R. v. Mills, 2021 BCPC 55

Citation: R. v. Mills 2021 BCPC 55 Date: 20210324 File No: 21858-1-K Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLTON IAN MILLS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: M. Feldthusen Counsel for the Defendant: R. Drury Place of Hearing: Colwood , B.C. Date of Hearing: March 23, 2021 Date of Judgment: March 24, 2021 A Corrigendum was released by the Court on March 29, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

The Issue [ 1 ] Mr. Feldthusen, for the Crown, seeks an order, pursuant to

section 714.1 of the Criminal Code , to permit a Crown witness (the complainant) to testify by video link at the trial of this case. Mr. Drury, for Mr. Mills, advises that he is not in contact with Mr. Mills, and so has no instructions in relation to the application. He hopes to hear from Mr. Mills before the scheduled trial date (March 30, 2021), but is not confident that he will. The Circumstances [ 2 ] No evidence was tendered in support of the application. Mr. Feldthusen provided a brief

summary of the circumstances on which he relies. The Crown alleges a domestic assault by Mr. Mills. The complainant is not now in British Columbia, and is not expected to return to British Columbia before the scheduled trial date. Mr. Feldthusen declined to say where she is. He advises that she may return to British Columbia later this year. Jurisprudence [ 3 ] Counsel referred me to no authorities. [ 4 ] In R v Young 2000 SKQB 419 ; [2000] SJ No. 590; 150 CCC (3d) 317; 201 Sask R 158, Justice Wright said that “… each case will depend upon its particular facts …”.

As noted above, there is a singular lack of particularity in the factual matrix provided to me. [ 5 ] In R v S.D.L. 2017 NSCA 58 ; [2017] NSJ No. 247 ; 352 CCC (3d) 159, Chief Justice MacDonald said @ paragraph 12: The applicant (whether Crown or defence) has the burden to provide the court with sufficient evidence to justify the order being requested. There is no evidence in this case. In some cases, it may be possible to decide the application on the basis of a statement of facts provided by counsel. However, such a course should not be followed where relevant facts are in dispute.

Respondent’s counsel should be asked whether (s)he is content to proceed in that way. If not, the evidence necessary to support the application must be tendered. Where the application is founded upon a statement of facts provided by counsel, the statement must be sufficiently particular to allow the court to decide the application. [ 6 ] At paragraph 32 of S.D.L. , Chief Justice MacDonald set out the principles to be applied on applications under

section 714.1 : 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 circumstances that 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 more compelling. 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 by affidavit. 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 monitored throughout 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 of Victims' Services...".

To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom. [ 7 ] At paragraphs 19 – 21, Chief Justice MacDonald acknowledged that an accused person in Canada has no constitutional right to confront his accuser in open court, but that, with the absence of a constitutional constraint acknowledged, “… an accused's right to face his or her accuser in the courtroom remains a fundamental aspect of most criminal trials”. A contrary view was expressed in R v Lawrence 2021 NLSC 7 ; [2021] NJ No. 25 @ paragraph 19.

However, my colleague, Justice Patterson, accepted the view expressed by Chief Justice MacDonald in R v. De Bartolo 2020 BCPC 220 ; [2020] BCJ No. 1867 @ paragraphs 33 – 35.

I agree with Chief Justice MacDonald. [ 8 ] In R v Brown 2021 ONCJ 123 ; [2021] OJ No. 1130 , Justice Marion said @ paragraphs 26 – 28: Where possible and feasible, remote testimony is encouraged, however, where remote testimony is opposed, controversial evidence is to be heard, concerns are raised as to the fairness of trial, then the location where questioning is to take place and the reliability of the video link are of significant importance. To illustrate my point that Applications should provide specific information, I was asked to consider remote testimony from the witness' home.

I advised that I was prepared to dismiss the Application. I was then asked to consider remote testimony from the Brantford courthouse. I then adjourned the matter to today's date to test the video link with the Brantford courthouse. I was advised today that it could not be done due to restrictions caused by the pandemic.

Before an approval is sought for remote testimony, some effort must be made to determine if it is feasible and appropriate. I have been given no information about the location from which the complainant is to testify, or about the technology to be employed. [ 9 ] In his submissions, Mr. Feldthusen referred to the existence of the present pandemic, and suggested that leave should be granted for remote testimony because the Chief Medical Heath Officer of British Columbia has asked all citizens to refrain from “non-essential” travel. That issue has been considered in several other cases. In R v.

Cunningham 2020 ONSC 2724 ; [2020] OJ No. 3878 , Justice Varpio said @ paragraphs 16 – 19: Skarica J.'s recitation of the evolution of the "accepted facts" of the coronavirus shows the frailties of an aggressive use of judicial notice in such a fluid circumstance. At paragraph 46 of his reasons, Skarica J. rightly noted that taking judicial notice of the known "facts" of COVID-19 prior to mid-March 2020 would have led to findings that, inter alia, COVID-19 cannot be transmitted person-to-person and that it would not affect modern life in a meaningful way. Clearly, this would have led to incorrect conclusions.

Therefore, it is clear to me that a cautious use of judicial notice is appropriate in the circumstances as per para 48 of R. v. Find, 2001 SCC 32 . An aggressive or overly-flexible approach to judicial notice would lead to circumstances whereby the courts fail to adhere to the two-part test in Find , namely that facts may only be noticed judicially when they are either: 1. So notorious or generally accepted as not to be the subject of debate among reasonable persons; or 2. Capable of immediate and accurate demonstration by resort to readily acceptable sources of indisputable accuracy.

Much of the readily-available information regarding COVID-19 fails both prongs of the Find analysis. Because further analysis is not relevant to my decision, I need not go through a comprehensive review of same. Nonetheless, it is clear to me from all the various sources of information currently available that the following meets the Find test: 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; 4.

The rates of mortality appear to be pronounced among the aged as well as among those who have certain underlying conditions such as respiratory ailments. The mortality rate among those who do not fall within these categories is not nearly as high; and 5. Social distancing has been utilized to lessen the rate of infection in the population and, as such, the failure to adhere to social distancing will generally increase the rate of infection. To go beyond the above-referenced five points would, to my mind, be an aggressive use of judicial notice that would not adhere to the Find analysis.

The acceptance of other facts related to COVID-19 requires expert evidence given the fluidity of the science involved. Analysis [ 10 ] The information provided by Mr. Feldthusen is manifestly insufficient to support the order sought. To take a few examples: (

i) if the complainant is now in a place where the incidence of COVID is very low, the application is much less persuasive than it would be if she is in a place where the incidence is high; (ii) much depends on the technical facilities available in that location; (iii) the particulars of the alleged assault and the evidence which the complainant will be asked to give are important.

There are some cases in which a complainant should be allowed to testify remotely because of the emotional trauma which often results from certain kinds of assault. [ 11 ] In this case, I have been given no particulars of the alleged assault. It seems likely that the complainant’s credibility is in issue, but I have no information on that subject. [ 12 ] While the technology has come a long way in recent years, video appearances remain a poor substitute for the live testimony of a witness who is present in the courtroom. In my experience: a.

The quality of the video depends critically on the lighting and camera position in the room from which the witness gives evidence. In many cases, the witness’ face is not clearly visible. In most cases, the witness’ body language is not visible. b. The audio quality is both inconsistent and unpredictable. At the start of the evidence, the witness is often clearly audible. However, at some point during the evidence, the audio often “breaks up”, and the listeners can hear only isolated syllables separated by random electrical noise.

If this occurs during cross-examination, the momentum of the cross-examination is interrupted and the effectiveness of the cross-examination is significantly inhibited. c. A courtroom during a criminal trial is a highly interactive environment. One sometimes sees a witness in the witness box looking to people in the public gallery for encouragement or guidance. Sometimes, people in the gallery attempt by words or gestures to influence the evidence. It is sometimes necessary to take steps to prevent such behaviour.

When a witness gives evidence by video, there is no way of knowing what may be happening in the room where she is, or how her evidence may be affected. Parliament has decided that such issues are not sufficient to justify a blanket rule requiring all witnesses to attend in person. However, those issues do require a careful consideration of the factors referred to in the statute and in the jurisprudence. Orders under

section 714.1 should not become a matter of routine. [ 13 ] Rather than dismiss this application, I think that I should adjourn it to allow Crown counsel the opportunity to remedy its deficiencies.

Disposition [ 14 ] The application is adjourned generally. March 24, 2021 _____________________ T. Gouge, PCJ CORRIGENDUM – Released March 29, 2021 In the Reasons for Judgment dated March 24, 2021, the following changes have been made: [1] The date above the signature line should be: March 24, 2021. _____________________________ The Honourable Judge Gouge Provincial Court of British Columbia