R. v. E.J.A., 2018 BCPC 278

Citation: R. v. E.J.A. 2018 BCPC 278 Date: 20181023 File Nos: 40239-1, 40239-2-C, 40239-3-C Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.J.A. ORAL RULING ON APPLICATIONS FOR TESTIMONIAL ACCOMODATION OF THE HONOURABLE JUDGE J.P. MacCARTHY BAN ON PUBLICATION 486.5(1) CCC Counsel for the Crown: J. Blazina Counsel for the Accused: J. Wright Place of Hearing: Duncan , B.C. Dates of Hearing: October 2 and October 23, 2018 Date of Judgment: October 23, 2018 INTRODUCTION

[ 1 ] THE COURT: E.J.A. (the “Accused”) is charged on four counts relating to a 14-year-old complainant identified as K.M. K.M. (the “Complainant”) is the daughter of the Accused. [ 2 ] Count 1 alleges that from May 1st, 2013, to August 31st, 2014, inclusive, the Accused for a sexual purpose touched, directly or indirectly, with a part of his body or with an object the body of K.M., a person under the age of 16 years. That is an offence contrary to s. 151 of the Criminal Code . [ 3 ] Count 2 alleges that from May 1st, 2013, to August 31st, 2014, inclusive, the Accused did sexually assault K.M.

That is an offence contrary to s. 271 of the Criminal Code . [ 4 ] Count 3 alleges that from May 1st, 2016, to August 31st, 2017, inclusive, the Accused for a sexual purpose touched, directly or indirectly, with a part of his body or with an object the body of K.M., a person under the age of 16 years. Again, that is an offence contrary to s. 151 of the Criminal Code . [ 5 ] Count 4 alleges that from May 1st, 2016, to August 31st, 2017, inclusive, the Accused did sexually assault K.M.

Once more, this is an offence contrary to s. 271 of the Criminal Code . [ 6 ] The matter is set for trial before the Provincial Court on December 17th to 19th, 2018, at Duncan, British Columbia. [ 7 ] Crown makes two applications for testimonial accommodations for the Complainant being a child under 18.

The first application is under s. 486.1(1) to permit a support person of the witness’ choice (such witness being the Complainant) to be present and close to the witness during the testimony. [ 8 ] The second application is pursuant to s. 486.2(1) to permit the Complainant to provide her testimony from outside of the courtroom.

In this case, such testimony would be given by way of a closed circuit television link (“CCTV”) and the Complainant would be another room located in the Duncan Courthouse, a short distance from the courtroom in which the trial is being conducted. [ 9 ] As I understand it, defence does not oppose the granting of an order on the first application regarding a support person being present while the Complainant is testifying.

Therefore, the order sought under s 486.1(1) is granted. [ 10 ] However, defence does oppose the use of the CCTV as the form of testimonial accommodation being utilized and submits that testimonial accommodation should be by way of the new type of screen that would shield the Complainant while she is testifying in the courtroom. That screen would permit defence counsel, Crown counsel, and the trial judge to see the Complainant and she them, but the Complainant would not be able to see the Accused and the Accused would not be able to see the Complainant directly.

However, I understand that by way of a camcorder focussed on the Complainant, that Accused would be able to see the Complainant whose image would be captured and then presented on a large screen in the courtroom. [ 11 ] The basis for the opposition, in defence’s submission, is that testimonial accommodation by way of CCTV would interfere with the proper administration of justice because this case will turn entirely on credibility which requires the trier of fact to be able to see the Complainant in person and to thereby assist in assessing that witness' credibility.

APPLICABLE PROVISIONS OF THE CRIMINAL CODE [ 12 ] The relevant Criminal Code subsection reads as follows: 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. ...

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony. THE LAW The Nature of the Application and the Approach to be Used [ 13 ] Two decisions of our British Columbia Supreme Court, namely, R. v. Bell , 2017 BCSC 2303 ; [2017] B.C.J. No. 2630 , (“Bell”) ; and R. v. S.B.T. , 2008 BCSC 711 , (“S.B.T.”) have considered this

section and have concluded:

a) Under s. 486.2.(1), it is the applicant who determines which accommodation is to be presumptively ordered rather than the judge.

b) The

section creates a presumption, without a hearing, in favour of the testimonial accommodation requested by the applicant.

c) The onus is no longer on the applicant to demonstrate the need for the requested accommodation - it shall be ordered unless it would interfere with the proper administration of justice.

d) When a judge or a justice is determining whether the requested testimonial accommodation would interfere with the proper administration of justice, he or she may consider other testimonial accommodations. It is when engaged in this analysis that the judge or justice may conclude that the requested accommodation would interfere, but a different accommodation would not.

e) A justice or a judge hearing an application under s 486.2(1) does not have an independent discretion to determine which

testimonial accommodation he or she prefers or believes is better in the circumstances. ( see Bell at paragraphs 3 to 5 inclusive citing S.B.T. at paragraphs 36, 37, 38, 40 and 42 ).

f) The presiding judge or justice must rule on the application which is before him or her and does not have the discretion to consider means of testimonial accommodation other than that requested by the moving party, absent evidence of interference with the proper administration of justice. ( see Bell at para 7 citing R. v. W.V. , 2016 ONSC 874 , which agreed with S.B.T. ) [ 14 ] The conclusion reached in Bell summarizes the consideration of an application under s 486.2(1) at paragraph 10 as follows: I agree with the decision and reasoning of Smart J. in S.B.T.

I find that I must determine if granting the order sought by the Crown would interfere with the proper administration of justice. If not, I must grant the proposed order. The only point at which judicial discretion is engaged is when and if I decide that the accommodation sought would interfere with the proper administration of justice and I must then determine if some other accommodation would not so interfere. I also note that such discretion can be exercised at any point in the proceedings.

Consequently, if it becomes clear that the method being used is unworkable and thus is interfering with the proper administration of justice, the initial order can be revisited. WHAT IS INTERFERENCE WITH THE PROPER ADMINISTRATION OF JUSTICE? [ 15 ] Again, Bell and S.B.T. provide this court with guidance on the issue of what is interference with the proper administration of justice. As noted in Bell , the term is not defined in the Criminal Code .

At paragraph 11, Bell turns to S.B.T. and considers and relies on the following provision found at paragraph 39 of S.B.T. : [39] The phrase “the proper administration of justice” is a phrase of wide import. In the context on this subsection it may include many factors 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 while testifying, and whether the requested accommodation can be properly provided in the particular courtroom or courthouse. This is not an exhaustive 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. [ 16 ] In Bell , the court further notes as follows at paragraph 14: In my view, in considering whether or not a proposed means of testimonial accommodation interferes with the proper administration of justice, a trial judge should determine whether the accommodation has the potential to cause a trial which is unfair or otherwise creates an unacceptable risk of impeding the truth-seeking function of the trial process. [ 17 ] Further in Bell at paragraph 16 , it is noted that some potential trial inefficiency and inconvenience may be caused by the use of CCTV, but the question is then whether it will interfere with the proper administration of justice.

Bell notes as follows: The proposed testimonial accommodation may lead to some trial inefficiency and inconvenience, but it will not interfere with the proper administration of justice. The use of closed-circuit television will not render the trial unfair, nor will it impede the truth-seeking function of the trial. If unforeseen difficulties arise during the course of the trial either because of technological problems or otherwise, I will re- evaluate the impact of the use of CCTV on the overall trial process. I allow the Crown application.

I order that the complainants, M.L. and K.P. testify from outside the courtroom by means of closed-circuit television. CIRCUMSTANCES BEING RELIED UPON BY CROWN [ 18 ] Crown says that it is relevant to its application that the Complainant is very young at only age 14. She made the disclosure back in September 2017 to a crisis nurse and accordingly that disclosure has given rise to the charges against the Accused. Since the alleged offences occurred, the Complainant has been adversely affected emotionally and, in particular, she has expressed suicidal ideation and has suffered from depression.

In fact, it was those conditions that resulted in the Complainant being at the hospital seeing the crises nurse. Also, the offence in this case involves sexual allegations against a close family member; namely, her father. [ 19 ] I further note that the charge periods in Counts 1 and 2 indicate that the sexual offending allegations are historical in nature, and are alleged to have occurred some four or five years ago when the Complainant was only nine or ten years of age.

POSITION OF THE ACCUSED [ 20 ] Defence submits that the use of the screen with the Complainant in the courtroom is necessary and, further, that the use of the CCTV will interfere with the proper administration of justice; in particular, since credibility is the central issue in this prosecution. [ 21 ] In defence’s submission, the most important thing about credibility is that the judge or the trier of fact has the opportunity to see the witness to assist in assessing that credibility.

Defence submits that CCTV does not provide the full opportunity which will be afforded the judge or trier of fact if the witness was present in the courtroom, in person and only approximately 10 feet away, but shielded by the screen from the Accused. Defence suggests that body language, the “non-verbal entities,” and the Complainant’s demeanor are critically important to assessing her credibility.

It is further submitted that this type of in-person observation provides the judge or trier of fact with the “best possible evidence.” [ 22 ] Defence further submits that it is important that defence counsel be able to view the Complainant in person and also be able to view the support person for the Complainant, I presume, to ensure that there is no communication occurring between the Complainant and the support person. Defence says that there is no overriding reason why the Complainant should be outside the courtroom.

Defence further argues that “fairness of the trial” is at stake if the Complainant is allowed to testify outside of the courtroom thus interfering with

the proper administration of justice. Accordingly, defence says that while testimonial accommodation is required, in this case, that theminimum level of testimonial accommodation is all that is necessary in order to prevent the interference with the proper administration ofjustice and, further, that the minimal level that should be used is by way of the use of a screen in the courtroom, along with theaccompanying use of a camcorder, in order to make the Complainant’s video image visible to the Accused. [23] In

summary, defence says the key consideration that the court must take into account and the test as to whether the testimonialaccommodation being sought will interfere with the proper administration of justice is identified in S.B.T. at paragraph 39. That is“whether the requested testimonial accommodation will enhance or undermine the truth-seeking function of our criminal trial process.” In defence’s submission, the use of the CCTV in this case will undermine that truth-seeking function, or at the very least, has thesignificant potential of doing so.

POSITION OF THE CROWN ON THE APPLICATION [24] Crown says, based on the plain reading of s. 286.2(1) and as supported by the case authorities of Bell and S.B.T., the orderbeing sought on the application; namely, testimonial accommodation by use of CCTV, is mandatory unless the order would interferewith the proper administration of justice. [25] Crown is not proceeding under the discretionary provisions of s. 486.2(2), in which case, the court would then be required toconsider the various factors set out in ss. (3) (

a) to (g). [26] Crown says that the issues of credibility and its determination by viewing the Complainant over CCTV will not interfere withthe proper administration of justice. [27] Crown further says that the arguments raised by defence in this case regarding the interference with the administration ofjustice, and in particular, the inability to assess the witness’ credibility and the lack of a basis for the required protection for a witness byway of the use of CCTV, were considered and dismissed in Bell. [28] Crown says that the CCTV is frequently used in the Duncan courthouse and in similar cases with similar types of charges andno problems have arisen with respect to its use.

CCTV has also been used for testimonial accommodation in situations where video-recorded evidence of a victim or witness who is under 18 years of age is admitted and used pursuant to the provisions of s. 715.1(1) ofthe Code. The use of that recorded evidence which is then being viewed by the same individual outside the courtroom has not proven tobe an overwhelmingly problematic concern giving rise to interference with the administration of justice.

ANALYSIS [29] Based upon my review of the decisions in Bell and S.B.T., which I am bound to follow, and my review of the applicablesections of the Criminal Code, I agree with the submissions presented by Crown with respect to the presumptive order that must be madein this case on the basis of the Crown application for testimonial accommodation for this witness, that is, to be by way of CCTV. [30] I must then consider whether the making of an order providing for that form of testimonial accommodation will interfere withthe administration of justice.

For the following reasons, I have concluded it will not. [31] I accept as accurate and relevant the circumstances of the Complainant as outlined by Crown. She is a young person who willbe required to testify about very personal and difficult matters and her personal recollections of the matters giving rise to the charges.

These are relevant factors (but not mandatory factors) for the court’s consideration in part when determining whether there will beinterference with the administration of justice if the testimonial accommodation is made. [32] I must also consider the importance of the impact of the CCTV on the trial fairness.

I have concluded there are no significanttrial inefficiencies and inconveniences that will ensue and which would interfere with trial fairness and the proper administration ofjustice. [33] In that regard, I am mindful that in assessing the credibility and the reliability of a witness, that assessment can be consideredfrom three perspectives:

a) their truthfulness; whether they are telling the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and.

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [34] Relevant factors for assessing the truthfulness and the credibility of a witness include previous inconsistent statements oroccasions on which the witness has been untruthful; inconsistencies in testimony during direct examination and cross-examination;reliable evidence that conflicts with the testimony of the witness and the attitude and the demeanour of the witness. [35] However, when considering demeanour, it is important to consider all the possible explanations for the witness' attitude, and tobe sensitive to individual and cultural factors that may affect demeanour. [36] Trial judges should not place too much emphasis on how a witness behaves while giving evidence when assessing theircredibility (See R. v.

Jeng, 2004 BCCA 464 , at para. 54). In court, witnesses are required to speak about difficult events in avery foreign and public environment. [37] They are often nervous and feel significant pressure when undergoing a prolonged cross-examination (see R. v. Shields, [2017]B.C.J. No. 2608, 2017 BCPC 395, supra, at para. 74).

[ 38 ] Therefore, a witness' demeanour and the observation of that demeanour is but one factor to be considered when dealing with the credibility issue. I am not satisfied that having the Complainant in the courtroom behind a screen is essential to assess her credibility.

In fact, having her in the courtroom even behind the screen, given the whole of the background and the circumstances of these charges, may artificially impact on her demeanour. [ 39 ] Having regard to all of these factors, I am not satisfied that the testimonial accommodation being sought by Crown for this witness and the use of CCTV needs to give way to having the Complainant testify in the courtroom behind a screen in order to ensure a fair trial.

I am not satisfied that the use of CCTV will impede the truth-seeking function of the trial. [ 40 ] I am satisfied that the CCTV equipment and its use can be properly accommodated in the Duncan Courthouse. [ 41 ] Therefore, given all of the above, I find that the use of CCTV in this case for the Complainant’s evidence will not interfere with the proper administration of justice. CONCLUSIONS [ 42 ] Accordingly, the two orders being sought by Crown with respect to testimonial accommodation for the Complainant are granted. (RULING CONCLUDED)