R. v. G.R., 2022 NUCJ 32

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. G.R., 2022 NUCJ 32 Date: 20220826 Docket: 18-18-191 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: G.R. __________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): Counsel (Accused): S. Stakiw C. Emberley Location Heard: Date Heard: Iqaluit, Nunavut August 11, 2022 Matters: Application pursuant to Criminal Code of Canada, RSC 1985, c C-46, ss. 714.1 to allow remote appearance by witness. REASONS FOR DECISION (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Restriction on Publication:

By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] This is an application by the Crown pursuant to s. 714.1 of the Criminal Code to have witnesses appear by videoconference at an upcoming trial. II.

BACKGROUND [ 2 ] G.R., a youth, is charged with murder. His trial is set to commence in three weeks. Counsel have worked cooperatively and have reduced the number of witnesses who will be called. They have worked together on an Agreed Statement of Facts. As a result, while the Crown initially expected to call between six to nine witnesses, they can now confirm that they will be calling six witnesses. Three of these witnesses will appear in person. Two of the witnesses, both expert witnesses, will be appearing remotely, with the consent of the Defence.

[ 3 ] The seven witnesses who do not live in Nunavut are either police officers or expert witnesses. The Crown would like six of these witnesses to testify by videoconference. The Defence agrees to having five of them testify by videoconference. The witness whose mode of appearing is contentious is that of the forensic pathologist. III. SUBMISSIONS A. Nature of Evidence on the Application [ 4 ] The Crown’s application is supported by an affidavit sworn by a police officer. The officer attests to matters told to him by Crown counsel who is arguing the application.

The officer has not spoken to the proposed witness and has little to no personal knowledge of any of the matters in the affidavit. The affidavit is substantially double hearsay. It is not clear why the proposed witness did not swear an affidavit. [ 5 ] I appreciate that when the factual basis underpinning an application is not in dispute it is inviting to get the information before the Court in the most expedient manner possible, however, I caution counsel that if there is ever a dispute regarding the information, such an affidavit would be given little, if any, weight. B.

Section 714.1 [ 6 ]

Section 714.1 of the Criminal Code provides that a court may order that a witness testify via audioconference or videoconference (hereinafter jointly referred to as “remote appearances”), if the court is of 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. [ 7 ] 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. [ 8 ] I also note that the list of factors enumerated in s.714.1 is not exhaustive.

There may be other relevant factors for the court to consider. C. Burden [ 9 ] The presumption for witnesses is in-person attendance. A party wishing to have a witness appear remotely bears the burden of

persuading the Court that a remote appearance is appropriate. [ 10 ] I mention this because these applications are most often brought by the Crown. They are brought at a stage of the proceedings where the nature of the defence, the nature of the cross-examination, or the nature of the witnesses that might be called by the Defence are unknown.

With limited exceptions, Defence is not required to disclose such information. [ 11 ] There can be a tendency to expect the Defence to explain why they require the witness to appear in-person; to show how the trial rights of the accused will be negatively impacted by a remote appearance by the witness. I caution myself against unconsciously shifting the burden at a stage of the proceedings where the nature of the defence is unknown. D. Locations and Circumstances of the Witness [ 12 ] The proposed witness is the Chief Medical Examiner for Manitoba and he resides in Winnipeg.

The scheduling of this trial has gone through some uncertainty however, for quite some time it has been the Crown’s intention to call the pathologist during the week of September 12 -16, 2022. The witness confirmed his availability for this week back in July of 2022. [ 13 ] Concessions by Defence counsel and agreements between counsel have resulted in the anticipated length for the crowns case being less than initially anticipated.

Crown are of the view that they can complete their case in the first week, that being September 6 to 10th, 2022. [ 14 ] The witness is attending a conference in Switzerland during that week. He will be out of the country from September 1 st to 10 th , 2022. He has provided the Court with a letter indicating that he could appear remotely from Switzerland between September 6 th to 9 th , 2022, at times that do not conflict with his attendance at the conference.

He will return to Canada on September 10 th , so he is still available to testify during the week of September 12 th to 16 th , 2022. [ 15 ] The Crown submits that calling the witness remotely during the first week of the trial will streamline the proceedings and will ensure an efficient use of Court resources. [ 16 ] Further, even if the witness testifies during the second week, Crown submits that the time necessary to travel to and from Iqaluit for trial imposes an undue burden on a busy professional who, the Court can accept, has a demanding schedule. [ 17 ] When we speak of court and judicial resources, we must remember that the purpose of the Court and its judges is to hear and decide cases.

This case has been assigned a judge who is available solely for this matter for the full two weeks. The priority is to ensure that this accused has a full and fair hearing. There is no jury in this matter who would be inconvenienced by a delay in the proceedings of a day or two so that the witness can testify during the second week of the trial. [ 18 ] With respect to the circumstances of the witness, this application does not turn on the personal circumstances of the witness in the sense that the witness has personal issues which limit his ability to travel.

Much of the jurisprudence speaks to serious health issues of the witness or financial circumstances that would be negatively impacted to a serious degree should the witness have to travel. No such circumstances are present in this case. [ 19 ] This witness is a medical examiner whose job it is to perform autopsies and report on the cause and manner of death. One of the responsibilities of the position is to testify in court proceedings, public inquiries, and other such proceedings. While I do not have any evidence that the witness’

schedule is such that the travel time required to testify in person would place a burden on him, I acknowledge that it is likely that he may have to rearrange his

schedule to accommodate the travel. I do not accept that a personal attendance would be disruptive to the institution of the office of the medical examiner, as suggested. [ 20 ] There is nothing in the location or circumstances of the witness that favours a remote appearance.

E. Costs [ 21 ] There are costs associated with any witness having to travel. In Nunavut, it is not unusual for witnesses to have to travel, as people move between communities with frequency. Also, some types of witnesses, such as those who relocate from the south and return to the south after a period of time, will often have to travel to testify. These costs will tend to be high simply because of the cost of northern travel. Costs are but one factor to consider. F. The Nature of the Anticipated Evidence [ 22 ] As stated in R. v.

Ikalukjuak 2022 NUCJ 17 (paragraphs 6-8 ), and alluded to earlier in this decision, this factor can be a difficult one for the Court to consider as the Court does not know the case or the nature of the defence. [ 23 ] Very often, the evidence of expert witnesses will be amenable to a remote appearance, as the scope of the evidence is known and the evidence is not contested.

Indeed, the Defence in this matter has agreed to the remote appearance of two expert witnesses. [ 24 ] The Crown submits that the Defence has received a report from the witness, the Defence has the opportunity to speak with the witness outside of the court proceedings to ask questions, and the witness testified via videoconference at a preliminary hearing of a co- accused and a transcript from those proceedings is available.

Essentially, the Crown’s position is that there has been ample disclosure of the witness’ evidence such that personal attendance is not required. [ 25 ] It is often the case that expert witnesses such as pathologists will be permitted to testify remotely. Their evidence is usually not contentious. However, this is not always so.

For example, when there are alternate theories as to the manner of death, it may be important for the Defence to be able to put those theories to the witness in a visual form, best done in-person. [ 26 ] In this matter, I am advised that the Defence may want to present various reference materials to the witness, such as textbooks. This is not the type of cross-examination that lends itself to a remote appearance. G. Suitability of Location [ 27 ] The witness is accustomed to testifying in court and understands the nature of court proceedings.

There are no concerns regarding the suitability of the location he would testify from if he were to testify remotely during the second week of the trial. H. Right of Accused to Fair and Public Hearing [ 28 ] The trial is taking place in Iqaluit. The courtrooms are equipped with large screens so that a witness testifying remotely is readily visible to the various participants as well as the public. [ 29 ] There are always lingering concerns about the reliability of the technology however, should there be issues there are IT staff in Iqaluit able to respond quickly. I.

Nature and Seriousness of the Offence [ 30 ] The accused is charged with murder, the most serious of offences. Despite the seriousness of the charge counsel have reached agreement on many issues. Under such circumstances the Court should be cautious about questioning the position of the Defence that

personal attendance of the witness is required. IV. CONCLUSION [ 31 ] I am not persuaded that it is appropriate for the witness to appear remotely. The application is denied. Dated at the City of Iqaluit this 26th day of August, 2022 ___________________ Justice S. Cooper Nunavut Court of Justice