His Majesty the King - v. -, 2023 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 56 Date: November 10, 2023 Information: 349949 Location: Yorkton _____________________________________________________________________________ Between: His Majesty the King - and - Austin Kakakaway Appearing: A. Wyatt For the Crown O. Nasirumbi For the Accused RESTRICTION ON PUBLICATION: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. INTERIM APPLICATION P.R.

KOSKIE , J [ 1 ] This an application under s.714.1 of the Criminal Code to allow K.P. to appear by video. [ 2 ] The charge is serious being a sexual assault contrary to s. 271 of the Criminal Code .

[ 3 ] The application is made where the witness’s credibility will be essential and determinative in the trial as K.P. is the alleged victim of the sexual assault. [ 4 ] K.P. is 17 years old. [ 5 ] The Crown argues as follows:

a) K.P. is 17 years of age.

b) She resides 582 kms away from the trial location.

c) Increased costs associated with travel and hotel accommodation.

d) The proposed location for her to give her testimony is a soft room in Meadow Lake Saskatchewan.

e) Is no longer relevant because obviously the Accused does not consent. [ 6 ] The Crown relies on R v Burns & McKay , 2020 SKQB 228 a decision of Mr. Justice Scherman who considered this same matter on a murder and attempted murder charge. [ 7 ]

Section 714.1 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 the evidence to be given by audioconference. [ 8 ] Justice Scherman at paragraph 11 and 12 deals with the COVID factor as it relates to his decision: [11] However, in considering both of these gentlemen's personal circumstances, I must also weigh the inherent risks to them and their family and their workplace contacts of the COVID-19 pandemic. In R. v.

Cunningham , 2020 ONSC 2724 at para 18 , it was held that the Court could take judicial notice of the following factors with respect to COVID-19: 1. COVID-19 is spread by person-to-person contact either directly or via indirect transmission. 2. Individuals may be able to spread the virus while they are either pre-symptomatic or are asymptomatic. 3. The virus can be lethal. … [12] In R v Milliken , 2020 ONCJ 356 , Kwolek J. held at paragraph 70 that COVID-19 is an exceptional circumstance that justifies the greater use of remote testimony. I agree. Thus, considering both the stated personal circumstances of Mr.

Meade and Mr. Crawford, in combination with the judicial notice that I can take of factors with respect to COVID-19, I conclude that the totality of the circumstances weigh in favour of the granting of the orders sought.

[ 9 ] The defence argues:

a) The very serious nature of the charge of sexual assault.

b) The nature of the testimony being the alleged victim.

c) The general rule is the complainant must be present in order to test the truthfulness of the testimony.

d) The offence occurred 5 years ago.

e) Body language and K.P.’s presence is required to determine credibility citing paragraph 44 of R v V.O.S ., 2022 BCPC 47 [ V.O.S .] which reads as follows: [44] Justice MacNaughton provided insight and direction regarding credibility last year in R. v. Chambers , 2021 BCSC 799 : [125] In Bradshaw v.

Stenner , 2010 BCSC 1398 at para. 186 , Justice Dillon summarized the factors that might be helpful to both assessments: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides ...

The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally…Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time ... [Citations omitted.] [126] To those factors, I add that a court may believe some, all, or none of the evidence of a witness, and that credibility determinations "may not be purely intellectual and may involve factors that are difficult to verbalize": R. v.

R.E.M. , 2008 SCC 51 at para. 49 . It is important not to base determinations of credibility on emotional evaluation, stereotypes, guesswork, or other kinds of impermissible reasoning. Credibility and reliability decisions have to be grounded in reason and made as objectively as possible. [127] It is also important to be cautious in placing too much reliance on the demeanour of a witness. I first encountered the witnesses in this case at trial. Thus, my assessment of their demeanor is a first impression, and I have no baseline against which to measure it.

Trials are unfamiliar to most witnesses, and many find them an intimidating experience, particularly when the stakes are high, as they are in a criminal case. [45] The Nova Scotia Court of Appeal decision of R. v. S.D.L ., 2017 NSCA 58 , dealt with a sexual assault complainant and his mother moving to Alberta from Nova Scotia prior to trial. The trial judge had permitted the complainant to testify by videoconference pursuant to s 714.1 .

The Nova Scotia Court of Appeal found that it was inappropriate to permit remote testimony for several reasons, including the fact that the credibility of the young complainant was at issue . [ 10 ] It should be noted that in Martin’s Criminal Code at page 1482 it notes that the British Columbia Court of Appeal in R v J.L.K ., 2023 BCCA 87 adopts a more flexible approach stating that: There is no bar to invoking this

section where credibility issues loom large. Videoconference technology has developed to the point where the parties in the courtroom, including the trier of fact and counsel, can generally see and hear the witness clearly such that the witness’s testimony can be properly tested and assessed. Sworn evidence is not necessarily required to support an application; rather, submissions of counsel can suffice. [ 11 ] In addition, at paragraph 57 in V.O.S : [57] Of particular interest and importance is that at paragraph 26, Justice Duncan adopted the Nova Scotia Court of Appeal's reasoning in S.D.L .:

[26] The starting point is that the attendance of a witness at trial is the norm and an order under s. 714.1 is the exception. The NovaScotia Court of Appeal, in R. v. S.D.L., 2017 NSCA 58, reviewed the jurisprudence concerning the

section and proposed a set ofguidelines for trial judges in that province: [32] ... 1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted.As the case law suggests, in appropriate circumstances, it can enhance access to justice. 2. That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstancesthat personally impact the proposed witness. Mere inconvenience should not suffice. 3.

When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even morecompelling. 4. The more significant or complex the proposed video link evidence, the more guarded the court should be. 5. When credibility will not be an issue, the test should be on a balance of convenience. 6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided byaffidavit. Should cross examination be required, that could be done by video link. 7.

When authorized, the court should insist on advance testing and stringent quality control measures that should be monitoredthroughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited. 8. Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify "in a courtroom...or at the offices ofVictims' Services...".

To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, shouldbe taken from a local courtroom. [12] Contrast that with Justice Kenkel’s decision in R v K.Z., 2021 ONCJ 321 where he found as follows at pages 29 through to 31of V.O.S in paragraphs 12 through 21 of K.Z. [12] In SDL, the Nova Scotia Court of Appeal considered

section 714.1 as that

section was in force from January 1, 2013 toSeptember 18, 2019. The discretion to permit testimony by "technology" was then based on only three criteria: witness location and circumstances, costs of travel and the nature of the witness' evidence. Bill C-753 brought significant changes to that section, adding fourfurther criteria that address a number of the concerns cited in SDL. The amendments also added s 714.41 which permits and instructs atrial court to cease the use of videoconference testimony if there are technological or other issues that make it impracticable or in-appropriate to continue in that manner.

That was a significant concern in SDL — that the trial continued despite technological problems. [13] The C-75 amendments significantly expand the ability of criminal courts to use virtual proceedings for all participants. Thetiming was fortuitous as six months after the amendments took effect a global pandemic required courts in this province to pivot to theuse of videoconference and audioconference technology in order to continue operations.

Parliament has provided additional criteria toguide the exercise of discretion in s 714.1, but it did not adopt a special test for complainants' evidence. [14] Even prior to the pandemic, criminal trial courts had experience in assessing the credibility of witnesses testifying remotely via video. In 1988, Bill C-154 made several important changes to the laws regarding sexual offences including provision for remote closed-circuit testimony as an alternative to in-person appearance or testimony behind a screen. Since that time, judges have heard testimony byvideo pursuant to s 486.2.

Almost all of those witnesses have testified in cases involving allegations of sexual assault or domesticviolence where the credibility of the witness was the central issue. [15] The Supreme Court has acknowledged that the ability to see a witness’s face is an important feature of a fair trial — R v NS, 2012SCC 72 at para 21. The court has upheld the use of testimonial aids such as testifying behind a screen or via videoconference, relying onthe fact that they do not prevent the accused from seeing the witness: NS at para 23, R v JZS, 2010 SCC 1, R v Levogiannis, (SCC), [1993] SCJ No 70.

Even in cases where credibility is the central issue, the right to make full answer and defence doesnot require the accused to be in the same physical space or courtroom as a witness or complainant — R v Robinson, 2021 ONSC 2447 atpara 15. [16] Virtual trials in this province are being held on the Zoom platform. Zoom has proved to be an intimate medium, allowing not onlya full view of the witness, but often a closer view than would be available in a courtroom.

When testimony is heard by way of videoconference, all of the elements essential to the "right of confrontation"5 are preserved: the presence of all participants in thehearing, testimony under oath or affirmation, cross-examination of the witness and a full opportunity to hear the answers of the witness and observe their demeanour.6 [17] During the pandemic, any in-court witness wears a face mask throughout their testimony, enclosed in a plexiglass booth, andseparated from the judge and other participants by further plexiglass.

We've learned that witnesses can often be seen and heard better ona videoconference than in-person under those conditions. [18] The credibility of witnesses is almost always a factor in criminal trials. "It would be an error to approach the analysis from theperspective that the mere existence of credibility as an issue alters the nature of the analysis" — R v Mapp-Farouk, 2020 ONSC 5040 atparas 23-24.

The argument that testimony via videoconference results in a somewhat reduced ability to assess demeanour and thereforeassess the credibility of a witness doesn't appear to be true in light of the extensive experience courts have had with virtual trials during

the pandemic, and in my view doesn't accord with the modern approach to the assessment of witness credibility. [19] In R v Levert, (ON CA), [2001] OJ No 3907 (CA), Justice Rosenberg noted at paragraph 27 that, "Perceptionsof guilt based on demeanour are likely to depend upon highly subjective impressions ...". The Court of Appeal later described evidence ofout-of-court demeanour as "highly suspect and easily misinterpreted" in R v Bennett, (ON CA), [2003] OJ No 3810(CA) at para 118. The same observations have been applied to the use of demeanour in assessing in-court testimony.

In R v Rhayel, 2015ONCA 377, the Court of Appeal held at para 85, "It is now acknowledged that demeanor is of limited value because it can be affected bymany factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with acourtroom." In Rhayel, at paragraph 89 the court instructed trial judges to make findings of credibility without undue reliance on suchfallible considerations as demeanour evidence. [20] Even assuming that some things are lost in a virtual courtroom as compared to an in-person trial, the evidence that is important tocredibility is typically found in the questions put to the witness and their answers, all of which is captured and recorded in either format.The demeanour of the witness is on close display on video, but even if there is an aspect of demeanour that can't be seen on video, it's notplain that it reasonably could have much relevance to the issue of credibility, much less require a specific, restrictive test to preserve. [21] Finally, a review of the cases on this issue show that many of these applications involve complainants in cases involvingallegations of sexual assault or domestic violence.

SDL was a sexual assault case as is this one.

Section 715.22 requires that all of thevirtual court provisions be interpreted in a manner that ensures fair hearings and enhances, not restricts access to justice for allparticipants. I find that adding an "exceptional and compelling circumstances" test to cases involving complainant credibility isunnecessary and risks creating a barrier to justice for complainants in these cases. DECISION [13] I adopt Justice Kenkel’s reasoning in its entirety. [14] I do not find that the defence is prejudiced in any way by video testimony. [15] This is particularly true having regard to s. 486.2(1) which reads as follows: Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of awitness 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 mentalor physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or otherdevice that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interferewith the proper administration of justice. [16] K.P. is 17 years old and by virtue of her age has a right to testify in a soft room. [17] A soft room in Meadow Lake is no different than a soft room in Yorkton. [18] In the circumstances the Crown’s application succeeds and the application is granted. ________________________Koskie, J