R. v. T.J.L. Date:, 2017 BCPC 98

Citation: R. v. T.J.L. Date: 20170324 2017 BCPC 98 File No: 32431-1-K Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.J.L. RULING OF THE HONOURABLE JUDGE M. J. BRECKNELL Counsel for the Crown: J. Patterson Counsel for the Defendant: K. Anderson Place of Hearing: Terrace , B.C. Date of Hearing: March 24, 2017 Date of Judgment: March 24, 2017 [ 1 ] THE COURT: This application by the Crown under s. 486.2(2) , (2.1) and (3) of the Criminal Code seeks an order that the

complainant in this action be granted testimonial accommodation. The application is opposed by the defendant. [ 2 ] The allegations are that on June 5, 2016, Mr. L. assaulted Ms. M. contrary to s. 266 of the Code . The Crown further alleges the assault involved a choking. [ 3 ] The affidavit of Ms. M. discloses that she had known Mr. L. for nine years, the first eight as friends and the last year up to the incident alleged as a romantic partner. [ 4 ]

Section 486.2(2), (2.1) and (3) as recently amended in 2015 reads as follows:

(2) Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider (

a) the age of the witness; (

b) the witness’ mental or physical disabilities, if any; (

c) the nature of the offence; (

d) the nature of any relationship between the witness and the accused; (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (f.1) whether the order is needed to protect the witness’ identity if they have had, have or will have responsibilities relating to national security or intelligence; (

g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (

h) any other factor that the judge or justice considers relevant. [ 5 ] I am not the trial judge in this case.

The case has not yet been assigned, but I am a judge having jurisdiction in this judicial district. [ 6 ] The amendments to s. 486.2 made several changes from earlier versions by changing wording such as in the old version, part of (2) "the order is necessary to obtain a full and candid account" to the new wording "the order would facilitate the giving of a full and candid account." And with regard to (3), the new version has the delineated provisions that I have already read, the old version says the following: In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant. [ 7 ] The new provisions under (3) set out more specific examples of what the court is to consider.

These changes have had the effect of removing some impediments for some witnesses with some challenges in their ability to testify before the court. [ 8 ] The affidavit in support of this application is quite brief and I shall read it. It says the following [as read in]: I, M. L. M., of Terrace, British Columbia, swear or affirm that

(1) I am the complainant in an assault case involving T. L.

(2) T. L. and I were in a romantic relationship for over one year prior to the events giving rise to this trial. Prior to that, we had been friends for approximately eight years.

(3) I understand that this case has been set for trial on April 3 and 4, 2017. I understand I'll be required to attend court and to testify in this case.

(4) I understand it is possible for the court to allow me to testify by video from another room in the courthouse.

(5) I would prefer to testify outside the courtroom. I do not want to testify in the presence of T. L. I am extremely anxious and nervous about seeing T. L. in the courtroom.

(6) If I'm required to testify in the courtroom during the trial of T. L., I believe I will be incapable of speaking in an understandable

fashion, will become very emotional and will cry. When I become emotional and anxious, it is difficult to communicate in a clear manner. This has been my experience when talking about the events giving rise to this trial with others.

(7) I have suffered from anxiety since July 2016. I suspect that I am suffering from post-traumatic stress disorder because events that did not bother me in the past now cause me great stress. This has impacted my ability to do my job. I have not been medically diagnosed with such a disorder, but hope to see a medical doctor soon for an evaluation.

(8) If I am permitted to testify by video from another room outside of the courtroom, I do not believe I would have difficulty communicating in an understandable manner. [ 9 ] The affidavit is the only evidence presented in support of the application by the Crown. In submissions the Crown relies on the following cases: R. v. Smith , [2007] BCSC 1955, for the definition of what ‘facilitate’ means within the criminal justice system; R. v. Ashouri , [2015] BCPC 0452; R. v.

O'Hare , [2016] BCPC 0362 where the courts in those cases considered s. 486.2(2) , (2.1) and (3) , and in the case of O'Hare , an affidavit of the complainant in deciding on that occasion to allow the witness accommodation. [ 10 ] In this case, the Crown submits that Ms. M. has provided sufficient evidence to allow the court to exercise its discretion in favour of accommodation. In particular, the Crown says the affidavit satisfies the provisions and specifically (

b) the mental or physical disabilities section, which admittedly is weak in the circumstance; (

d) the nature of the relationship, the fact that Ms. M. and Mr. L. were first friends and then lovers; (

g) society's interest in reporting offences, that Ms. M. may be less inclined to report an offence if she is going to be put through the additional stress of having to testify in court in circumstances where she is anxious; and (

h) any other factors considered relevant. [ 11 ] Defence counsel opposes the order in general and specifically. He now seeks instead an order that Ms. M. be cross-examined on her affidavit, probably in a voir dire with accommodation at the beginning of the voir dire so that the court can decide whether further accommodation in the trial is necessary. Defence counsel describes the affidavit as deficient and not robust enough with its assertions of fact to allow such an order of accommodation without the cross-examination. [ 12 ] In support of that, defence counsel relies on R. v.

Buckingham , a decision of the Ontario Superior Court of Justice dated June 10th, 1999, where such a procedure was adopted when the defence objected to the accommodation for the complainant. Defence counsel also provided but did not refer to R. v. Alam , [2006] ONCJ 593 and two Department of Justice Canada articles concerning s. 486.1 and 486.2. [ 13 ] In the alternative, defence counsel says that the Crown has not marshalled sufficient evidence to lead the court to the opinion that the accommodation would facilitate the giving of a full and frank account.

Defence counsel pointed to some marked differences between the affidavit of Ms. M. and the evidence presented in Buckingham which included the complainant and several others who had dealings with the complainant and who could comment on her anxiety and other issues that would interfere with her giving evidence. [ 14 ] In the same vein, defence counsel pointed to O'Hare . In that case, the charge was criminal harassment.

In that case, the complainant's affidavit deposed that (1) she was diagnosed with a coronary arterial heart disease with heart palpitations when stressed resulting in chest tightness, light-headedness and extreme fatigue; (2) had poor health in general from a previous bone cancer event; (3) had anxiety and depression and had a prescription of Ativan for those conditions; (4) was seeing a counsellor, and that testifying in a courtroom could trigger an anxiety attack. [ 15 ] The Criminal Code amendments are meant to, in effect, reduce the challenges to and specify the nature of the challenges to a vulnerable adult witness' testimony in deciding whether an accommodation should be granted.

There will always be circumstances where a witness is nervous or anxious about testifying. Recalling stressful events in an unfamiliar environment with a collection of people peering at you would make most people nervous or anxious, but to allow accommodation, the witness' circumstances must be demonstrated to go further than that. Those circumstances must fall within the wording of s. 486.2(2) , (2.1) and (3) . [ 16 ] I have considered the provisions of s. 486.2, the case law presented by counsel, counsel's submissions and Ms.

M.'s affidavit, and I am not satisfied that the evidence presented meets the threshold to allow for accommodation. Unlike the other cases presented, in this case there is no medical diagnosis or treatment regime, there is no indication of an ongoing counselling regime or other assistance, there is no evidence that Ms.

M.'s anxiousness would interfere with her memory, just that it might interfere with her expression of her evidence and, that there is no evidence otherwise about the communication difficulties that she may be facing. [ 17 ] Based on what is before the court, I could dismiss the application, but in the face of defence counsel's request for a voir dire and permission to cross-examine Ms. M. on how the evidence would be presented, I will accede to that request and adjourn the matter to the opening of the trial for the trial judge's consideration of whether accommodation should be granted in the trial.

I will direct that both a screen and the video equipment necessary for accommodation from another room be available on the trial date so that the trial judge can select which form of accommodation, if any, to grant if a voir dire is ordered on the issue. (RULING CONCLUDED)