R. v. Lawrence, 2021 NLSC 7

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Lawrence , 2021 NLSC 7 Date : January 13, 2021 Docket : 201904G0198 Her Majesty The Queen v. Henry C. Lawrence Restriction on Publication: By Court Order made under

section 486.31 of the Criminal Code , information that may identify the person described in this judgment as the complainant shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 17, 2020

Summary: The accused stands charged with gross indecency and sexual assault, arising from incidents alleged to have occurred between 1983 and 1986. On application by the Crown under s. 714.1 of the Criminal Code , the complainant was permitted to testify at trial by way of videoconference from the Provincial Court in Dartmouth, NS.

Appearances: Susan H. Gallant, Q.C. Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Rutaihwa , 2020 ONCJ 470 ; R. v. Ochoa , 2020 ONCJ 432 ; R. v. Brake , 2019 CarswellNfld 109 , [2019] N.J. No. 89 (Prov. Ct.) ; R. v. Hoyles , 2018 NLCA 46 ; R. v. Welyhorski , 2 016 NLTD(G) 55; R. v. S.D.L , 2017 NSCA 58 ; R. v. Metcalfe , 2018 ONSC 4925 ; R. v. Turner , 2002 BCSC 1135 ; R. v. Zamora , 2020 BCSC 1259 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] The accused, Henry Lawrence, is charged with gross indecency, contrary to s. 157 of the Criminal Code , R.S.C. 1985, c. C-46 and two counts of sexual assault, contrary to s. 271 of the Criminal Code . The alleged offences are historical in nature, dating from 1983 – 1986, at a time when the complainant, L.W., was under the age of 18. [ 2 ] Mr. Lawrence’s trial was originally scheduled before a judge and jury in June 2020, but postponed due to the COVID-19 pandemic.

He has since re-elected and has a judge alone trial scheduled for 15-19 February 2021, in Corner Brook, NL. [ 3 ] L.W. lives with his spouse in a single family dwelling in Eastern Passage, Nova Scotia, and wishes to testify at Mr. Lawrence’s trial via videoconference from that location. Accordingly, the Crown has now applied pursuant to s. 714.1 of the Criminal Code for an Order permitting him to testify from his home. Alternatively, the Crown seeks an Order permitting L.W. to testify by way of videoconference from the Provincial Court, in Dartmouth, NS.

Section 714.1 [ 4 ]

Section 714.1 of the Criminal Code reads, as follows: 714.1 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 personally; (

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 theevidence to be given by audioconference. [5] The decision whether or not to permit testimony by way of videoconference is thus discretionary, having regard to “all thecircumstances,” including, but not limited to those enumerated.

As the applicant, the onus is on the Crown to establish that L.W.’stestimony by videoconference is “appropriate.” Videoconference is defined in s. 2 of the Criminal Code as a means oftelecommunication that allows for “simultaneous visual and oral communication in a proceeding.” [6] With regard to the application of s. 714.1, in general I am guided by the following passage from R. v. Rutaihwa, 2020 ONCJ470, as quoted with approval in R. v. Ochoa, 2020 ONCJ 432 (at para. 14): 14 … 13.

In my view, the application of s. 714.1 should be informed by the principle expressed by the Supreme Court of Canada that theevidence of a witness in a criminal proceeding must be given in a way that is most favourable to eliciting the truth so long as it does notimpair the accused's right to make a full defence and a fair trial: R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475, at paras.14, 20. Analysis The Videoconference Technology [7] The technology proposed is the video platform provided through Memorial University of Newfoundland (MUN)Conferencing.

It is the platform adopted by this Court in response to the COVID-19 pandemic and, indeed, was the means employed forthe hearing of the within application. In particular, counsel appeared by video from a courtroom in Corner Brook, NL, the complainantappeared and was cross-examined while at the Provincial Court in Dartmouth, NS and I appeared from my chambers. After an initialdelay on the Corner Brook end, the application proceeded seamlessly. Both the sound and video quality was excellent. Unlike thecircumstance in R. v. Brake, 2019 CarswellNfld 109, [2019] N.J. No. 89 (Prov.

Ct.), the Crown has confirmed by way of affidavit thatthis technology is available for the time of the trial.[1] [8] Given the Court’s positive experience with MUN Conferencing, as confirmed on the hearing of this application, I am satisfiedthat the appearance of the complainant by videoconference will not impact negatively on the ability to see, hear, and comprehend hisevidence. The Location and Personal Circumstances of the Witness [9] L.W. is presently 51 years old and has lived in Nova Scotia for over 30 years. He was a resident of that province at the timethe allegations were made against Mr. Lawrence.

He works fulltime for a pharmaceutical company and if required to testify in thisprovince would have to take vacation time from work to do so. At a minimum he would incur the loss of four days of employmentincome, or annual leave. However, if the current COVID-19 travel restriction remains in place, the time from work will be significant,as he will be required to isolate for 14 days upon arrival in this province before testifying. [10] L.W. testified that he suffers from an anxiety disorder and other health issues for which he receives medication andcounselling.

While he acknowledged that he has learned strategies for coping with an anxiety attack, these are not always successful as,in his words, each anxiety attack is different. He testified that if required to travel, his anxiety would be heightened by the risk ofcontracting COVID-19. [11] In his affidavit filed in support of the application, L.W. deposed that he has recently been a patient of Dr. H. Conter and Eric L.Ross, Registered Counselling Therapist. [12] Attached to his affidavit is a report from Dr.

Conter describing L.W.’s diagnosis as significant Major Affective DisorderDepression and significant Generalized Anxiety Disorder, for which L.W. receives medication. In several clinical update reports, alsoattached to L.W.’s affidavit, Eric Ross confirms that he has been counselling L.W. for anxiety since 2018 and continues to do so. [13] The defence objected to these reports as hearsay, as neither Dr. Conter nor Mr. Ross were called to testify. The substantivecontent of both reports was, however, confirmed by L.W. in his affidavit and further upon cross-examination.

On a principledapplication of hearsay rule any reliability concerns regarding the accuracy of these reports is nil (see R. v. Hoyles, 2018 NLCA 46). I amthus prepared to admit them, filed as they were as part of L.W.’s affidavit. The Costs that would be incurred if the Witness were to Appear Personally [14] Cost is not determinative, of course, but is nevertheless a factor to be considered (R. v. Welyhorski, 2016 NLTD(G) 55). [15] The Crown estimates the cost for L.W.’s attendance at trial to be $2,000. This includes airfare from Halifax to Deer Lake,ground transportation, hotel and meals for four days.

However, if the current COVID-19 restrictions in this province remain in place, thecost will be significantly higher. [16] If required to isolate, L.W. would stay in a hotel for an additional 14 days. Having made inquiries, the Crown’s estimate of theadditional cost of having L.W. testify in Corner Brook would be $3,100, calculated as hotel at $150 per night for 14 nights, plus $1,000

in meals and car rental. Of course, this does not include the cost to L.W. personally in taking time from his employment. The Nature of the Witness’ Anticipated Evidence [ 17 ] As the complainant, L.W.’s testimony will undoubtedly be important to the Crown’s case. The charges are historical, dating back to events that are alleged to have occurred over 30 years ago.

While credibility is often an issue in criminal cases, I can reasonably anticipate that the credibility of L.W.’s testimony will be at the fore in this case. [ 18 ] There is case law from Nova Scotia, relied upon by the defence, to the effect that where credibility is at stake a s. 714.1 Order should not be issued unless there are “exceptional circumstances” that personally impact the proposed witness, and where the witness is the complainant, these circumstances must be even more compelling ( R. v.

S.D.L , 2017 NSCA 58 , at para. 32 ). [ 19 ] With due respect, while the nature of the witness’ evidence is a factor to be considered, s. 714.1 does not single out complainants for different treatment. Rather, I agree with the comments of Faieta, J. in R. v.

Metcalfe , 2018 ONSC 4925 , that if it had been Parliament’s intentions to create “a presumption that barring exceptional circumstances a witness whose credibility is at issue must testify at trial in the physical presence of the accused and the trier of fact… it would have said so” (para. 12) ( see also Ochoa ). [ 20 ] The Court must also be careful not to overstate the role of personal appearance where proper videoconference technology is available.

In Welyhorski the complainant in an historical sexual assault case, dating between 1967 and 1976, was permitted to testify by video link from the Provincial Courthouse in Halifax, NS. In granting the Crown’s application Thompson, J. quoted with approval from R. v. Turner , 2002 BCSC 1135 at paragraphs 11 and 12 (at paragraph 14): 11. While it cannot be said that the virtual presence of a witness in the courtroom is equivalent to the actual presence, that, with respect, does not appear to me to be the only question.

As I suggested to counsel during submissions, Parliament must have intended that the court receive such evidence except where it is demonstrably contrary to the principles of fundamental justice. In enacting the section, Parliament must have considered the impact of technology generally on the ability to conduct cross-examination and the ability of the court to assess credibility. 12.

As to the assessment of credibility, sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying.

In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err. [ 21 ] The fact that the witness is a complainant is a factor to be considered, as the nature of the witness’ evidence is a factor, but there is no special test under s. 714.1 for complainants as opposed to other witnesses.

The Suitability of the Location from which the Witness will give Evidence [ 22 ] L.W. testified that he lives with his spouse in their single family home in Eastern Passage, NS and there is a room within the home where he could present his evidence in private.

At the same time, L.W. candidly acknowledged that he was quite comfortable in testifying from the courtroom in Dartmouth, NS, describing it as “quite nice” and volunteered that the computer at the courtroom has a “bigger screen than I have at home.” [ 23 ] I accept that s. 714.1 does not specify from where the witness may testify by videoconference and that under appropriate circumstances and with appropriate safeguards that location may be the witness’ own home (see Ochoa ). [ 24 ] However, without discounting the privacy offered by L.W.’s home, there are nevertheless several advantages to be offered by the Provincial Court location: • It is a secure location from which the accused and public can have an additional measure of confidence that L.W.’s testimony will not be influenced by outside factors. • L.W.’s testimony from a courtroom adds an additional measure of solemnity to the occasion. • Court staff are available to assist with exhibits and technological problems should they arise. • Other technological aids such as photocopiers and fax machines are available at the courthouse.

There was no evidence that these are available at L.W.’s residence. • L.W. candidly testified that he was comfortable in testifying from this location. • The size of the computer screen is larger than that available to L.W. at home. • The Provincial Court in Dartmouth is within easy access by ground transportation from the complainant’s residence.

The Accused’s Right to a Fair and Public Hearing [ 25 ] Given the quality of the audio and video experienced on the within application, I am satisfied that there will be no impairment of L.W.’s direct testimony, the defence’s ability to cross-examine, nor my ability to make a proper evaluation of the evidence. I am thus satisfied that L.W.’s testimony by way of that technology will not impair Mr. Lawrence’s ability to make full answer and defence to the charges against him.

Subject to COVID-19 restrictions, the trial proceedings will be in open court, such that members of the public may watch and listen to the complainant’s testimony as if he were present. The open court principle is thus preserved.

The Nature and Seriousness of the Offence [ 26 ] It is accepted that the charges against Mr. Lawrence are serious. However, Parliament has not seen fit to exclude any particular offence from the ambient of s. 714.1. The seriousness of the charges, taken in isolation, would not convince me to deny the application. COVID-19 [ 27 ] The existence of the COVID-19 pandemic and, in particular, the risk posed to those who travel continues to be a relevant consideration in the application of s. 714.1.

I am prepared to take judicial notice of the fact that travel is discouraged by public health officials in order to prevent spread of the virus. (see R. v. Zamora , 2020 BCSC 1259 , for example). Disposition [ 28 ] Having due regard to the foregoing considerations, I am prepared to grant the Crown’s application to have L.W. testify by videoconference from the Provincial Court in Dartmouth, NS, but not from his personal residence in Eastern Passage, NS.

That said, this Order comes with the following important qualifications: • A court officer is to be present and available at all times during L.W.’s testimony to ensure the integrity of the process and to provide assistance with any exhibits, and render assistance in the event of any technological problems; • In the event of any disruption in the audio or video quality, the trial judge retains the express authority under s. 714.41 of the Criminal Code [2] to cease this mode of testifying and order L.W. to appear in person; • During the hearing of the within application L.W. wore a mask, which not only had the effect of muffling his voice somewhat, but covered much of his face.

Should a mask be worn during L.W.’s testimony at trial, he is to be fitted with a clear plastic shield for this purpose. It is the Crown’s responsibility to ensure that this is provided, if necessary; • The videoconference feed is to be oriented in such a way that at all times L.W.’s hands are visible; and • L.W. is to have available with him during his testimony a copy of the Preliminary Inquiry transcript and any statements provided by him to police. He is not to refer to this material during his testimony unless directed to do so by counsel or the Court. _____________________________ Donald H. Burrage Justice