R. v. J.L.K. Date:, 2015 BCPC 139

Citation: R. v. J.L.K. Date: 20150504 2015 BCPC 0139 File No: 207168-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. J.L.K. RULING ON APPLICATION OF THE HONOURABLE JUDGE J.A. OULTON Counsel for the Crown: W. Sayson, Q.C. Counsel for the Defendant: N. Preovolos Place of Hearing: Surrey , B.C. Date of Hearing: May 4, 2015 Date of Judgment: May 4, 2015

[ 1 ] THE COURT : This is an application made alternatively under s. 486.1 of the Criminal Code or with respect to a judge's discretion to manage the conduct of matters in his or her courtroom. What this application concerns is an upcoming trial on May 26th and 27th where it is proposed that a nine-year-old complainant will have the assistance of an accredited assistance dog.

This dog, Caber, has been trained by the Pacific Assistance Dog Society and has been in the employ of the Delta Police Department since August 1st, 2010. [ 2 ] This application is somewhat unusual in that defence was not opposed to the application, but merely pointed out that as it currently stands, the wording of s. 486.1 refers to the ability of a witness under the age of 18 to have a support person present, and it is a mandatory direction under that section, and defence points out that a dog is not a person. [ 3 ] With respect to the qualifications of this dog, I heard from Kim Gramlich who has been Caber's handler for a long time now, and specifically with respect to the pilot project that has been in effect at the Surrey Courthouse for the last few years, I am satisfied that Caber, as he is an accredited assistance dog, trained at the Pacific Assistance Dog Society, is an appropriate animal to assist in this type of forum. [ 4 ] Caber has met this complainant in this case on at least one occasion, and the child is going to meet the dog again tomorrow.

The intention was that Caber would come in with his handler and sit at the feet of the complainant when she testifies. The dog was seated, in fact, at Ms. Gramlich's feet when she explained Caber's background and how she has helped and how the pilot project has operated over the last few years, and it was not at all apparent that Caber was even in the courtroom. [ 5 ] So in terms of my decision in this matter, in my view I am going to allow this application in both ways, and first of all in allowing Ms.

Gramlich to come and be a support person to this young complainant, it could be argued that this support person, given what her role is, and she is the handler of this dog, while it is unusual that a dog come into a courtroom with the support person it is something that has begun to happen in Canada.

I was provided with an example of it happening in Calgary in December of 2014 and in Edmonton in March of 2015, so there is a way, in my view, of making the decision to say that in permitting the handler to come in, the handler comes in with the dog and the dog can be present in the courtroom as providing support. [ 6 ] This is also in accordance with what the spirit and intent of the testimonial accommodation legislation was meant to address which, at bottom, was just to ensure that witnesses who, in general, could be perceived as more vulnerable, were provided with support so that they could give full and candid accounts of what they were being asked to testify about in court. [ 7 ] The alternate way to make my decision is one that I also would make it on the basis of, and that would be to say that I am satisfied, given everything that I have heard, that it would be appropriate to accommodate this complainant in this manner, given that the dog is fully trained and accredited and that the child has met the dog and has been comforted by, and is comfortable with, the dog.

So whether it is an attenuated version of s. 486.1 , not stretching the definition of "person" to include "dog," but understanding that a dog handler would come with the dog, or accommodating this particular witness because it is in my discretion to do so, I will permit the dog, Caber, to come with the child on May 26th. [ 8 ] With respect to the mechanics of how that will take place, as described by Ms. Gramlich, she would bring the dog in and leave the dog at the child's feet, and then she could remain in the gallery.

If there are any issues she is close but she is not right beside the witness unless or until she is needed to be. (RULING CONCLUDED)