R. v. Sprungmann, 2022 BCPC 164

Citation: R. v. Sprungmann 2022 BCPC 164 Date: 20220601 File No: 22582-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK HANS SPRUNGMANN ORAL REASONS FOR JUDGMENT (RE 714.2 C.C.C. APPLICATION) OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: J.K. Pawlow Counsel for the Accused: M.T. Mulligan Place of Hearing: Colwood , B.C. Date of Hearing: May 25, 2022 Date of Judgment: June 1, 2022 [ 1 ] THE COURT: I will indicate at the outset that I reserve the right to edit these reasons at a later date if necessary as these

reasons have been prepared in some haste due to the trial commencing next week and, based on my ruling, it may be necessary for thecomplainant to make travel arrangements if she wishes to attend in person to provide testimony in this matter. [2] This is an application by the Crown pursuant to s. 714.2 of the Criminal Code seeking an order permitting the complainant inthis matter to provide her testimony by video conference, MS Teams, from Washington State in the United States, where she has residedfor approximately a year now. [3] This matter is a criminal prosecution pursuant to allegations by the complainant that the accused sexually assaulted her onOctober 20, 2020.

The complainant is the central witness for the prosecution as there were, according to my understanding of theallegations, no witnesses to the alleged assault save for the accused and the complainant. Counsel are on common ground in that theyconcur that the credibility of the complainant will be the essential issue at the trial of this matter. The trial is scheduled for two days nextweek, commencing June 7, 2022. [4] The Crown in this application submits that compelling the complainant to return to Canada to testify in person at the trial willlikely have severe consequences for her.

The concerns advanced by the Crown are twofold. Firstly, that the complainant is currentlyapplying for immigration status to the United States and traveling to Canada may prejudice her status.

A letter from her lawyer,practicing in Washington State and representing her in her immigration application, indicates that leaving the United States mayjeopardize her immigration status and, as well, she may not be able to return to the United States if she does attend the trial in Canada. [5] The second concern advanced by the complainant, as submitted by Crown counsel, relates to COVID-19 protocols which mayresult in the complainant being required to quarantine for a period of 14 days if she enters Canada.

Apparently, the complainant is notvaccinated and, as a result, the COVID-19 travel restrictions will be much more stringent for her if she is to cross the border into Canada. [6] I have concerns with the adequacy of the information placed before the court relating to the complainant’s current situation andher inability to attend court in-person.

However, as a result of my concerns with ensuring a fair trial in these proceedings, I do not need toconcern myself with the complainant’s current location and the difficulties that may be presented if she were to be required to attendcourt in person. [7] In my view, the Crown's application must fail as there has been no suitable plan provided to the court setting out the manner inwhich the complainant will provide her evidence virtually. Crown counsel simply indicates the complainant intends to provide hertestimony from her home in Washington State, apparently alone.

This proposal is inadequate and fails to ensure that necessary safeguardswill be in place relating to the fundamental protocols and rules relating to a witness' testimony which are required to preserve theintegrity of the trial process. [8] The accused, the court, and the public are entitled to be satisfied that a witness' testimony is received in a proper manner and thatit is not subjected to any inappropriate conduct undermining the fairness of the proceedings.

As will be discussed below, ensuring thecourt's process proceeds in a manner providing for a fair trial is a fundamental principle of justice and must be jealously guarded tomaintain the legitimacy of the trial process. [9]

Section 714.2(1) of the Criminal Code, although a relatively short provision, engages significant issues and legal principles in itsapplication. Recently, Judge Giardini of this court provided a thorough analysis of the law applicable to s. 714.2(1) applications, R. v.K.N., 2021 BCPC 126. The jurisprudence is clear there is a presumption that the court must grant the application to allow a witnessoutside of Canada to testify by videoconference unless it is satisfied that the reception of the testimony would be contrary to theprinciples of fundamental justice.

In this regard, the onus is on the party objecting to the virtual testimony to satisfy the court on abalance of probabilities that proceeding in the manner sought by the application would be contrary to the principles of fundamentaljustice. [10] In R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475, the Supreme Court of Canada indicated at paragraph 19: … the principles of fundamental justice require that the criminal process be a fair one.

It must enable the trier of fact to "get at the truthand properly and fairly dispose of the case" while at the same time providing the accused with the opportunity to make a full defence … [11] While the principles of fundamental justice encompass a vast array of concepts, there can be no doubt that a primary principleinherent in our justice system and fundamental to the rule of law is that the proceedings, regardless of their manner of operation, mustensure a fair trial. Indeed, the court's ability to provide a fair trial is the bedrock of our judicial system.

The concept engages numerousprinciples including an independent and unbiased judge, the proper implementation of the rules of evidence, and the ability of the partyto fairly challenge evidence prejudicial to that party.

It is foundational to the trial process that safeguards be in place to ensure testimonypresented to the court is received in a manner which allows all engaged in the proceedings and the public to have confidence theevidence is not adulterated. [12] There can be no question that the jurisprudence relating to s. 714.2, as well as the court's process over the past few decades, hasaccepted that virtual testimony is not unusual and does not in itself render the trial unfair.

The courts, with the assistance of enhancedtechnology, have made great strides during the current pandemic to facilitate matters proceeding by way of virtual or remote attendanceby judges, counsel, parties, and witnesses. It is now a common occurrence in our courts for proceedings, including testimony ofwitnesses, to be conducted virtually.

However, despite the fact the technology is superior and more accessible than in the past, the courtand counsel must, as always, remain vigilant to ensure that the court proceedings are undertaken in a manner respecting rules of evidenceand procedure which ensure a fair trial is provided, and same are adhered to in order that trial fairness is not sacrificed at the altar ofexpediency. [13] While a witness may have legitimate reasons preventing them from appearing in person, the court cannot simply provide theparty calling the witness carte blanche to provide the testimony in any manner they wish.

The court must be satisfied the proposedvirtual testimony respects and meets the standards required to ensure a fair trial. This is all the more critical when the virtual testimonysought relates to a central witness in the trial and the credibility of that witness will be the focus of the court's truth-finding function.

[ 14 ] While rules relating to the testimony of a witness may be relaxed in some cases where the virtual testimony is permitted, such as a professional expert witness testifying from their office, the court must be vigilant to ensure virtual testimony provided by critical witnesses respects, indeed meets, the fundamental rules regarding witness testimony to protect the integrity of the court process and ensure a fair trial. And, while virtual testimony by critical witnesses has been and will be permitted, R. v.

Stevens , 2019 NSSC 208 , at paragraph 28 , emphasizes Heightened attention to planning and implementation is appropriate where a witness’s credibility is subject to serious attack at trial and where the out-of-country witness is a complainant. [ 15 ] These concerns have been addressed in the jurisprudence, and principles have emerged which I believe are essential to ensuring virtual testimony does not undermine the integrity of the trial process. [ 16 ] Justice Jamieson in R. v.

Stevens provides a non-exhaustive list of the various considerations for the court to ensure the virtual testimony does not undermine the integrity of the trial. At paragraph 41, Justice Jamieson states: Some principles emerge when assessing

section 714.2 applications for receiving out-of-country videolink evidence. Several are derived from the Court of Appeal’s comments in S.D.L. , supra , keeping in mind that Chief Justice MacDonald was dealing with a very different inquiry under

section 714.1: − It must not impact negatively on trial fairness. − The video technology must allow for counsel, the court, the court clerk, and the accused to see the witness on the screen and hear the witness testify in real time. The witness must also see counsel, the court and the court clerk. − The court must insist on advanced testing and stringent quality control measures that will be monitored throughout the entire process. If the technology proves unsatisfactory, the decision authorizing the video testimony can be revisited.

Similarly, the decision can be revisited at trial if the technology does not permit the witness to testify in the virtual presence of the parties and the court. − It is preferable that the applicant set out its plan in detail at the time of the application pursuant to

section 714.2 .

In some circumstances it will be a requirement and the application may fail without a detailed plan, particularly where the application is made close to the ten day notice period. − Some of the details the plan should address include: set out the type of videolink, and if possible, include technology that will support simultaneous transmission of exhibits and documents or an acceptable alternate procedure; provide a proposal for how the oath will be administered; provide details about the integrity of the proposed location from which the witness will give evidence; indicate who will be present in the room with the witness; set out the proposed procedural safeguards to ensure the witness will be free from outside influence or interruptions; and where a translator is required provide proposed details as to where the translator will be located and associated process.

This is not an exhaustive list and will depend on the circumstances. − The more significant or complex the proposed videolink evidence, (for example where the witness testifying via videolink is a complainant, or where a serious issue of credibility is identified) the more heightened the gatekeeper function will be for the court in ensuring the plan presented for the taking of the videolink evidence is thorough, well-tested and that appropriate procedural safeguards are in place.

Circumstances may dictate additional procedural safeguards be put in place. − While it would be preferable for the witness to give evidence from a courthouse this may not always be feasible internationally, particularly when dealing with significant time zone differences. [ 17 ] The courts have indicated that the preferable procedure under a s. 714.2 application is for the Crown to set out its detailed plan for the taking of the virtual testimony in its application materials in order that the court may properly assess the plan to determine if it meets the standards required to ensure a fair trial, R. v.

K.N. and R. v. Stevens . [ 18 ] In R. v. K.N. , a similar application was made for the complainant to provide evidence by way of a videoconference in a sexual assault prosecution.

The court in that case permitted the application and, in so doing, required that the Crown ensure that the process complied with standard evidentiary procedures with respect to testimony of witnesses including testing quality control of equipment and connections; providing a private space from which the witness can testify; arranging for the space to be at an independent facility if at all possible and practical; and providing an independent person to verify the witness is alone. [ 19 ] It is often the case, particularly when controversial testimony is provided virtually, that the witness is required to attend a local courthouse in their jurisdiction or even at a police station.

This is often implemented to ensure the witness is properly monitored and is not breaching important testimonial rules by having inappropriate aid documents before them while testifying, having other individuals in the room assisting the witness, or improperly accessing information by other means including a phone. The Crown, in this application before me, has provided limited information with respect to the technology to be employed during the complainant’s proposed virtual testimony, the proposed plan to ensure the integrity of her evidence, or how it will be implemented.

I should indicate that in some s. 714.2 applications, the courts have allowed for a two-step process whereby the first step confirms the need for virtual testimony of a witness and the second step has the parties return before the court at a later date to confirm the plan that is in place and that it is suitable for the proceedings. This two-step process has been followed when there is ample time between the initial stage where the court accepts the need for the testimony to be virtual and the commencement of the trial, R. v.

Stevens . [ 20 ] I note there is no proposal or suggestion before me that the parties would appear before the court before the commencement of the trial to set out the plan or have the court assess the adequacy of any plan. There would seem to be insufficient time for that to occur. [ 21 ] It cannot be that the Crown is permitted to have the complainant testify virtually and, on the day of the trial she is to testify, next Wednesday, the parties and the court are advised of the process and the court then assesses whether the process is suitable for receiving the complainant's evidence.

The plan should be approved of by the court prior to the commencement of the trial in order that the trial

may proceed smoothly at the outset, and avoid the necessity of the parties and the court interrupting the trial to determine whether the plan is workable and suitable for the proper reception of testimony in the particular trial. [ 22 ] Applications pursuant to s. 714.2 should, except in rare circumstances, be part of the pre-trial preparations. Such applications should not come before the court at the time of trial, after precious court time has been set aside and all concerned are prepared for the commencement of the trial.

There is an obligation on the applicant to bring their application in a timely manner and ensure the court and all those involved in the proceedings have a clear understanding, well before the day of the virtual testimony, as to the manner in which the testimony will be received. [ 23 ] Having been given insufficient information with respect to the plan to be implemented to receive the complainant's testimony virtually and being unable to assess the suitability of any plan, if there is one, I have grave concerns that virtual testimony by the complainant in this prosecution would fail to meet the standards required to ensure a fair and orderly trial in this matter.

It certainly appears to me, based on the limited information that I have been provided, that having the complainant testify in her residence with no independent monitoring is not appropriate in this case. [ 24 ] In the result, after considering the information before the court and the applicable principles, I am satisfied that permitting the complainant to testify virtually in this trial, without proper safeguards in place to ensure a fair trial, would be contrary to the principles of fundamental justice. Accordingly, the application by the Crown is dismissed. (REASONS CONCLUDED)