R v Navarro, 2023 MBPC 56

CITATION : R v Navarro , 2023 MBPC 56 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) A. Wood ) for the Crown – and – ) ) Jamie Navarro ) R. Campbell ) for the Accused ) ) ) Reasons for Decision ) Delivered November 15, 2023 ALLEN, P.J. [ 1 ] The matter before the court is a Notice of Motion by the Crown for an order that the witness Georg Schwab be permitted to testify at the trial of the respondent by use of Microsoft Teams video conferencing. Requests of this nature are governed by

section 714.1 of the Criminal Code , which reads: Audioconference and videoconference — witness in Canada A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness were to appear in person; (

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 audioconference. [ 2 ] As stated by the Nova Scotia Court of Appeal in R v SDL , 2017 NSCA 58 , an application to have evidence given under

section 714.1 should be based on a proper evidentiary foundation, typically an affidavit which is subject to cross-examination (see para 32). [ 3 ] The affidavit filed by the Crown in this matter, by Jamie Mattis of the Crown’s office, is very brief. It says only that the witness Georg Schwab lives outside of Manitoba and has access to a computer and a private room. [ 4 ] This affidavit does not provide an evidentiary basis upon which the application can be justified and is not the best practice available.

In any event, I am prepared to adjudicate this matter on the evidence provided in the submissions made by counsel. [ 5 ] The Crown in its submission at the hearing of the motion and in its Brief, stated that Mr. Schwab lives in Alberta, he is employed on a full-time basis and he assists in providing caregiving to a nephew. [ 6 ] The Crown said that the costs involved as to bringing this witness to Manitoba to testify would be somewhere between $900 and $950.

The Crown indicated that the witness is expected to testify as to observations he made which are relevant to the prosecution but do not relate to identification of the accused because that has been agreed to. [ 7 ] Counsel for Mr. Navarro says that Mr. Schwab is the key witness to the case against the accused. Counsel also submits that Mr. Schwab’s credibility will be in question as he has made three statements and there are significant differences in each statement. [ 8 ] Of the seven considerations listed in

section 714.1 , there is little dispute in this matter as to several of these factors. It is clear that the witness would have to travel to come to Winnipeg to testify. It is clear that would be inconvenient as he is employed. It is also accepted that there would be costs as detailed by the Crown in terms of facilitating Mr. Schwab attending court. Defence also did not

raise a concern as to the suitability of the location suggested as to the witness being connected to Microsoft Teams from a computer in a room in his residence. Further, neither party disputed that the charges Mr. Navarro faces are serious, with serious potential consequences. [ 9 ] Where the parties differ is as to: (

c) the nature of the witness' anticipated evidence; (

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

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 audioconference. [ 10 ] Looking firstly at the nature of the anticipated evidence. The defence says that the witness gave a statement to police on the day of the incident, another statement taken perhaps two weeks later and then further “fleshing out” of the statement in recent days. Defence says that at least one of the additions to the statement go to an essential element of the charge.

The Crown disputes that the statements have changed but maintains that the second and third installments added detail to the original. [ 11 ] The defence maintains that Mr. Schwab is the key witness to the trial while the Crown says that he is one of three witnesses, the absence of any of them would not scuttle the prosecution. [ 12 ] It is impossible on the scant evidence on this Motion to determine between the above noted opposing views as to the importance of Mr. Schwab’s evidence.

However, it is notable in my opinion, that this is a witness who has on three separate occasions provided observations about the incident before the court. If, as stated by the defence, there are crucial differences or omissions in one or more of these statements and if as stated by the defence, the case rests on this witness, then Mr. Schwab’s evidence is of considerable importance in this case.

On the other hand, even if all that has happened is that the witness has added more information on his second and third contacts with police, then in my opinion that is nevertheless potential fodder for the questioning of his credibility. [ 13 ] Based on what is before me, I am satisfied that Mr.

Schwab’s evidence is important, and his testimony will be of significance, not only to the Crown’s case but to the defence and its ability to question the credibility of the evidence. [ 14 ] Looking now at the accused’s right to a fair and public hearing and any potential prejudice. [ 15 ] In the R v Walsh case ( 2023 MBPC 2 ), Judge Krahn quoted R v Ozorka , 2018 ABPC 162 , which said (at para 14): What is clear from the jurisprudence is that the more significant the nature of the evidence, and the greater the extent to which credibility of the witness is in issue, the more compelling the countervailing considerations must be on a successful s. 714.1 application. [ 16 ] Judge Krahn followed that quote by saying the following ( Walsh , at para 40 ): In an analogous way, I find in this case where the charges are less serious, but the cost and time commitment to return a witness to testify are significant, and a video appearance allows for proper testing of the witness’s evidence, this factor is in favour of a video appearance. [ 17 ] It is notable that in the Walsh case the accused was charged with shoplifting.

A charge that is obviously far less serious than the charges facing Mr. Navarro. [ 18 ] In this case, there is not a significant impediment to the witness returning to Winnipeg to testify. It would clearly be inconvenient, but inconvenience should not be the standard upon which these matters are adjudicated.

There are costs to the system, but those costs must be looked at in light of all the other factors listed in the legislation. [ 19 ] It is clear from cases that have gone before and from a common-sense reading of the wording of the section, that all of the seven factors listed should be looked at as a whole, weighed, and an adjudication should be made as to what “would be appropriate having regard to all the circumstances” ( Criminal Code , at

section 714.1 ). [ 20 ] I accept counsel’s submission that there is value in a cross-examiner being in the same room as the person being questioned. I believe that it is a best-case scenario that, particularly in cases where the witness’ credibility will be in issue, that examination be face to face. No accused, including Mr. Navarro, is entitled to a perfect trial, and the best-case scenario may not always be the most reasonable situation.

However, I do believe there is potential for prejudice to the accused’s right to a fair trial that can result from the significant qualitative difference between live questioning and electronic questioning. [ 21 ] In this case, the nature of the evidence expected from the witness, its significance to the trial, the issue of the witness’ credibility and the serious nature of the charges before the court, outweigh both the inconvenience to the witness and the cost to bring him to Winnipeg. [ 22 ] Accordingly, I am denying the Motion before the court. Original signed by Judge Allen

H. L. ALLEN, P.J.