R. v. Liu, 2021 BCPC 301

Citation: R. v. Liu 2021 BCPC 301 Date: 20210122 File No: 256801 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUN JACK LIU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.I. DENHOFF Counsel for the Crown: J. Madden Counsel for the Defendant: T. Tso Place of Hearing: Vancouver , B.C. Date of Hearing: January 22, 2021 Date of Judgment: January 22, 2021 [ 1 ] I do want to thank both counsel for providing the materials in advance. I was able to review them carefully over the last couple of days and I also had the assistance of some additional research through one of our law clerks, so I think together we have the area well

covered in terms of the case law. I did, of course, as I indicated, review all the materials that the Crown provided that it relies on in termsof affidavit evidence for this application. So I am prepared now to give my reasons and judgment on this application as follows. [2] The accused is charged with robbery and assault.

This is a Crown application pursuant to s. 714.1 of the Criminal Code for thecomplainant to testify at trial by videoconference from Toronto, where the complainant resides. [3] The reason for the application is the current travel advisory by the federal government and separately by the governments ofOntario and British Columbia for people to travel only for essential purposes. The rationale provided by all three governments for thetravel advisory is to prevent the spread of COVID-19.

At this time, the entire country is in the grips of a second wave of the pandemicwith the province of Ontario and especially the metropolitan Toronto area experiencing dangerously high numbers of infection. In fact,on January 13, 2021, the province of Ontario issued a stay-at-home order which prohibits people from leaving their home, except fordesignated purposes. [4] Although "attending a place as required by law or in the administration of justice" is one of the permitted exceptions, it is notwithout risk.

The Crown has tendered evidence which indicates that between January 5 and 14, 2021, there were 66 flights in or out ofToronto airport where travellers may have been exposed to COVID-19. The Crown argues that by travelling to British Columbia thecomplainant would create a risk of transmitting more COVID-19 infection to this province and the risk of taking more COVID-19infection back to Ontario.

That is the very reason why the three governments aforementioned have issued travel advisories againsttravelling. [5] The Crown also argues that the complainant would be at high risk of contracting COVID-19 by having to travel through twomajor airports and being on a flight from Toronto to Vancouver. [6]

Section 714.1 provides that: A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that itwould 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 theevidence to be given by audioconference. [7] The Crown and defence referred the court to five cases decided under s. 714.1 since the pandemic, and I referred counsel to twomore cases. In R. v. J.W.T., 2020 NSSC 300 and R. v. K.S., 2020 ONCJ 328, the decisions were rendered on September 4 and July 20,2020, prior to the second surge of the pandemic. Also, at those times there were no travel advisories against domestic travel.

In bothcases the court found that there was no evidence tendered that the complainant would be at any higher risk of contracting or transmittingCOVID-19 by travelling. [8] In R. v. Rutaihwa, 2020 ONCJ 470, R. v. SLC, 2020 ABQB 515 and R. v. Ochoa, 2020 ONCJ 432, relied upon by the Crown,the court found that the Crown had established that the complainants had legitimate reasons for wanting to testify remotely. Two of thecases related to health risk created by the pandemic. In the final cases of R. v. Zamora, 2020 BCSC 1259 and R. v.

De Bartolo, 2020BCPC 220, the court accepted that there were valid reasons for the witnesses to testify by videoconference related to a health risk createdby the pandemic. [9] In this case, where we are in the middle of a second surge of the pandemic, which is markedly worse than the first surge andwhere individuals in Ontario are on lockdown and the number of infections has been climbing daily, and where there are a number ofdaily exposures to COVID-19 on airplanes in and out of Toronto, and where Ontario, British Columbia and the federal government haveall travel advisories in effect for unessential travel, the complainant has a valid reason to wish to testify by videoconference. [10] Relying on S.D.L., 2017 NLCA 58 , 2017 NFCA 58 at paragraph 32, the defence argues that where there is an issue ofcredibility, as there is in this case, the court should only authorize attendance by videoconference in exceptional circumstances.

Thecurrent circumstances I have described in relation to the pandemic are exceptional circumstances. [11] In addition, several cases have rejected the notion that there must be exceptional circumstances in cases where credibility is inissue; see R. v. Metcalfe, 2018 ONSC 4925, paragraph 12, also Ochoa, paragraph 14 and Rutaihwa, paragraphs 14, 15, and 16. Each ofthose cases commented that if parliament had intended for s. 714.1 to only apply in exceptional circumstances where credibility is anissue, it would have said so.

Rather, the nature of the evidence is simply one of the several factors to be considered. [12] The nature of the complainant's evidence in this case will be in relation to her description of the accused's actions of allegedrobbery and assault, which the accused is currently denying. Therefore, cross-examination of the complainant by the defence will be keyto the case for the defence. [13] In several cases, including Zamora, Rutaihwa, Ochoa and R. v. Jeanes, 2014 BCSC 994, the court found that the use of video

technology would not impede the accused's right to make full answer and defence or to effectively challenge the witness' credibility in a meaningful way. In each of those cases the accused was facing serious charges such as in this case. [ 14 ] In terms of the cost to be incurred if the witness were to attend in person, that is not a consideration in this case. The suitability of the location from which the complainant intends to testify is a consideration under s. 714.1 . The location proposed for the complainant is to testify by MS Teams from her home.

Many courts have found that the courts can maintain the solemnity of the courtroom by reminding the witness of the importance of her oath and the fact that she is testifying in a formal court proceeding. [ 15 ] It should be noted that the Crown attempted to arrange for the complainant to testify from one of the courthouses in the Toronto area, but all of their videoconferencing equipment is being utilized on the days of this trial for their own court proceedings.

The court also attempted to arrange for the complainant to testify from one of the police stations in the Toronto area, but none would accept the complainant into those premises because of the current lockdown. [ 16 ] MS Teams is currently being used by this court to conduct bail hearings, sentencings and remand lists. One of the paralegals with the Crown office tested MS Teams with the complainant in her home on January 20 and 21, 2021, and the connection worked well, and the complainant was able to see a document shown to her by the paralegal.

According to the Crown, the complainant lives alone and the paralegal was able to direct the complainant on positioning her camera so that her upper body and hands could be viewed. [ 17 ] Having considered all the factors listed in s. 714.1 and based on the current case law, I am satisfied that the technology suggested will be an appropriate means by which the complainant's evidence may be received at trial, given the following conditions: [1] The complainant will testify by MS Teams; [2] She will testify from a private room in her residence; [3] The complainant will use the camera on her electronic device to demonstrate to the court that no one else is in the room; [4] The complainant will situate herself so her camera captures a view of the doorway into the room; [5] The complainant will not have any papers or other items in her possession unless permitted by the court; [6] The complainant must not have a cellphone in her immediate possession unless she is testifying from her cellphone; [7] The complainant must not touch the keyboard, mouse, trackpad or change the angle on her electronic device without the permission of the court; and [8] The host will disable any recording function available on the videoconferencing. [ 18 ] Lastly, I note that as the trial judge, I will have the ability to halt the videoconferencing and arrange for another process if the videoconferencing being used is not working as intended. [ 19 ] The Crown's application for the complainant to testify by MS Teams from her private home in Toronto, Ontario, is granted on the aforementioned conditions. (REASONS CONCLUDED)