R. v. G.M. Date:, 2013 BCPC 113

Citation: R. v. G.M. Date: 20130109 2013 BCPC 0113 File No: 34647-1; 34647-2 Registry: IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCarthy (Application for Witnesses to Appear via Video Link) BAN ON PUBLICATION s. 486.4(2) C.C.C.

Counsel for the Crown: C. Proteau Counsel for the Defendant: P.J. Wilson, Q.C. Place of Hearing: [deleted for publishing] , B.C. Date of Judgment: January 9, 2013 [ 1 ] THE COURT (orally): I have before me a Crown application. This application is brought pursuant to s. 714.1 of the Criminal Code . The application is brought in connection with charges against G.M. for two Crown witnesses to appear at the trial by means of a video link. [ 2 ] G.M. is charged on a two-count Information.

Count one alleges that on or about the 10th of March, 2012, at or near A.V. on Vancouver Island [amended for publishing], in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of K.C., a person under the age of sixteen years, contrary to s. 151 of the Criminal Code . [ 3 ] Count two is an allegation that on or about the 10th of March, 2012, at or near [deleted for publishing], in the Province of British Columbia, that he did sexually assault K.C., contrary to s. 271(1) of the Criminal Code . [ 4 ]

Section 714.1 provides as follows: A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness had to be physically present; and (

c) the nature of the witness' anticipated evidence. [ 5 ] In support of Crown's application has been filed an affidavit sworn by Jody Rathbone, who is a legal secretary with Crown Counsel's office in [deleted for publishing]. That affidavit is sworn the 20th of December 2012. In that affidavit it sets out that there are two witnesses that are subject of the application that has been brought by Crown. [ 6 ] I shall refer to them by initials, due to the circumstances surrounding this case. The first witness is R.C. R.C. is the mother of the Complainant, K.C. The second witness is the Complainant K.C. herself.

R.C. and K.C. were, as I understand it, at the time of the alleged offences resident in A.V., British Columbia. Since that date they have relocated and are now residing in H.C. [amended for publishing] Nunavut, the eastern Arctic of Canada. The Complainant, K.C., is 13 years of age. [ 7 ] The trial is scheduled for Friday, February 8, 2013, in A.V., British Columbia. [ 8 ] The affidavit of Ms.

Rathbone deposes, at paragraph 8, as follows [as read in]: If both R.C. and K.C. were required to appear in person to testify, the travel time from H.C. to A.V., British Columbia, would be approximately 24 hours, assuming all travel was proceeding on time. [ 9 ] Attached as Exhibit A to the affidavit of Ms. Rathbone is an itemized costing for the two witnesses, R.C. and K.C., to attend at the trial of this matter in A.V. I will deal with those expenses and the nature of those expenses. [ 10 ] The first expense shown is the airfare from H.C. to Vancouver, British Columbia, return. The cost of that is $5,402.

The flight would be by way of Canadian Northern or Air Canada via Kuglutuk, Nunavut to Yellowknife to Edmonton, Alberta. [ 11 ] Then there would be further airfare from Edmonton, Alberta, then on to Vancouver, British Columbia. [ 12 ] There would be a second leg to the trip, being the airfare from Vancouver, British Columbia, to O.S. [amended for publishing], British Columbia, return. That amount would $648.

That leg would require a flight on KD Air from Vancouver, British Columbia, to O.S., and a shuttle from O.S., British Columbia, to A.V., British Columbia. [ 13 ] There is an allocation for meal expenses for six days, for both persons, on a per diem basis, totalling $576, and hotel expenses on the basis of a shared room for the six days at a cost of $600. The total amount is $7,226. [ 14 ] The nature of the evidence to be provided by the Complainant is essential to the Crown's case.

That evidence, as I understand from Crown's submissions, is the only direct evidence that will be presented with respect to the allegations contained within the Information by way of indictment.

[ 15 ] The attendance of the witness R.C. is also important to the Crown's case. As I understand it, that witness will testify about information disclosed to her by the Complainant, K.C. [ 16 ] There are two other witnesses who Crown anticipates will be called. Both of those witnesses are resident in A.V. and are available to testify in person. [ 17 ] As part of Crown's submissions, it is indicated that since the filing of the affidavit, Crown has made further inquiries as to the availability of a video link being established between A.V. and H.C.

As a result of those inquiries with Court Services in the eastern Arctic area, it has been determined that the likelihood of the witnesses being able to testify from H.C. is not great. As I understand the information that has been provided to Crown, the more suitable location and likely the only practical alternative would be for both witnesses to travel on the available flights from H.C., by way of the various legs that I have already described, to Yellowknife. [ 18 ] There is undoubtedly going to be some cost associated with that.

However, Crown estimates that there will be a significant reduction in the total overall cost of transporting the two witnesses to Yellowknife, rather than all the way to A.V. [ 19 ] It is clear that the time requirements, estimated to be 24 hours to travel all the way from H.C. to A.V., will be substantially reduced also if the witnesses are only required to attend at Yellowknife, Northwest Territories in order to provide their evidence by video. [ 20 ] Crown, in anticipation of both the concerns of the court as well as concerns of the defence, has indicated that the video link which is proposed, from Yellowknife to A.V., can be set up in advance, in order to ensure that it will be trial ready; it is also indicated that there is an opportunity to do a test run of this video link, in order to ensure the compatibility of the systems utilized in Yellowknife, Northwest Territories, and those utilized by the Court Services in British Columbia. [ 21 ] Crown also has pointed out that the provisions of s. 486.2 of the Criminal Code will come into play with respect to the evidence being provided by the 13-year-old witness in this matter.

Section 486.2(1) provides as follows: Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, 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, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. [ 22 ] Crown has indicated that the application yet to be brought under s. 486.2 will in fact be brought and that it will be Crown's submission and election to have the 13-year-old witness in this matter testify by way of a video.

That particular video link, if this application were not to be successful, would be a video link connecting the witness with the main courtroom at the A.V. courthouse. The witness would be in another room located within the A.V. courthouse in order to give her testimony. [ 23 ] Crown has provided a book of authorities. Those authorities are as follows: R. v. Gibson, 2003 BCSC 524 , R. v. Turner , 2002 BCSC 1135 , R. v. Chapple , 2005 BCSC 383 , and R. v.

Denholm, which is correctly cited at 2006 CarswellOnt 7290 , being a decision of the Ontario Court of Justice, the equivalent of the Provincial Court of British Columbia. The decisions bear some formal consideration and review on the record. [ 24 ] The decision in R. v. Gibson is a decision of Mr. Justice B.M. Davies of our Supreme Court. This is a decision arising out of the Smithers registry. It involves an application in the nature of the one brought before me involving an important defence witness. That defence witness had been advised by her physician to avoid the stress of travel for medical reasons.

As I read the case, she was resident in Saskatchewan. The evidence before Mr. Justice Davies supported the contention by Crown that there were certain impediments for this particular witness to travel from her home in Swift Current, Saskatchewan, to Smithers, British Columbia. The defence in that case opposed the application, as it does in the matter before me. [ 25 ] In his reasons for judgment Mr. Justice Davies examined the defence position in opposition to the application.

The position that was raised was the fairness of the trial and for the right of the accused to make full answer and defence and the right of an accused to confront a witness who may testify against the accused. [ 26 ] In that particular decision Mr. Justice Davies was satisfied that, having had the benefit of seeing two witnesses testify by videoconferencing, that the testimony of the witness in this case could be satisfactorily dealt with and that the matter could proceed by having the witness testify by way of videoconference.

At paragraph 9 of this decision he states as follows: In my view, while such problems might affect trial fairness, the mere possibility of such issues arising should not preclude attempts to have a witness testify by way of videoconference if such appearance is otherwise appropriate. [ 27 ] The Crown then refers me to the decision of Mr. Justice Macaulay in R. v. Turner . The Crown refers me to this case, notwithstanding the fact that it is actually an application under a sister

section of 714.1 and that is under 714.2(1). It dealt with a witness who resided in Washington D.C. Notwithstanding the different applicable section, the decision is useful from the analysis of the learned justice in terms of deciding whether or not the matter met certain criteria. In the submission of defence in the matter before me, the criteria in the two sections are slightly different, being more presumptive to granting an order under s. 714.2(1) than in the matter before me brought under s. 714.1 . [ 28 ] Mr. Justice Macaulay did deal with the same concerns that are before me. He noted the essence of the defence objection in the Turner matter was based on the following objections:

(1) The assessment of credibility by means of video link is difficult.

(2) It is difficult to be sure that the witness appreciates the nature of the oath.

(3) The accused's entitlement to a fair and unbiased trial may be adversely impacted by such things as breaks in the testimony. For example, it is difficult to know what is happening in the room or where the witness goes outside of the room during such breaks. [ 29 ] The result of this particular decision was to grant the application, and in doing so Mr. Justice Macaulay provided the following guidance at paragraphs 10 through 12: [10] There can be no doubt that taking evidence by video link is now increasingly a reality in our criminal and civil courts.

Crown counsel has put before me several decisions from trial courts across the country in both civil and criminal matters in which such evidence has been permitted. At least one of the criminal cases, R. v. Dix , predates the amendment to the Criminal Code with which I am concerned this morning. [11] While it cannot be said that the virtual presence of a witness in the courtroom is equivalent to the actual presence, that, with respect, does not appear to me to be the only question.

As I suggested to counsel during submissions, Parliament must have intended that the court receive such evidence except where it is demonstrably contrary to the principles of fundamental justice.

In enacting the section, Parliament must have considered the impact of technology generally on the ability to conduct cross-examination and the ability of the court to assess credibility. [12] As to the assessment of credibility, sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanor during the course of the witness testifying.

In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanor is likely to err. [ 30 ] Mr. Justice Macaulay also provides some helpful suggestions concerning means by which trial judges may make directions to address the third concern and objection raised by defence counsel in that particular case. [ 31 ] Crown has also referred me to the case of R. v. Chapple . That is a case which was an appeal to Mr.

Justice Parrett from a conviction by a Provincial Court Judge on a failure to provide a breath sample upon demand being made, contrary to s. 254(3) of the Criminal Code . That particular case dealt with a number of problems that arose in the conduct of a trial over an extended period of time. [ 32 ] The issue about the fact that one of the witnesses, being a police officer, appeared by video was certainly an important but one of the lesser issues that the learned justice was dealing with in that particular case. However, that case is relied upon both by Crown and defence in this particular matter.

It is relied upon for some of the court’s observations. The observation made by Mr. Justice Parrett is succinctly stated in paragraph 55, where he says as follows: I do not for a moment suggest that courts should be reluctant to avail themselves of the benefit of modern technology, but rather, that careful consideration should first be given to the nature of the evidence, the issues in the particular case and the potential affect of the order on the courts' ability to assess the evidence and the accused's right to a fair trial.

What is crystal clear, however, is that the proper test to be applied does not involve a determination of "the balance of convenience" as the learned trial judge found in the present case. [ 33 ] Mr. Justice Parrett indicated further, at paragraphs 51 and 52: [51] In considering whether to dispense with the usual practice, and to take a witness’ evidence by video link, the court must consider all of the circumstances of the particular case and the three enumerated factors.

Cost savings, in and of themselves, cannot justify such an order without the other factors being considered. [52] The proper consideration of such an application must begin with a consideration of the nature of the witness’ evidence. Where, as here, there are serious issues of credibility to be determined involving the credibility of the witness, a court should, in my view, be very reluctant to deprive the trial judge of seeing the witness physically present in the courtroom during his evidence. [ 34 ] The fourth case that the Crown has referred me to is the decision in R. v. Denholm. [ 35 ] MR.

WILSON: Please accept my apologies for interrupting, Your Honour, but I wonder if we could just stand down for a minute so I can cancel my flight back? I can see I'm not going to make it and I'm wanting to avoid the expense -- [ 36 ] THE COURT: All right. I will stand down for a moment. [ 37 ] MR. WILSON: Thank you. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED)

[38] THE COURT: The final case that Crown has referred me to is the R. v. Denholm case. Again, this case deals with seriouscharges involving an allegation of sexual assault. In this particular case the same type of objections were raised as are before me.

Thelearned justice in that particular case, relying on the basis of that justice's experience with the use of video links in six trials and/orpreliminaries, said he was satisfied that the concerns that were raised by defence could be properly dealt with and that there would be asufficient video link which would permit the proper cross-examination and giving of evidence in chief to proceed. [39] The learned Justice W.F. Fitzgerald states as follows, and I quote from paragraph 5: And also, a trier of fact is not impeded in any substantial or essential way in assessing credibility matters that arise.

It seems to me that inappropriate circumstances the use of the video link ought to be encouraged. [40] The order sought was accordingly granted in that case. [41] Dealing now with the defence submissions with respect to this particular matter. The position advanced by Mr. Wilson is thatfirst of all that this matter, as far as the charges are concerned, will turn squarely on credibility. He characterizes this case, withoutminimizing the seriousness of the charges, as follows: it can be characterized as a "he said, she said" case.

He says that the Crown's casewill either succeed or fail on the evidence of the Complainant and in that regard it will be the credibility and the reliability of thatevidence. [42] He raises a second concern. That is the quality of the video link. That was a concern that was canvassed in the R. v. Gibsoncase to which Crown has referred me. [43] The quality of video was also an issue in the R. v. Chapple case, where Mr.

Justice Parrett observed that there were some minordifficulties, but when taken into account there was a cumulative affect which gave him significant concern about the use of video in thecase that was before him. [44] Defence also points to the concerns raised that were the subject matter of consideration by Mr. Justice Macaulay in R. v. Turnerand specifically the three issues that were raised by the defence in that particular case, which I described above.

It is, as I understand Mr.Wilson's submission, that those are the matters which must be taken into account by this court in determining whether or not theapplication brought by Crown should succeed. [45] Mr. Wilson has also referred me to some separate authorities, and they are as follows: R. v. Ragan (2008), 2008 ABQB 658, 284 C.C.C. (3d) 483, a decision of the Alberta's Court of Queen's Bench; second, Re the Queen and Young (2000), 2000SKQB 419 , 150 C.C.C. (3d) 317, Saskatchewan Court of Queen's Bench; third is R. v. Raj, 2002 CarswellBC 674, a decision ofthe British Columbia Supreme Court; fourth is R. v.

Cardinal, 2006 CarswellYukon 76, a decision of the Yukon Territorial Court. [46] The position advanced by the defence in this application is essentially that Crown has started with a presumption of expense andthe inconvenience as being factors which should be determinative of the issue. It is Mr. Wilson's position that the proper starting pointin this case is the test enunciated in R. v. Chapple by Mr. Justice Parrett, in paragraphs 51 and 52, which I have made reference to above. [47] The Chapple decision was followed by the court in R. v.

Cardinal, and in particular the test that was adopted in that decisionwas that of Mr. Justice Parrett found in paragraph 55 of his decision, to which I refer to above. [48] The next basis for the objection of the defence, in connection with this matter, is founded on the basis of the serious issue ofcredibility being a primary factor for consideration.

Accordingly, in these circumstances the question is whether or not the defence isbeing deprived of a fair and reasonable opportunity in order to cross-examine the witness, if it is only by way of video and not by way ofan in-person attendance by the witness. [49] In that regard, reliance is placed upon the test set out in R. v. Chapple at paragraph 52. [50] I am referred also to the decision in R. v. Raj, and in particular the conclusion reached in that decision in which Mr.

JusticeHunter found, at paragraph 6, as follows: In all the circumstances I have concluded that there is a reasonable likelihood that taking this evidence by video link would impede orimpact negatively on the ability of defence counsel to cross-examine the witness, to use the words of Wright J. in Re The Queen andYoung (2000), 2000 SKQB 419 , 150 C.C.C. (3d) 317 (Sask. Q.B.). In reaching this conclusion I am compelled by the nature ofthe witness' anticipated evidence and its likely significance to the charge.

Hearing this evidence by video link may well compromise theaccused's right to make full answer and defence. I have also considered R. v. Heynen, [2000] Y.J. No. 6, a decision of the YukonTerritorial Court. Based on that, Mr. Justice Hunter refused the application. [51] Building on that, Mr. Wilson has indicated that I should be guided by the decision in R. v. Young.

At paragraph 8 of thatdecision, Justice Wright sets out the following factors which should be taken into account, in considering the application under 714.1: 8 In reviewing this very new provision, it seems to me there are a number of factors that should be considered: (1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross-examine thatwitness? (2) the nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract anysignificant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect

to exhibits and the like and other matters that would not attract any particular objection on the part of the accused's counsel; (3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom; (4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance; (5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, personal life and the like; (6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion; (7) the cost to the state of having the witness attend in person; and (8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial. 9 The above list is not exhaustive.

The points are not arranged in order of importance. More importantly I should note that each application will depend on its particular facts and not all of the factors which I have outlined will have application in each case.

Indeed, there may be only one or two that are of any real importance, such as the requirement that the accused be able to answer the Crown's case against him or her effectively, and not be deprived of that right by virtue of the utilization of "video-linking". [ 52 ] I have taken into consideration the factors that have been outlined by Justice Wright in Young . [ 53 ] I would note that the significant concern of defence counsel in this matter is the ability of the defence to cross-examine. As Mr.

Wilson has aptly pointed out, these are concerns that arise any time that there is a buffer in place or interposed between counsel and the witness, and those buffers may be anything from a screen to a video link or even an interpreter. [ 54 ] Based on the authorities which I have looked at and based on the circumstances of this case, I am of the view that the Crown's application in this matter should succeed, but with some direction. [ 55 ] Clearly, Crown has met some of the factors, in particular the cost issue, as well as the convenience issue. These circumstances are clearly in favour of Crown's application.

The convenience to the witness and the requirement to travel for an extended period of time for what Crown estimates will be examination in chief of less than an hour for each of these witnesses is certainly something that I must properly take into consideration. [ 56 ] The factor that I think is most important in this matter is the fact that the witness, who is only thirteen years of age, may in any event be behind some buffer, as it has been described by Mr. Wilson.

It is most likely, without prejudging an application, that there will be at least interposed between counsel and the 13-year-old witness a buffer which, in Crown's submission, will no doubt be a video appearance. [ 57 ] I am mindful of the concern that a breakdown in the video link between Yellowknife and A.V. may be significantly more detrimental to the proper conduct of the case than a mere interruption of that video link occurring within the A.V. courthouse.

Having said that, the video link, in any event, will have to be tested at least some time in advance of the trial proceeding in order to ensure that it will meet reasonable standards. [ 58 ] In that regard, I am granting the Crown's application, but I am going to impose certain conditions with respect to the pretesting of that system and the availability of defence counsel to make observations of the ability of that system to work between Yellowknife and A.V. [ 59 ] This matter is set for trial on February 8, 2013.

Accordingly, I am going to make an order that prior to February 1st, 2013, Crown will arrange for a pre-trial test run of the video link, at a time convenient to defence counsel or defence counsel's agent, such that there will be an opportunity to observe both the quality of the video and the audio quality of the link between Yellowknife and A.V. or such other location as may be arranged. [ 60 ] If there are concerns as to the quality of that link, either video or audio, then I am granting liberty to defence to bring those concerns before the court; I am going to allow further applications to be heard to deal with those concerns, such applications to be dealt with on or before February 8, 2013.

I grant leave to Mr. Wilson to bring those forward to me and attend by way of videoconference to deal with the matters relating to those particular concerns. [ 61 ] Now, I am going to pause for a moment. Is there any other concern that either Mr. Wilson or Ms. Proteau may have with respect to how that is to be undertaken or accomplished? [ 62 ] MS. PROTEAU: Your Honour, I will continue speaking with Ms. Monroe of the A.V. registry, and I'll find out what times we have available in the next two weeks to do a test run. And then I can send Mr.

Wilson a letter advising of the times, and he can let me know what works best for him. [ 63 ] MR. WILSON: I am content with that, Your Honour, and I don't have any other concerns to express. [ 64 ] THE COURT: All right. Well, then that will form part of my directions with respect to the disposition of this matter. [ 65 ] MS. PROTEAU: Your Honour, I just want to confirm it's with respect to both R.C. and K.C., both witnesses? [ 66 ] THE COURT: That is correct.

[ 67 ] MS. PROTEAU: Yes. [ 68 ] THE COURT: The application was brought on behalf of both. I have made mention of the younger or the 13-year-old witness, but given the relationship between those two witnesses, being mother and daughter, I think in those circumstances it is appropriate that the two of them be dealt with in the same fashion. [ 69 ] MS. PROTEAU: Thank you. [ 70 ] MR. WILSON: Thank you, Your Honour. [ 71 ] THE COURT: All right, thank you. (REASONS CONCLUDED)