R. v. Rich, 2020 NLSC 39

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Rich , 2020 NLSC 39 Date : March 4, 2020 Docket : 201908G0101 Her Majesty The Queen v. Nigel Rich Before: Chief Justice Raymond P. Whalen Reasons for Judgment Given Orally Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: March 2-3, 2020 Date of Oral Judgment: March 3, 2020 Appearances: Dana E. Sullivan Appearing on behalf of the Crown Jonathan D. Regan Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Adeagbo , 2017 NLTD(G) 156; R. v. Hoyles , 2018 NLCA 46 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Whalen, C.J. : INTRODUCTION [ 1 ] The Crown applies pursuant to

section 486.2(2) of the Criminal Code, R.S.C. 1985, c. C-46 to allow Darren Penunsi, the alleged victim in this matter, to testify outside the courtroom via closed circuit television (“CCTV”) and further pursuant to

section 486.1(2) to have a support person present with Mr. Penunsi during his testimony. criminal code provisions [ 2 ]

Section 486.1(2) provides for witnesses to have a support person close by when they testify: In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness' choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. [ 3 ]

Section 486.1(3) sets out the factors for consideration in making such an order: In determining whether to make an order under subsection (2), the judge or justice shall consider (

a) the age of the witness; (

b) the witness' mental or physical disabilities, if any; (

c) the nature of the offence; (

d) the nature of any relationship between the witness and the accused; (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (

g) any other factor that the judge or justice considers relevant. [ 4 ]

Section 486.2(2) provides for witnesses to testify outside of the courtroom: [I]n any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of 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 if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. [ 5 ]

Section 486.2(3) sets out the factors for consideration in making a

section 486.2(2) order:

In determining whether to make an order under subsection (2), the judge or justice shall consider (

a) the age of the witness; (

b) the witness' mental or physical disabilities, if any; (

c) the nature of the offence; (

d) the nature of any relationship between the witness and the accused; (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (f.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence; (

g) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (

h) any other factor that the judge or justice considers relevant. analysis [ 6 ] The Crown grounds its Applications on submissions put forward at Appendix “A” to its Applications which, inter alia , includes at paragraphs 2-5 of its Application: 2. The offences were committed against Darren Penunsi. Mr. Penunsi and Mr. Rich grew up together in the same small town of Natuashish, Labrador. 3. In a statement to police dated August 16, 2018 Darren Penunsi stated that in the past Nigel would pick on him or bully him. 4. Darren Penunsi has advised the crown and police that he is afraid of Nigel Rich.

He has panic attacks and thinks it would be easier for him to testify and give a full account of what happened if he was not in the same room with the accused and did not have to see him. 5. Mr. Penunsi also thinks it would be easier to testify if he had someone beside him in the room for support and is agreeable to having Mary Saunders from Victim Services be his support person. Ms. Sanders knows nothing about the file, nor does she speak Innu, and is independent to the proceedings. [ 7 ] Mr.

Penunsi was available for cross-examination on the facts and information provided in the Application. [ 8 ] Clearly the principled basis for sections 486.2(2) and 486.1(2) is an effort to accommodate the truth seeking function of the Court while at the same time ensuring the fairness of the trial. [ 9 ] While referring to the decision in R. v. Adeagbo , 2017 NLTD(G) 156, Justice Hoegg of the Court of Appeal in R. v. Hoyles , 2018 NLCA 46 at paragraph 10 stated with obvious agreement: 10. … He [the trial judge] concluded that

section 486.1(2) and 486.2 (2) , being discretionary rather than mandatory, require evidence which establishes, on the balance of probabilities, that the orders sought would facilitate the giving of a full and candid account by the witness of the facts complained of or would otherwise be in the interest of the proper administration of justice.

[10] At paragraph 11 the Court continues: 11. … While a judge's exercise of discretion must be properly exercised, and must have some proper basis, it can be properlyexercised on the basis of the record before him or her and submissions made, as Goodridge C.J.N.F. stated at paragraph 42 of R. v.Merdsoy (1994), (NL CA), 121 Nfld. & P.E.I.R. 181, 91 C.C.C. (3d) 517 (Nfld. C.A.): The exercise of discretion is generally not attended by extended arguments or evidence. An application is made and the reasons for it areexpressed; it may be opposed and the reasons for opposition are expressed.

Knowledge of things arising out of the trial process whichmust be obvious to the trial judge may be presumed. This is not to say that formal evidence is never necessary, or that it is not a good idea. Rather, it is to say that trial judges make properdiscretionary rulings day in and day out in the absence of formal evidence. [11]

Section 486.2(3), while not exhaustive, outlines the factors the Court shall consider in a

section 486.2(2) application. In thepresent Application: (

i) The nature of the offence and the degree of violence exhibited are “matters of record or patently obvious fromobservation” (Hoyles at paragraph 11). The Accused stands charged with: • attempted murder • aggravated assault • assault with a weapon • uttering threats The medical records and photographs of Mr. Penunsi on the night of the alleged assault display the results of a brutal attack. (ii) The alleged offences occurred in Natuashish, Labrador, a small isolated northern community. The Accusedand Mr. Penunsi grew up together in this small community. Mr.

Penunsi indicated that in the past the Accused picked on him andbullied him and that he is afraid of the Accused. Mr. Penunsi suffers from panic attacks. It is clear from the record that the Crown hashad difficulty getting Mr. Penunsi to attend Court and testify, and submits that it is because Mr. Penunsi fears the Accused, and for hissafety. (iii) It is not unreasonable for a victim of a brutal attack as alleged and depicted in the evidence to be intimidated inthe presence of the Accused who they say committed the attack.

Nor would it be unreasonable for a victim in a small isolatedcommunity to fear retaliation. (iv) It is in society’s interest to encourage witnesses who fear reprisal to none-the-less participate in the criminaljustice process. [12] The above i-iv are also applicable factors for the Court’s consideration in the

section 486.1(2) Application. conclusion [13] The Crown has met the onus of proving on a balance of probabilities that the witness would be unable to give full, candidaccount if forced to testify in the same room as the Accused. [14] Further, it is in the interest of the proper administration of justice that these Applications be granted to reinforce the messagethat complainants and victims in such cases as these before the Court can be accommodated in the proper circumstances so as tominimize the trauma they will suffer by having to testify.

ORDER [15] The Crown’s Applications are granted. [16] The witness shall be permitted to testify outside the courtroom by means of CCTV and with the aid of a support person. _____________________________ Raymond P. Whalen Chief Justice