R. v. Glover, 2021 BCPC 125

Citation: R. v. Glover 2021 BCPC 125 Date: 20210504 File No: 35060-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEPHEN ANTHONY GLOVER ORAL RULING ON CROWN APPLICATION RE

SECTION 714.1 C.C.C. OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: K. Costain , by phone Counsel for the Defendant: A. Turton, Q.C. Place of Hearing: Terrace , B.C. Date of Hearing: May 4, 2021 Date of Judgment: May 4, 2021 [ 1 ] This is my ruling with regard to the BC Prosecution Service’s Application to a Judge pursuant to s. 714.1 of the Criminal Code

to allow Constable Evelyn of the RCMP to testify at the trial by way of videoconference. [ 2 ] Stephen Anthony Glover is charged with three counts in Terrace Court Information 35060-1, all of which are alleged to have occurred on February 1, 2020, in Terrace, B.C.: Count 1: did fraudulently personate Michael Vaccher, with intent to gain advantage for himself, contrary to Section 403(1) (

a) of the Criminal Code , Count 2: did obtain or possess another person’s identity information with intent to commit an indictable offence that includes fraud, deceit, or falsehood as an element of the offence, contrary to subsections 402.2(1) and 402.2(5) of the Criminal Code , Count 3: did possess a non-restricted firearm without being the holder of a licence under which he may possess the firearm, contrary to Section 91(1) of the Criminal Code . [ 3 ] The prosecutor has told the court that credibility is not in issue with regard to Constable Evelyn’s evidence.

Defence counsel is not sure if credibility is or is not in issue with regard to Constable Evelyn’s evidence, because defence counsel has not received full disclosure, despite the in-custody trial scheduled to start on May 17, 2021. [ 4 ]

Section 714.1 states: A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would 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 the evidence to be given by audioconference. [ 5 ] As I indicated earlier during argument, Justice Duncan in the R. v. Zamora , 2020 BCSC 1259 , decision recently had occasion to consider an application by the prosecutor to have a police witness testify by videoconference.

At paragraph 26 in Zamora , Justice Duncan adopted the reasoning of the Nova Scotia Court of Appeal and stated: [26] The starting point is that the attendance of a witness at trial is the norm and an order under s. 714.1 is the exception. The Nova Scotia Court of Appeal, in R. v. S.D.L. , 2017 NSCA 58 , reviewed the jurisprudence concerning the

section and proposed a set of guidelines for trial judges in that province: [32] … 1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice. 2. That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice. 3.

When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling. 4. The more significant or complex the proposed video link evidence, the more guarded the court should be. 5. When credibility will not be an issue, the test should be on a balance of convenience. 6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross examination be required, that could be done by video link. 7.

When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited. 8. Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify “in a courtroom…or at the offices of Victims’ Services…”. To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom. [ 6 ] The credibility of the complainant is not the issue here.

Constable Evelyn is not the complainant. According to Ms. Costain, Constable Evelyn’s evidence may be, for lack of a better term, thought of as peripheral. That is: Constable Evelyn’s evidence will perhaps assist the court by putting other witnesses' evidence into context.

[ 7 ] However, as I indicated before, the Nova Scotia Court of Appeal did say, and Justice Duncan adopted this, that barring unusual circumstances, there should be an evidentiary foundation supporting the request, usually by way of Affidavit . The BC Prosecution Service did not file an Affidavit in the present case. [ 8 ] Also adopted by Justice Duncan was that when videoconference evidence is authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process.

If unsatisfactory, the court should revisit the decision authorizing the video testimony. In the present case, Ms. Costain proposes that Constable Evelyn’s evidence is going to be through the court video system. It is just a question of whether it will come from the RCMP detachment or the courthouse. Therefore, I am not worried about that aspect of the application. [ 9 ] As I stated at paragraph 24 in R. v. De Bartolo , 2020 BCPC 220 , and at paragraph 6 of R. v.

Le , 2021 BCPC 104 , I am of the opinion that the number one factor for consideration by the Court is, as set out in s. 714.1 (e), the accused's right to a fair and public hearing. [ 10 ] What does worry me in Mr. Glover’s case, to be frank, and this is hopefully an unusual circumstance given the trial is supposed to start in 12 day’s time, is the fact that defence counsel does not have the disclosure they need in order to properly prepare for a trial. In these limited and unique circumstances, Ms. Turton is unable to say, "I agree with Ms. Costain. There is no issue of credibility." Ms.

Turton suspects that there will not be. Ms. Costain is hopeful that once Ms. Turton has reviewed all the disclosure, they can come to some sort of agreement of facts and Constable Evelyn may not even need to be called as a witness, but until Ms. Turton has full disclosure, she cannot say that. [ 11 ] So, with the greatest of respect to the Crown, because credibility may be in issue, this is not a case where the test to be applied by the court is “on a balance of convenience”.

Therefore, I am of the view that I must apply the higher test in this case of “on a balance of necessity”, as set out by the Court of Appeal in Nova Scotia and adopted by Justice Duncan here in British Columbia. [ 12 ] In all the circumstances, given the lack of an Affidavit and given the lack of disclosure provided to defence counsel, I am not prepared at this point to authorize Constable Evelyn to provide his evidence by videoconference. The BC Prosecution Service has not met the test of necessity. So the application is dismissed. [ 13 ] However, and I want to make this clear, Ms.

Costain, once disclosure is provided to your friend, you are free to bring another s. 714.1 application if Ms. Turton has told you that she has reviewed the disclosure and is in a position to either agree or disagree with your s. 714.1 application. [ 14 ] CNSL K. COSTAIN: Certainly, Your Honour. [ 15 ] THE COURT: I do not know if that assists you or not because Constable Evelyn might have to get on the road a day or two earlier. I do not know. I will leave that up to you, but perhaps you can let somebody in your office who has control of disclosure know that the sooner you get disclosure to Ms.

Turton the better for everybody, including possibly for Constable Evelyn. [ 16 ] In the meantime, Application to a Judge dismissed. (RULING CONCLUDED)