R. v. Stirling, 2019 BCPC 109

Citation: R. v. Stirling 2019 BCPC 109 Date: 20190507 File No: 40676-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW DAVID STIRLING BAN ON PUBLICATION -

SECTION 486.4(2) CCC ORAL RULING RE APPLICATION FOR TESTIMONIAL ACCOMMODATION OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: S. Richards Counsel for the Accused: E. Costa Place of Hearing: Duncan , B.C. Date of Hearing: April 24, 2019 Date of Judgment: May 7, 2019

[1] THE COURT: Earlier in this trial, the Crown brought an application pursuant to s. 486.2(1) and (2) of the Criminal Code toallow the complainant in these proceedings, who is currently under cross-examination, to testify outside the courtroom. The courtgranted the application with the reasons to be provided at a later date prior to her continuing with her testimony. These are the reasons. [2] The allegation before the court is that the accused sexually assaulted the complainant by forcing sexual intercourse on her.

Theevidence indicates that the parties had known each other for a few weeks before the alleged assault and had been involved in an informalworking relationship. The complainant has testified that on the date in question, she had attended at the accused's residence to performsome work around the house. At some point after the complainant attended, the two agreed that the complainant would perform oral sexon the accused to retire a debt of monies owed by the complainant to the accused.

During this endeavour, the accused, according to thecomplainant, decided he wished to engage in sexual intercourse and despite the complainant's protest and a struggle between the two, theaccused forced sexual intercourse on the complainant. Shortly thereafter, she fled the residence. [3] The complainant's testimony, both in direct and cross-examination, has been extremely difficult. Her mood often shifted frombeing somewhat calm to becoming impatient, agitated, argumentative, angry and, indeed, hostile towards counsel, the accused and thecourt.

She often became agitated by innocuous questions posed by Crown counsel in direct examination. [4] It is also worth noting that during her testimony, she often directed her anger at the accused. At one point during directexamination, she requested Crown counsel to stand in a certain position so she would not have to see the accused. Suffice it to say thesheriffs were on high alert as a result of the complainant's disposition. [5] At times she indicated she needed a break, was going to be sick and was finding the ordeal of testifying overwhelming.

Thecourt attempted to accommodate the complainant by allowing for breaks and adjourning to the next day. When she was last testifyingbefore the court, she became so agitated under cross-examination that she stormed off the stand, out of the courtroom, and did notreturn.

At that time, the court proceeded to hear other Crown witnesses in the hope the complainant could calm herself and be able toproceed with her testimony later in the trial. [6] We are now at the point in the trial when the Crown, having called all its witnesses, intends with the testimonialaccommodation, to continue with the complainant's testimony. [7] The evidence indicates that the source of her difficulties may be caused by various factors, or a combination of same. Theobvious source may be her intense animosity for the accused. She also suffers from ADHD, PTSD, anxiety, bipolar disorder and is aheroin addict.

She indicated during her earlier testimony that she had used heroin while the trial was ongoing. [8] The court is in the somewhat uncommon yet beneficial position in considering the testimonial accommodation request to havehad an opportunity to observe the complainant in the witness box attempt to provide her testimony. It has not gone well. [9] She is clearly a troubled individual who, I am satisfied, suffers from mental disabilities and is struggling to provide herevidence. She attempted to provide her evidence in the traditional manner with considerable difficulty.

It would be an understatement tosay she had considerable difficulties testifying and the ordeal has clearly caused great upset to the complainant. [10] The jurisprudence recognizes the importance of the court striving to treat all participants fairly, improve the truth-seekingprocess and ensure a fair trial and a fair process for all accused persons.

Evidence of all those involved in judicial proceedings must begiven in a way that is most favourable to eliciting the truth. [11] To this end ss. 486.2(1) of the Criminal Code creates a mandatory presumption in favour of testimonial accommodation forwitnesses who may have difficulty communicating their evidence as a result of mental or physical disability unless such an order wouldinterfere with the proper administration of justice. Critical to the assessment is determining whether the testimonial accommodation willenhance or undermine the truth seeking function of the trial process. (R. v.

S.(J.Z.), 2008 BCCA 401; R. v. T.(S.B.), 2008 BCSC 711; andR. v. V.(W.), 2016 ONSC 874) [12] I am satisfied the testimonial accommodation requested by the Crown is appropriate, if not necessary, given the complainant'sstruggles. It is likely the only means by which the court may perform its truth seeking function.

The hope is that placing thecomplainant in a position where she is not in the vicinity of, nor able to see, her alleged assailant will provide her with an environmentthat will allow her to better focus on her evidence. [13] I should say, however, that given my observations of the complainant and her obvious struggles, it may be that noaccommodation will suffice to place her in a position where she is able to control her outbursts and provide evidence in an appropriatemanner.

Nonetheless, I believe that a testimonial accommodation may assist the court in trying this case and would not interfere with theproper administration of justice. While there may be some trial inefficiencies and inconveniences in permitting the complainant'stestimony from another room, such as presenting exhibits or written statements to the witness, I do not believe it would render the trialunfair. Trial fairness is not affected by the inability to cross-examine a witness face-to-face (R. v. Levogiannis, (SCC),[1993] 4 S.C.R. 475).

The testimonial accommodation will not interfere with the fairness of the trial or the accused's ability to make fullanswer and defence and challenge the complainant's testimony. [14] The statutory scheme exists primarily to ensure a witness is afforded recognition of and respect for their disabilities, mental andphysical, and is permitted a testimonial accommodation unless such accommodation would interfere with the proper administration ofjustice. [15] Allegations of the nature in this prosecution can be particularly difficult for such a person when endeavouring to perform thetask of providing evidence relating to an allegation of a traumatic event in the presence of the alleged perpetrator.

Given what the courthas observed and heard of the complainant, and her obvious struggles, it would be untenable to compel her to carry on with her testimonyin the presence of the accused.

[ 16 ] I am satisfied that the testimonial accommodation will not result in an unfair trial for the accused and not impede the truth- seeking function of the trial process.

Not only am I satisfied that the testimonial accommodation sought will not interfere with the proper administration of justice, I believe the accommodation is required to enhance the court's ability to elicit the truth. [ 17 ] Accordingly, the complainant's testimony will continue with the complainant testifying from outside the courtroom in another room at the Duncan courthouse by way of a closed circuit television link. [ 18 ] Although not necessary given my conclusions relating to the Crown's application pursuant to ss. 486.2(1) , I should indicate that had I not concluded the complainant had a mental disability, I would have allowed the Crown's application pursuant to ss. 486.2(2) for many of the reasons articulated above relating to the application pursuant to ss. 486.2(1) .

I believe an order pursuant to ss. 486.2(2) would be necessary to obtain a full and candid account from the complainant of the allegations. She is clearly unable to focus or be civil while testifying in the same room as the accused.

Given her various difficulties and her intense animosity for the accused, it is clear that she is unable to give evidence in the traditional manner. [ 19 ] I am satisfied that due to the nature of the alleged offence, the complainant's obvious struggles, the nature of the relationship between the complainant and the accused, and society's interest to encourage reporting of offences of this nature and the participation of victims in the justice system that the accommodation is needed in this case. [ 20 ] The complainant is, by all accounts, one of the disadvantaged and forsaken members of our community and should not be further marginalized in our court system by requiring her to testify in a difficult environment undermining her ability to provide her account of the incident.

The testimonial accommodation will enhance her ability to provide a full and candid account of her complaint and is in the interest of the proper administration of justice. (REASONS CONCLUDED)