R. v. Akpalialuk, 2022 NUCJ 35

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Akpalialuk, 2022 NUCJ 35 Date: 20220928 Docket: 10-19-87 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Jessica Akpalialuk __________________________________________________________________ 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 of the Criminal Code , RSC 1985, c. C-46 ( Criminal Code ) to have witnesses appear by videoconference at an upcoming trial.

II. BACKGROUND [ 2 ] It is alleged that Jessica Akpalialuk discharged a firearm from the window of a building over a period of three hours. As a result, she is charged with a number of offences including firearms offences, breaches of court orders, an uttering threats charge, and a charge of resisting a police officer. If convicted, one of the charges will lead to mandatory minimum sentence of four years’ incarceration. III. ANALYSIS [ 3 ]

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. [ 4 ] If it is proposed that the witness testify by audio conference the court must also consider any potential prejudice to the parties by the fact that they will not see the witness. [ 5 ] This provision is not new.

It was first enacted in 1999. It was amended in 2019 to specifically refer to “audioconference” and “videoconference” (having previously provided for testifying “…in the virtual presence…” of the court) and to expand the list of factors that the court should consider. It does seem however that with advances in technology and, in particular, with the onset of COVID-19, such applications have become more frequent in recent years. [ 6 ] I note that the enumerated factors that the court must consider in such an application is not exhaustive.

Indeed, although prior to the 2019 amendments s.714 enumerated only three factors for the court to consider, the jurisprudence supports the proportion that courts frequently considered factors not enumerated ( R. v. S.D.L ., 2017, NSCA 58 , at paragraph 28 ). There may be other factors, particular to a case or to a region, that are relevant to a determination of whether a remote appearance by a witness is appropriate. A. COVID-19 Pandemic: [ 7 ] In the spring of 2020 the world was hit with a global pandemic.

Travel restrictions were imposed, borders were closed, businesses closed their doors to the public and employees alike. Everyone became much more dependent on technology than they had been previously. The impact on this court was a cancellation of court circuits and in-person appearances. Many courts transitioned into remote hearings, the option being a “remote” hearing or no hearing at all. [ 8 ] The situation has changed. Borders have reopened, businesses have reopened, and many people are returning to the workplace.

While it cannot be said that COVID-19 is no longer with us, nor can it be said that the situation is the same as it was at the height of the pandemic. COVID-19 is no longer a compelling reason to appear remotely rather than in person. B. Is There Value Added With In Person Appearances: [ 9 ] It is worth considering whether being in a courtroom setting brings something to the proceedings that a remote appearance does not. Courtrooms tend to be somber places. They are formal settings. They can be intimidating. One of the reasons for this might be the seriousness of the business which is conducted in a courtroom.

In the same way that witnesses in court are not just asked to tell their story, but are required to take an oath or affirmation prior to doing so, the courtroom setting is arguably designed to remind people of the seriousness of the business being conducted.

While much of the discussion regarding witness testimony has focused on ensuring the witness is as comfortable and relaxed as possible, some might argue that a more formal environment helps to ensure that everyone understands and respects the gravity of the proceedings, and that a remote appearance does not have the same impact. [ 10 ] There has also been much discussion as to whether the use of video technology actually enhances the ability of the court to observe the demeanour of a witness. The experience of some courts is that they are able to more clearly see the witness.

The experience will vary depending on the quality of the technology and the setting the witness is testifying from. The quality of the technology in the north, particularly outside of larger, “hub” communities, is often not of good quality. In particular, there can frequently be a delay, which can impact the natural flow of witness testimony.

Further, I am not satisfied that the ability to observe body language, which plays a significant role in communication, is not diminished by a video appearance. [ 11 ] 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. [ 12 ] The two witnesses that the Crown seeks to have appear remotely are both police officers. [ 13 ] Cst. Sousa was posted in the community at the time of the incident and was involved in the investigation. He is currently with the Major Crimes Unit (MCU) based in Iqaluit.

As a member of the MCU he may be called upon at any time to respond to a major incident in a community. [ 14 ] Mr. McKenna is a retired member of the RMCP, currently living in British Columbia. He was on relief duty in the community at the time of the incident. He no longer has access to the RCMP database to review the file but does have some of his recorded notes. [ 15 ] Both of these witnesses responded to the initial call and were involved in the incident as it unfolded.

They will give direct evidence of the alleged offences. [ 16 ] The driving factors in support of the Crown’s applications are the COVID-19 pandemic and costs. [ 17 ] I have previously discounted COVID-19 as a significant factor, given the current stage of the pandemic. [ 18 ] The issue of costs is always a relevant factor however, as stated in prior applications, it cannot be the driving factor ( R. v. Ikalukjuak, 2022 NUCJ 17 ). As discussed in Ikalukjuak , the court must be cautious when considering such applications in the context of RCMP officers.

These witnesses are routinely relocated and will often not be in the same community at the time of the trial. If cost is the driving factor in such applications, there is a risk that a special category of witnesses will develop, based on the witness’ status as a police officer. IV. CONCLUSION [ 19 ] Each of the witnesses that the Crown would like to appear remotely were eyewitnesses to the event and will give direct evidence.

The nature of the charges suggests that there may well be exhibits, such as maps, put to the witnesses. The charges are serious, the consequences to the accused upon a conviction being a minimum sentence of four years custody. [ 20 ] I am not satisfied that the witnesses should be permitted to testify remotely. The applications are dismissed. Dated at the City of Iqaluit this 28th day of September, 2022 ___________________ Justice S. Cooper Nunavut Court of Justice