S.T.M. v. C.H., 2021 BCPC 354

Citation: S.T.M. v. C.H. 2021 BCPC 354 Date: 20210817 File No: [Omitted] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.T.M. APPLICANT AND: C.H. RESPONDENT CORRIGENDUM ORAL RULING RE APPLICATION TO RECALL WITNESS OF THE HONOURABLE JUDGE M BRECKNELL Counsel for the Applicant: G. Whidden Counsel for the Respondent: F. MacLean and A. Sadovska Place of Hearing: Prince George , B.C. Date of Hearing: August 17, 2021 Date of Judgment: August 17, 2021

A Corrigendum was released by the Court on May 27, 2022. The correction has been made to the text and the Corrigendum is appended to this document. [ 1 ] On File Number [omitted for publication], an application brought mid-trial by C.H., through his counsel, Mr. MacLean, to permit D.H. to be recalled to the stand, to be cross-examined with regard to a video that I am told depicts an aborted exchange between D.H. and C.H. with regard to the child B.H. that occurred sometime in the past. [ 2 ] Mr. MacLean advises the Court that he has just become aware recently of this video.

He did not know of its existence when D.H. was cross-examined during the court proceedings in April of 2021, and that given D.H.’s evidence and the fact that this video is now available, he wants to be able to play the video for him and then ask him questions about that topic. [ 3 ] He tells the Court that that is the only topic he wishes to cross-examine further with D.H., and that it should take only ten or fifteen minutes. [ 4 ] Mr. Whidden objects to D.H. being recalled.

He points out that D.H. put into evidence his version of events way back in the summer of 2020 when an interim hearing was held, and that that rendition of events should have tweaked both Mr. MacLean and Mr. MacLean's client, C.H., to what his version was, and if there was this video in existence, it should have been put to D.H. at that time. [ 5 ] Mr. Whidden relies on the case of R. v.

Tait , a decision of Madam Justice Murray, found at 2020 BCSC 1536 , where in a criminal context the justice lays out the very strict test for re-re-examination of witnesses, and she relies on some Court of Appeal authority in that regard. [ 6 ] There is a difference, however, between a criminal proceeding and this type of proceeding. Criminal proceeding operates under very close adherence to the strict rules of evidence. Family proceedings have, in the past decade or two, become a bit more of an investigative or inquisitorial process, as opposed to a strictly adversarial process.

That is because in a criminal case, the judge has to weigh the evidence beyond a reasonable doubt and ensure that the rights of the accused, and those of the witnesses, are maintained.

In a family case, we have the two litigants, usually parents, and one has to be respectful of their positions, but at the end of the day the only test I am to apply in making decisions about B.H. is her best interests as described in s. 37. [ 7 ] Now, I will pause there momentarily and say that courts, in general, find it distasteful that people now have taken to videoing others in litigation without their knowledge, without their consent, and then asking the Court to rely on those recordings.

People do have a right to privacy in general, and unless there is good reason, surreptitious recordings should not generally be permitted. [ 8 ] Having said that, the fact remains that if the evidence is probative and admissible otherwise, the courts generally permit the admission of it, often accompanied by a lecture about, going forward, ensuring to maintain other people's privacy, or at least give them knowledge either in advance or at the time of the recordings that they are being recorded, because that way a person can decide whether they want to roll up their window, whether they want to drive away, whether they want to participate. [ 9 ] At the end of the day, however, when I get to looking at B.H.’s best interests and seeing how the adults treat each other when they are in her company, I come to the conclusion that the video should be admitted and allowed to be played and that D.H. should be further cross-examined on that one point. [ 10 ] Having said that, I would add two other things.

One, Mr. Whidden, you will be entitled, of course, to re-examine him once your friend has finished cross-examining on that one point. Two, D.H. should be re-subpoenaed to appear, if it is convenient and he is available later this week. But, I take Mr. Whidden's comments that perhaps a better time to do it would be at the very beginning of when we recommence in November to give Mr.

Whidden time, for example, to allow D.H. to watch the video in advance so he can recollect the circumstances under which this occurred. [ 11 ] I say that, because the interesting thing about videos is, number one, when does the videographer choose to turn on the video and when do they choose to turn it off; and number two, perhaps D.H. will say, well, wait a minute, this exchange took three minutes, the video is only a minute and thirty-six seconds long, what happened?

Was it turned off, was it edited, et cetera. [ 12 ] So I will leave it to counsel to discuss logistics of getting D.H. back here, but I will allow the video to be played. D.H. can be cross-examined on it, of course, you have to authenticate the video by saying is that you. Yes. Okay. He may say no, that is not me. (RULING CONCLUDED) CORRIGENDUM - Released May 27, 2022 In the Oral Ruling dated August 17, 2021, the following change has been made: 1. The counsel for the Respondent are F. MacLean and A. Sadovska.