the benefit of the witness, not the accused, appointed counsel must at a minimum pursue lines of inquiry that the accused wishes to pursue, provided it is proper to do so. In R. v. Lundrigan , 2020 ABCA 281 at para. 82 , the challenge for court-appointed counsel was expressed in this way: Counsel must tread a careful line. On one hand,

section 486.3 counsel must confer with the accused to ensure all appropriate lines of questioning consistent with the theory of the defence are pursued in the cross-examination of the complainant. On the other, counsel is not a puppet controlled by the accused. [Footnotes omitted.] In my view, this succinct passage captures the balance that must be struck by appointed counsel. Effective cross-examination requires an understanding of the objectives sought to be achieved, the dangers lurking for a careless question, and the proper limits to cross- examination.

Cross-examination of an underage complainant in a sexual assault trial presents even greater challenges. If cross- examination is to serve a useful purpose for the accused, it is important that counsel not be tied to a script, or to a requirement that each of the questions proposed by the accused must be asked. On the other hand, just as an accused is entitled to defend himself or herself, however unwise such a course of action may be, an accused is entitled to set the overall strategy for the defence.

At a minimum, counsel must confer with the accused to understand the theory of the defence and must attempt to advance it within the professional limits required for a properly conducted trial. Where counsel is appointed under s. 486.3 , it may become necessary for the trial judge to mediate disagreements between counsel and the accused as to the lines of inquiry to be pursued in cross-examination. In this case, after the appointment was made, the trial judge explained to Mr.

Jerace that if there were inquiries he considered needed to be made beyond the questions asked by counsel, he should raise that with the judge for a ruling: CONCLUSIONS [ 33 ] This case is less about whether counsel should be appointed. I note that counsel are regularly appointed in most any case where a complainant is going to be potentially cross-examined. I say “potentially”, because while in most cases complainants are cross- examined, it is the right of the accused to make the decision what, if any, questions should be put to any witness in a trial when they are accused of a crime.

Whether a question is probative of a relevant issue is also a consideration in this process. [ 34 ] It is the accused’s right to cross-examine E.F. However, this right is not unlimited. He does not have the “right” to cross- examine her personally.

To assert that such a right exists would be to forget that the proper administration of justice not only requires me to be respectful to the accused’s right to a fair trial but also justice requires me to consider that the truth seeking process sometimes requires courts to take into consideration the needs of others, such as witnesses. [ 35 ] I do not need to make a finding that E.F. is a particularly vulnerable witness. As Justice Boswell points out in the Predie decision:

[7] Giving evidence in a trial is not a common experience for many witnesses. Speaking in public does not come naturally to most people. Being questioned in a formal setting, with a judge looking over one’s shoulder and a jury listening intently to every word, is a daunting experience, particularly when the subject matter is, in many cases, intensely personal to the witness. The court room setting can undoubtedly be an inhibiting force to any witness.

But for some witnesses, the circumstances of the case and the dynamics of the relationship of the witness to the accused are such that the risk of inhibition becomes so great that concern arises as to whether the court will obtain a full and candid account of the evidence of the witness. [ 36 ] The accused, S.F., has not established that the proper administration of justice requires that he perform the questioning directly. In fairness to his position, he may still believe that there are reasons that support him personally cross-examining the complainant.

However, he does not oppose the application, has chosen not to provide arguments favouring his position and appears to have made some arrangements for a third party to do the cross-examination. [ 37 ] I am making an order that counsel be appointed to cross-examine the complainant.

The nature of the charge, the previous relationship that existed between accused and victim and the fact that this is a criminal trial, and that the charge is one of criminal harassment, all favour the granting of the application. [ 38 ] I appreciate and accept that S.F. is of the view that the RCMP have conspired against him and I have put my mind to whether the appointment of counsel might be appropriate to cross-examine the investigating officer. There are two points I would like to make.

First, the officer is not a ‘witness who is a victim’ and as such, in my view, separate application would need to be brought. Second, while I do not know the officer, I expect he is a professional and I have not been told of any reason why he could not answer questions from the accused. [ 39 ] At some point, S.F. asked whether he could write out the questions, provide them to the Court and Crown and essentially read them to the witnesses. At one point, he even suggested that I, as the trial judge, might take on this role.

Failing either of these, S.F. even at one point, perhaps jokingly, said that he would simply hire an actor to read these questions when it came time to cross-examining the complainant. [ 40 ] Certainly it would be improper to have the Crown or myself involved in the cross-examination process. For example, it is often the courts role to ‘offer a helping hand’ when a person is unrepresented. But it is not my role to take on the appearance of being an accused’s representative or counsel. [ 41 ] I have put my mind to the idea of having a ‘non-lawyer’ person, whether a paid advocate or not, read out these questions.

This is a question I had not previously thought about in the context of what self-represented accused people could seek in criminal proceedings. Sometimes in family or small claims matters litigants are granted the ability to have certain types of ‘non-lawyer’ assistance. [ 42 ] In the criminal context, at least in the circumstances of this case, I find it would be improper. There are many rungs of advocate participation in a court setting. For example there are temporarily or full time articled law students. Their power to be in a court is tethered to their principal.

That is where they derive their power to appear in courts and advocate on behalf of clients. Their ability to be in court is wholly dependent on their principal’s ability to appear in court. [ 43 ] Sometimes ‘summer’ law students appear in courts and tribunals. If they are not ‘articled’, they then need the permission of the court to appear. Or in other words, they ‘need leave’ of the court. There are also any number of legal advocates that can assist people in courtroom settings or in tribunals, such as landlord tenant hearings.

Most of these advocates receive a degree of training and are supervised by lawyers in their agencies. [ 44 ] I acknowledge that the BC Provincial Court website provides written “Guidelines for Using a Support Person in Provincial Court”. However, there are limitations as to whom can support a litigant. Even though I acknowledge the trial judge has the ability to approve support person’s for particular tasks, and even in its most generous reading, I do not think allowing an actor to ‘play the role’ would serve to enhance the administration of justice.

To the contrary, an actual lawyer is better suited to represent the legal interests of the accused. They also have a professional and ethical duty, not only to their client, but to the court as well. [ 45 ] However, once more, it is S.F.’s right to have questions put to the complainant. Now that I am creating an order that counsel be appointed, it will be S.F.’s right to instruct that lawyer as to how he wants cross-examination completed. It may well be that S.F. will script out questions and require his lawyer to ‘stick to that script’. It is possible some questions will be fine and others will be objected to.

As the trial judge I will deal with objections as they arise. [ 46 ] I note that I am aware that the process of cross-examination is often more fluid than scripted. How S.F. communicates with his lawyer on unexpected portions of testimony, would be between him and his counsel to sort through. [ 47 ] I know that these reasons are somewhat detailed. The reason I have provided them is because S.F. has indicated his displeasure with counsel being appointed for the purpose of cross-examination. Court time had been set aside for me to hear submissions.

I had asked the Crown to provide brief submissions as to why the application was being made. They provided me with a brief outline of why they submit counsel should be appointed. I still consider it my duty to ensure that the integrity of the truth finding process be protected. [ 48 ] I grant the applicant’s request to have counsel appointed for the purpose of cross-examination. [ 49 ] Should S.F. prefer to privately engage alternate legal counsel, outside of this appointment process, that is his choice. Often people charged with crimes prefer to hire their own lawyer.

However, I would simply ask that the legal professional that cross-examines the complainant be a duly qualified lawyer. One that has the ability to represent clients in criminal matters, in the jurisdiction of British Columbia.

_______________________________ The Honourable Judge Wolf