R. v. Kuniliusie, 2022 NUCJ 36

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kuniliusie, 2022 NUCJ 36 Date: 20220928 Docket: 10-19-103 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Marcus Kuniliusie __________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): Counsel (Accused): E. Baasch K.

Selkirk Location Heard: Date Heard: Iqaluit, Nunavut June 17, 2022 Matters: Application to have witness appear by video conference pursuant to Criminal Code of Canada, RSC 1985, c C-46, ss. 714.1 REASONS FOR DECISION (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This is an application by the Crown pursuant to s. 714.1 of the Criminal Code , RSC 1985, c C-46 ( Criminal Code ) to have witnesses appear by videoconference at an upcoming trial. II. EVIDENCE

[ 2 ] It is alleged that on December 28, 2019, the accused was involved in a firearms incident in Pangnirtung, during which the accused discharged a firearm towards his domestic partner and an RCMP officer. As a result of the incident he has been charged with: • discharging a firearm with intent to prevent his arrest at or near Cst. Burke (s. 244 of the Criminal Code ); • careless use of a firearm ( s.86(1) of the Criminal Code ); • uttering threats to Cst. Burke (s. 264.1(1)(

a) of the Criminal Code ); • possession of a firearm for a dangerous purpose ( s. 88(2) of the Criminal Code ). [ 3 ] If convicted, one of the charges will lead to a mandatory minimum sentence of four years’ incarceration. III. SUBMISSIONS [ 4 ]

Section 714.1 of the Criminal Code provides that a court may order that a witness testify via audioconference or videoconference, if the court is for the view that it would be appropriate to do so. The provision is discretionary.

In exercising its discretion the court must consider all of the circumstances, including: • the location and personal circumstances of the witness; • the costs of appearing personally; • the nature of the evidence; • the suitability of the location from which the witness will give evidence; • the right of the accused to a fair and public hearing; • the nature and seriousness of the offence. [ 5 ] I adopt the comments made in R. v.

Akpalialuk, 2022 NUCJ 35 released concurrently with this decision, regarding the impact of the COVID-19 pandemic, discussion regarding any potential value by in-person appearances, and the role of costs as a consideration in such applications. [ 6 ] The Crown initially sought approval for three witnesses to testify by video but at the hearing agreed that one of the witnesses should appear in person and abandoned its application in relation to Cst. Bourke. [ 7 ] The two witnesses that the Crown seeks to have appear remotely are both police officers. [ 8 ] Sgt.

Bowles was stationed in Pangnirtung at the relevant time. He is now residing in Alberta. His involvement in the matter appears to have begun after the arrest of the accused. It is not expected that he will testify as to the allegations that make out the charges. It is expected he will testify about exhibits seized at the scene and interactions between the police and the accused after the arrest.

[ 9 ] Cst. Neptune was stationed in Pangnirtung at the relevant time. He is now residing in Ottawa. He was one of the officers that responded to the initial call of an active shooter. He is expected to testify about how the incident unfolded once the police received the call. He is also expected to testify in a voir dire regarding a spontaneous utterance made by the accused. IV. ANALYSIS [ 10 ] As in Akpalialuk , the factors the Crown relies upon in support of remote appearances by the witnesses are the COVID-19 pandemic and costs.

There is nothing in the personal circumstances of the witnesses that militates against an in-person appearance. [ 11 ] The nature of the evidence to be given by the witnesses is different, as one witness will provide direct evidence about the allegations and the other will provide evidence about what happened after the fact. While neither counsel addressed it directly, it would seem that the “after the fact” evidence is potentially less controversial or relevant. It is more likely that Cst. Neptune will be called upon to place people and things on maps, estimate distances, etc.

This is the type of evidence which is not always amenable to a remote appearance. The application to have Cst. Neptune appear remotely is denied. [ 12 ] It is difficult to assess the appropriateness of permitting Sgt. Bowles to testify remotely as there is little information about the nature of his evidence other than a very general overview. Based on the information that is available, it would seem that his evidence might be provided as part of the narrative rather than as providing evidence that goes to the elements of the offence that must be proven.

It is on this basis that I am prepared to grant the Crown’s application for a remote appearance. Should it become clear at trial that the nature of the evidence goes further than suggested or should there be any difficulties, the trial judge has the authority to stop the proceedings and direct that the witness appear personally. The Crown’s application to have Sgt. Bowles testify via videoconference is granted. [ 13 ] The court has now had a number of applications under similar circumstances seeking permission to have witnesses appear remotely.

The decisions in those applications have hopefully provided some guidance to counsel such that the factors discussed in those decisions are considered when deciding whether or not to bring such an application. Dated at the City of Iqaluit this 28th day of September, 2022 ___________________ Justice S. Cooper Nunavut Court of Justice