R. v. Phillips, 2019 BCPC 67

Citation: R. v. Phillips 2019 BCPC 67 Date: 20190314 File No: 20671-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN ALLAN PHILLIPS ORAL RULING OF THE HONOURABLE JUDGE J.P. MacCARTHY RULING ON CROWN APPLICATION RE TESTIMONIAL ACCOMMODATION Counsel for the Crown: P. Cheeseman Counsel for the Accused: D. Marshall Place of Hearing: Colwood , B.C. Date of Hearing: March 14, 2019 Date of Judgment: March 14, 2019 Introduction [ 1 ] THE COURT: The accused, Nathan Allan Phillips, is charged under Information 20671-1 with two counts. On Count 1, there is an allegation that Mr.

Phillips committed the assault of Zhong Pan and in the course of doing so, did cause bodily harm to him. That is an offence contrary to s. 267 (

b) of the Criminal Code . On Count 2, the allegation is that Mr. Phillips, in the course of committing the

assault on Mr. Pan, did carry, use, or threaten to use a weapon or an imitation weapon, being an offence contrary to s. 267 (

a) of the Criminal Code . The allegation is that the weapon named in Count 2 was a commercial construction staple gun. [ 2 ] The Crown has brought an application pursuant to s. 486.2(2) of the Criminal Code . This is what is commonly referred to as a "testimonial accommodation" provision for witnesses. By way of the application, Crown is seeking to have Mr. Pan, the principal witness, testify either behind a screen in the courtroom or by way of close-circuit television. Basis for the Application [ 3 ] In support of the application brought by Crown, I have the victim impact statement of Mr. Pan.

The victim impact statement was completed August 28, 2018 (the “Victim Impact Statement”). The offence being the subject matter of the charges against Mr. Phillips is alleged to have occurred on May 9, 2018. Hence, the Victim Impact Statement was given relatively shortly after the alleged incidents took place. [ 4 ] Also in support of the application are Crown’s submissions. Crown counsel has had recent communication with Mr. Pan. During the course of those discussions, Mr. Pan indicated that he was afraid to testify in court. The basis of that apparently is his fear of Mr. Phillips.

At the time of the alleged incident, Mr. Phillips was the construction supervisor for Mr. Pan and, as a result of what I undertake to be an alleged imbalance of power, Mr. Pan is believed to have been the subject matter of some historical bullying while on the construction site. [ 5 ] Mr. Pan's first language is not English. I understand his first language is Mandarin. Accordingly, it will be necessary to have a Mandarin interpreter present at the trial. [ 6 ] In the Victim Impact Statement, under the heading of "Fears for Security," Mr.

Pan asserts as follows, and I quote [as read in]: It has been several months and I have had to work hard to overcome my fear of seeing Nathan. I used to be triggered even by the sound of a car near my home. I fear that someone or Nathan was coming to get me and my family. I has been only in the past two weeks that I can tolerate the sound of cars outside my home and not have my anxiety triggered.

I am able to forgive Nathan now and not be scared now. [ 7 ] The second portion of the Victim Impact Statement under the heading, "Drawing, Poem, or Letter," (in which the victim is invited to help express the impact that the offence has had on him) reads as follows, and I quote [as read in]: Hey, Nelson! Thank you for making me stronger. I am sorry you are stuck with having to deal with whatever comes of this incident for you. I also feel sorry for your family as this will impact them too. I am wishing and hoping that you have been able to learn and grow from this experience.

I am sure that your children will benefit from this growth as well. I also wish for you to be around your children as for certain they need you in their life. Your presence will allow them to grow to be healthy individuals. I can forgive you for what you did to me but I cannot forgive you for the pain that you brought to my family. Wishing you good luck. [ 8 ] In other portions of the Victim Impact Statement, there is a description of the physical impact of the alleged incident and also indication about the physical and emotional trauma that is alleged to have been suffered by Mr.

Pan as a result of the alleged conduct giving rise to these charges. [ 9 ] I note that no affidavit information has been filed either on behalf of Mr. Pan, or by Crown, in support of this application. Crown does indicate in their submissions that there is likely no issue that the event giving rise to the charges actually did occur. The triable issue will be that of the mens rea or the intention of Mr.

Phillips to commit the two alleged offences. [ 10 ] Defence opposes the application for this testimonial accommodation, and in that regard defence also points to the above noted provisions of the Victim Impact Statement, which defence suggests show that there is little in the way of continuing fear on the part of Mr. Pan as at August 28, 2018, which will serve as a basis for any testimonial accommodation being granted to him. [ 11 ] In response to the defence position, Crown does also note that one of the other contributing factors for Mr.

Pan’s stated fear of testifying is his lack of fluency in English as a first language. Provisions of the Criminal Code [ 12 ] As noted above, Crown has brought on this application pursuant to s. 486.2(2) .

Section 486.2 was amended effective July 22,

Section 486.2 now reads as follows, I quote: 486.2(1) Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such 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, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. Other witnesses

(2) Despite

section 650, 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 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 . [Emphasis added] Application

(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or,before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not beendetermined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place. Factors to be considered

(3) 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 undercovercapacity, 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 nationalsecurity or intelligence; g. society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justiceprocess; and h. any other factor that the judge or justice considers relevant.

Same procedure for determination

(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order undersubsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with thatsubsection. Conditions of exclusion

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unlessarrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuittelevision or otherwise and the accused is permitted to communicate with counsel while watching the testimony. No adverse inference

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2). [13] I note that prior to the amendment in July of 2015, s-s. (2) of s. 486.2 read as follows: Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness orderthat the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused ifthe judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the actscomplained of. [emphasis added] [14] I further note that the previous provisions in s-s. (3) have been expanded by the present wording in s-s. (3) and specifically s-s.(3)(e), (f), and (

g) have been added as factors to be considered. Provisions Relevant to this Case [15] Crown places reliance on the provisions of s-s. (3)(g), namely, "society’s interest in encouraging the reporting of offences andthe participation of victims and witnesses in the criminal justice process" as the basis for their application. I also understand that somereliance may be placed upon the s-s. (

b) which deals with the "witness’ mental or physical disabilities," namely, the fear factor and alsothe nature of any relationship between the witness and the accused as set out in s-s. (d), as well as in s-s. (

e) which is "whether thewitness needs the order for their security or to protect them from intimidation or retaliation." Case Authorities Considered [16] Crown counsel has referred to the decision of R. v. Eakin, [2018] B.C.J. No. 6826; 2018 BCPC 309, a decision of Her HonourJudge Dawn Boblin, of the Provincial Court of British Columbia. In addition, I have had the opportunity of reviewing two furtherdecisions that relate to this particular type of application. The first is the decision of R. v. O'Hare, 2016 BCPC 362 , [2016]B.C.J. No. 2466; 2016 BCPC 362. The other decision is that found in R. v.

Kampos, [2018] B.C.J. No. 3428; 2018 BCSC 1808, adecision of Justice Devlin of our Supreme Court. [17] The three case authorities are situations in which the application for witness accommodation was granted. As is often the casein situations involving these type of applications, the circumstances surrounding the case are of some importance to understand theresult.

R. v. Eakin [ 18 ] The R. v. Eakin decision involved a principal witness who sought to testify behind a screen. In that decision, the court allowed the application. [ 19 ] The factual basis was that the principal witness, a Mr. Nair, was involved in the drug subculture and was alleged to be a subordinate of the accused Eakin. Crown had claimed that the principal witness had been subjected to kidnapping, stabbing, threats, and assaults by Mr. Eakin and by persons associated with Mr. Eakin. The decision in Eakin was that there were good reasons for encouraging the participation of the witness, Mr.

Nair, especially in situations of where the drug subculture exerted considerable pressure on its participants not to participate in the criminal justice system and, accordingly, the courts must do whatever they reasonably and lawfully can do to encourage those persons to participate. [ 20 ] The accused Eakin's concerns about the reliability and credibility of Mr. Nair's evidence and his fears were issues that related to Eakin's guilt or innocence and were matters to be resolved at trial.

In the Eakin matter, the court granted the order and, in doing so, provided a thoughtful analysis of the factors to be considered. R. v. O’Hare [ 21 ] The O'Hare decision similarly was a case in which the application for testimonial accommodation was granted. In that particular case, the charges against Mr. O'Hare were offences contrary to s-s. (3) of s. 372 of the Criminal Code .

That is essentially a charge of without lawful excuse and with intent to harass a person, an accused repeatedly communicates, or causes repeated communications to be made by means of telecommunication. [ 22 ] In that matter, the principal witness sought testimonial accommodation.

There was evidence before the court by way of affidavit of the principal witness which indicated that she suffered from an anxiety disorder and depression and was under medication for that type of disability and, also, there was evidence before the court that the complainant had never actually seen the accused and was fearful that the actual viewing of the accused would cause her an anxiety attack and impact on her overall health. There was also an indication that the complainant in that case had a history of suffering from heart palpations in stressful situations.

Accordingly, in that particular set of circumstances, the order for accommodation was granted on the basis of the evidence and information before the court as it related to the

section s. 486.2(3) factors. [ 23 ] The third decision in R. v. Kampos involved a charge of attempted murder of the 40-year-old complainant who was a stranger to the accused in that particular case. Again, the thoughtful analysis of the learned Supreme Court Justice resulted in the granting of the application for testimonial accommodation. The court found that there was a bona fide fear on the part of the complainant witness for his safety and there was also attending health issues such as pain and stress that would likely be aggravated were he to testify without the screen.

Accordingly, the order was granted. [ 24 ] It is noteworthy that in the three case authorities to which I have referred, there was either affidavit information from the principal witness or an affidavit provided by police officers with respect to the concerns raised by each of the witnesses who was seeking testimonial accommodation. I note that in this case there is not anything in the way of an affidavit provided by Mr. Pan (or any other affidavit material) and reliance has been placed primarily on the Victim Impact Statement.

However, I am mindful, as noted in the Eakin decision, at paragraph 9 that viva voce evidence or an affidavit from the principal witness seeking the accommodation is not necessary. In Eakin the court was presented and able to rely upon the affidavit information of Constable Johnny as the basis of its application.

Analysis [ 25 ] The case authorities that have been referred to in which the orders for testimonial accommodation were granted clearly indicate that the factors being considered by the court in terms of s. 486.2(3) were sufficient in order to grant the testimonial accommodation being sought in each of those cases. In other words Crown met its onus on a balance of probabilities to establish that order should be granted [ 26 ] In the present case, significant reliance is being placed upon both the fear that Mr.

Pan indicates that he still suffers from in terms of testifying and also reliance is placed on the provisions of s-s. (g), that there is "society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process." [ 27 ] However, in the case before me, I must look at what Crown has presented in terms of supporting documentation in this application.

When I review the Victim Impact Statement, I note that it is somewhat dated, being August 28, 2018, and therefore was provided some several months ago and shortly after the offence is alleged to have occurred. The provisions in the Victim Impact Statement that I have previously highlighted indicate that there was fear by Mr. Pan and anxiety.

However, the words that strike me as being important are as follows, and I quote [as read in]: I am able to forgive Nathan now and not be scared now. [ 28 ] The other provisions of the Victim Impact Statement to which I have referred to above also indicate that as early as August 28th, 2018, there has been a measure of recovery by Mr. Pan when he expresses some thanks to the accused for making him stronger. [ 29 ] There is no medical evidence before me of a continuing anxiety disorder. There is no updated information on Mr. Pan's resulting conditions which were suffered following the alleged incidences.

There is nothing that indicates that the form of fear that Mr. Pan may be suffering from reaches the type of distress, fear, physical or security problems which were apparent in the Eakin , O'Hare , and Kampos situations. [ 30 ] In the O'Hare decision, it was noted as follows at paragraphs 30 and 31 which reads as follows, starting at paragraph 30: [30] Of particular concern is the complainant’s anxiety disorder, and specifically the facts that the complainant apparently is reliant

upon Ativan to help keep her calm, that she has had to address those anxiety issues through counselling, and she is feeling anxious aboutthe upcoming court date. [31] That is not to say that all witnesses who are anxious about testifying would necessarily be accommodated by the granting of anorder of this nature. However, anxiety is a recognized disorder from which this complainant apparently suffers; in cases of that disorder,the condition goes beyond simple nervousness or anxiousness about testifying. [31] I have also given regard to the various factors that are set out in s-s. (3) of 486.2.

What I find to be relevant in coming to mydecision is s-s. (b), "the witness’ mental or physical disabilities, if any." In that regard, there is an indication that there was some fear aslate as when the Victim Impact Statement was provided. The recent disclosure by the principal witness to Crown counsel about his fearof testifying is relevant, but it is certainly something in the nature of a bald statement which does not have any other supporting reasonsor evidence. [32] The second relevant factor is that of the nature of the offence.

Clearly, this is an offence where violence was allegedly used andallegedly there was a resulting bodily harm sustained Mr. Pan. [33] Subsection (

d) is relevant because of the nature of the relationship between the principal witness and the accused. Theirrelationship was that of a workplace supervisor and of an underling, which is of importance, but on its own in these circumstances notdeterminative. [34] Subsection (

e) requires the court to consider whether the witness needs the order for their security or protection fromintimidation or retaliation.

I am of the view that here there is nothing to indicate that this is of a great concern other than theapprehension on the part of the principal witness to provide the testimonial information. [35] Then I must consider s-s. (g), "society’s interest in encouraging the reporting of offences and the participation of victims andwitnesses in the criminal justice process." That is, of course, a very important consideration but in my view it is not a significant factor inthis case. [36] I must also take into account that the general rule is that of the accused being able to face their accuser.

That particular conceptwas canvassed by Judge Boblin in the Eakin decision. At paragraph 10, Judge Boblin says as follows: [10] The submission of a constitutional right to face and hear your accuser in a courtroom and the further suggestion one must weighthat right against testimonial accommodation has been answered in R. v. J.Z.S., 2008 BCCA 401, wherein Justice Smith stated atparagraphs 33 and 34, as follows. [11] Paragraph 33: L'Heureux-Dubé J. then framed the issue in Levogiannis as "simply put, whether a witness's obstructed view of an accused, infringes therights of such accused under s. 7 or 11(

d) of the Charter. [12] Paragraph 34:

Section 7 requires a balancing of competing interests. An accused's right to a fair trial, including the right to make full answer anddefence, must be balanced against the broader societal interest in having offences prosecuted. L'Heureux-Dubé J. rejected the argumentthat in order to make full answer and defence an accused must be able to confront his accuser. [13] As stated by MacDonald J.A. (as he then was), for the court in R. v. R.(M.E.) (1989), (NS CA), 49 C.C.C.(3d) 475, at 484: The right to face one's accusers is not in this day and age to be taken in the literal sense.

In my opinion, it is simply the right of anaccused person to be present in court, to hear the case against him and to make answer and defence to it. [37] Having regard for this authoritative guidance, I must then consider whether or not this explanation of the concept of facingone’s accuser is determinative of the issue of granting testimonial accommodation in this particular set of circumstances. I find that it ishelpful but not determinative.

Since this is not a statutorily presumptive situation for the granting of witness accommodation ascontemplated by s. 486.2(1), I must then take into account the general practice of testimonial accommodation not being afforded to everywitness unless there are circumstances which the court considers necessary to permit that testimonial accommodation as contemplated bys. 486.2 (2) and (3).

Conclusion and Decision [38] In my view, on the basis of the information before this court and based upon all above, this is one of those cases where an orderfor testimonial accommodation should not be extended to the principal witness, Mr. Pan. Crown has not discharged its onus.Accordingly, I dismiss Crown's application for testimonial accommodation. (RULING CONCLUDED)