Her Majesty the Queen - v. -, 2020 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 26 Information: 90169678 Location: Saskatoon Date of Application: June 18, 2020 Date of Decision: June 25, 2020 _____________________________________________________________________________ Between: Her Majesty the Queen - and - Vern Benjaminson Appearing: L. Lê For the Crown R. Piché For the Accused DECISION – SS. 714 .1 AND 540(7)

(9) OF THE CRIMINAL CODE R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged with impaired driving and over .08 causing death arising from a motor vehicle accident near

Kindersley, Saskatchewan. A preliminary hearing is scheduled for July 7, 2020 in Kindersley. [ 2 ] The Crown has made application pursuant to s. 714.1 of the Criminal Code to have Constable Estabrooks of the RCMP testify via video conferencing and to tender certain documentary evidence at the preliminary hearing pursuant to s. 540(7) of the Criminal Code .

Both aspects of the Crown application are opposed by defence. [ 3 ] In the event that the Crown’s application to tender the documents as evidence is granted, defence counsel seeks an order for cross-examination pursuant to s. 540(9) of the Criminal Code , particularly with respect to the expert evidence of the toxicologist, Tracy Cherlet, which is opposed by the Crown. [ 4 ] If the defence request for cross-examination is granted, the Crown has made further application to have the toxicologist available by video-conference, which is also opposed by defence. [ 5 ] As a preliminary matter, defence counsel raised at the outset of the hearing that there was no evidentiary basis for the applications put forward by the Crown, specifically no affidavits filed in support.

The Court notes, however, that neither s. 714.1 nor s. 540(7) requires same. Further, no case authority was filed in support of the defence position. [1] Accordingly, the Court is content to rely upon submissions of counsel for the purpose of establishing the factual background for the applications. II

SECTION 714.1 APPLICATION – CONSTABLE ESTABROOKS [ 6 ]

Section 714.1 of the Criminal Code directs the Court to consider all of the circumstances including the following when deciding this application:

a) location and personal circumstances of the witness;

b) the costs that would be incurred if the witness had to be physically present;

c) the nature of the witness’ anticipated evidence;

d) the suitability of the location from where the witness will give evidence;

e) the accused’s right to a fair and public hearing;

f) the nature and seriousness of the offence; and

g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the Court were to order the evidence to be given by audio conference. (not applicable here) [ 7 ] Constable Estabrooks currently resides and works in Moncton, New Brunswick. The cost to bring him to Kindersley Provincial Court would be approximately $1,450.00, according to the Crown, for air fare, car rental and accommodation. [ 8 ] Constable Estabrooks was one of the first RCMP responders to the incident before the Court.

He would testify as to date, time, jurisdiction, identity, and interactions with the accused as well as his observations regarding the accident scene. The Crown also intends to call other civilian evidence regarding the identity and circumstances of the incident. [ 9 ] Defence counsel maintains that Constable Estabrooks, in addition to the foregoing, was responsible for preparing and swearing two Informations to Obtain (ITOs) for medical records and a Production Order regarding same, so in all respects is a critical Crown witness.

To permit video attendance would inhibit the anticipated vigour of cross-examination and undermine the concept that court matters are public events where physical attendance is typically required. [ 10 ] One further matter of significance raised by the Crown is, of course, the unique circumstances bestowed upon all of us relating to the COVID-19 pandemic. To require Constable Estabrooks to travel from his home in Moncton would subject him to increased personal contact involving significant air travel and accommodation attendant thereto.

As well, he would be required to self- isolate for a 14 day period upon his return to New Brunswick. [ 11 ] The Crown advises that suitable arrangements can be made for the video attendance of Constable Estabrooks in Moncton. The Kindersley circuit court point has recently been equipped with a video cart, the same as utilized in our main courts in Saskatoon, making it fully technologically capable of accommodating video evidence through current operational platforms such as Webex or CCTV.

Notwithstanding the seriousness of the charges, the Court is satisfied that the ability to elicit evidence will not be compromised if rendered by video, particularly since assessment of credibility is not required for the purposes of the preliminary hearing. [ 12 ] On balance, considering all of the circumstances, the Court is satisfied that Constable Estabrooks should be permitted to testify remotely by video. III SECTION 540(7) – CROWN APPLICATION TO TENDER DOCUMENTS [ 13 ] The Crown seeks to tender the following documents into evidence pursuant to s. 540(7) of the Criminal Code : (

a) Forensic Science and Identification Services Laboratory Report One , along with related certificates of analyst, dated 2017-04-06

from Tracy Cherlet, Toxicology Services, National Forensic Laboratory Services – Edmonton ( alcohol analysis results ) (

b) Forensic Science and Identification Services Laboratory Report Two , from Tracy Cherlet, dated 2017-06-01, Toxicology Services, National Forensic Laboratory Services – Edmonton ( drug analysis results ) (

c) Forensic Science and Identification Services Laboratory Report Three , Tracy Cherlet, dated 2018-06-21, Toxicology Services, National Forensic Laboratory Services – Edmonton ( retrograde extrapolation results ) (

d) Coroner’s Report for Nova Baker dated 04 January 2018 (

e) Medical record of Vern Benjaminson relating this incident from Kindersley Integrated Healthcare Facility and Royal University Hospital (

f) SGI Certificate of Registration for vehicle plate 182KMC [ 14 ] Section 540(7) of the Criminal Code reads: A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded. [ 15 ] Although defence opposes the application, the only significant concern was related to the relevance of the medical records due more to their volume and lack of specificity.

In response, Crown counsel filed supplementary material identifying and paring down the intended medical records being relied upon to 11 documents. [ 16 ] The documents sought to be tendered are not statements of key witnesses where ultimate credibility is paramount. [2] Rather, the documents are in the nature of expert medical and professional reports as well as institutional business records. [ 17 ] Accordingly, the Court is satisfied, on balance, that the threshold required in s. 540(7) of the documents being “reliable and trustworthy” has been met and that this is an appropriate circumstance to admit them as evidence at the preliminary hearing.

IV DEFENCE APPLICATION TO CROSS-EXAMINE PURSUANT TO S. 540(9) [ 18 ] Section 540(9) reads:

(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7). [ 19 ] Defence counsel urges that the Court order the attendance of the toxicologist, Tracy Cherlet, for purposes of cross- examination.

Crown is opposed on the basis that all relevant information relating to the analysis, foundation, assumptions and methodology has been provided in disclosure making personal attendance of the expert unnecessary at this juncture. [ 20 ] Defence points out that much of Ms. Cherlet’s evidence is based upon her opinion which is open to

interpretation and challenge. Since her conclusions are such a critical component of the Crown’s case, to deny the accused the full opportunity to explore and test her evidence would severely prejudice the accused’s right to full answer and defence. [ 21 ] In R v Catellier [3] , the Court stated: [89] As was stated in Sweet [4] at para. 32 , “Cross-examination under this

section is not limited to the purpose of determining whether the evidence is credible and trustworthy enough to be admitted pursuant to s. 540(7).” It is a discretionary decision to be exercised carefully based on the facts of the case and with a consideration of facilitating the defence’s ability to know the case it needs to meet, particularly as it relates to core witnesses and the possible evidentiary foundation for motions or applications at trial. [ 22 ] Further, in R c M. (P.) [5] , the Court held that in determining whether to allow cross-examination, the judge should consider the accused’s legitimate interest in preparing defence and bringing out the insufficiency and weaknesses in the Crown’s evidence. [ 23 ] R v Beaven [6] of our Court of Appeal also recognized that the ancillary exploratory purpose of defence discovery at a preliminary hearing was alive and well in modern jurisprudence and formed a fundamental tenet of the accused’s right to mount full answer and defence at trial. [ 24 ] Having regard to all of the foregoing, the Court determines that cross-examination of the toxicologist, Tracy Cherlet, in these proceedings, should be permitted and her attendance is ordered accordingly.

V

SECTION 714.1 APPLICATION - TRACY CHERLET [ 25 ] Ms. Cherlet is a toxicologist for the National Forensic Laboratories located in Edmonton, Alberta. The Crown cites several reasons why she should be permitted to testify by video (paraphrased):

a) travel by car from Edmonton to Kindersley is approximately five hours one way, not including delay for border checks;

b) costs incurred for travel encompassing principally car rental, gas and accommodation would approximate $850.00;

c) in-person testimony impacts the day to day laboratory functions already stressed by reason of current COVID-19 adaptation and delay [7] ;

d) her work place has an independent, private video conference room with reliable technological connectivity;

e) public health concern due to the COVID-19 pandemic relating to travel, person to person contact, as well as potential 14 day self- quarantine if exposed to individuals with the virus or exhibiting symptoms. [ 26 ] Defence is opposed for much of the same reasons as related to Constable Estabrooks. However, the strength of this position is diluted considerably when dealing with the technical nature of expert evidence as compared to that of an eye witness. [ 27 ] The reasons for having Ms. Cherlet appear by video for cross-examination are compelling and persuasive and she is hereby permitted to do so. [ 28 ] In

summary, the Court acknowledges that legal custom and tradition must continue to be jealously guarded to protect the integrity of the trial process for all parties. It must also be recognized however that technological advances are being continually improved upon and refined, accelerated by the current pandemic. For the most part, where appropriate, new delivery systems of court processes should be embraced and utilized by the Court and the legal profession alike on a permanent go-forward basis. [8] ________________________ R.D. Jackson, J