R. v. Hodgkinson, 2019 BCPC 94

Citation: R. v. Hodgkinson 2019 BCPC 94 Date: 20190423 File No: 41191-1-K Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ALAN HODGKINSON RULING ON S. 486.2 APPLICATION OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Fontaine Counsel for the Defendant: T. Morino Place of Hearing: Duncan , B.C. Date of Hearing: April 23, 2019 Date of Judgment: April 23, 2019 Introduction

[ 1 ] THE COURT: David Alan Hodgkinson has been charged with the assault of an individual named as Barbara Woeste. The offence is alleged to have occurred on November 2, 2018, at or near Chemainus, British Columbia. That is an offence contrary to s. 266 of the Criminal Code . [ 2 ] The Crown has brought on an application pursuant to s. 486.2(2) of the Criminal Code . That is what is commonly referred to as a "testimonial accommodation” provision for witnesses.

By way of the application, Crown is seeking to have a witness known as Alison Stull testify by way of closed-circuit TV from a room outside of the courtroom set for the trial of this matter. [ 3 ] Ms. Stull is not the complainant in this matter, but she is described as a "Good Samaritan" witness who Crown indicates was driving by and stopped when she witnessed an interaction between the accused and the complainant. For the purposes of this application, Crown has also informed the court that the complainant has been uncooperative. Crown has not issued a subpoena for her attendance.

It is anticipated that she will not be showing up for the trial of this matter. Basis for the Crown Application [ 4 ] In support of the application brought by the Crown, it has produced and filed with this court an affidavit of Alison Stull. That affidavit was sworn on March 27, 2019 and filed on April 23, 2019 ( the “Affidavit”). [ 5 ] In the Affidavit material, Alison Stull deposes that she has what she describes as a "diagnosed anxiety disorder" and she suffers from a “panic disorder”. [ 6 ] In paragraphs 3 and 4 of her Affidavit, she deposes as follows [as read in]: 3.

When I have a panic attack, I physically experience: sweating, racing heart, difficulty breathing, crying, and I lose the ability to focus. 4. I have been treated for anxiety by Dr. Broere for the past four years and I have a prescription for Ativan to help me when I have a panic attack. [ 7 ] Attached to the Affidavit of Alison Stull as an exhibit is a confirming note from Dr. Broere, her family doctor, in which he confirms that Ms. Stull does suffer from anxiety and that having to testify in open court will increase the symptoms. [ 8 ] In Ms.

Stull's Affidavit, she goes on at paragraph number 6 to depose as follows [as read in]: 6. I am feeling very anxious about having to appear in a courtroom to testify and I am concerned that physically being in the courtroom will cause me to have a panic attack. [ 9 ] In the final paragraph of her Affidavit, Ms. Stull deposes further as follows, and I quote [as read in]: 7. I make this affidavit to the court that I may testify with the assistance of video conferencing and to reduce the possibility of having a panic attack and for no other improper reason.

Defence’s Position on the Crown Application [ 10 ] Defence opposes the application for this testimonial accommodation and in that regard defence suggests that this is not a case where Crown has met the onus of bringing Ms. Stull within the testimonial accommodation provisions found under s. 486.2(2) of the Code . Defence also indicates that given that Ms. Stull does not know either the complainant or the accused, this lack of relationship should be taken into account when considering whether testimonial accommodation should be granted.

Defence suggests that the lack of knowledge of or any relationship with these two individuals should tip the balance in favour of having Ms. Stull testify in open court without the assistance of any testimonial accommodation. [ 11 ] Defence also suggests that this is a situation where Ms. Stull reports an anxiety condition which, in itself, is not being questioned by Defence; but there is a suggestion by defence that there should be something more before the court to confirm the extent of Ms.

Stull’s anxiety issue and whether her type of anxiety or panic will actually be triggered by testifying in court, or because testifying in court is inherently stressful she will only find it stressful to testify in open court without accommodation.

In that regard defence suggests that there should be significantly more medical evidence from either a psychologist or a psychiatrist in order to support Crown’s the position that this witness requires testimonial accommodation because of her anxiety disorder condition and her panic disorder. [ 12 ] Hence defence seeks to have the application brought by Crown dismissed. Provisions of the Criminal Code [ 13 ] As I noted above, Crown has brought on this application pursuant to s. 486.2(2).

Section 486.2 was amended effective July 22,

Section 486.2 now reads as follows: 486.2

(1) Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such 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, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

(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, beforethe proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, toany 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 undercovercapacity, 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's identity if they have had, have or will have responsibilities relating to nationalsecurity or intelligence; (

g) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justiceprocess; and (

h) any other factor that the judge or justice considers relevant.

(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order undersubsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with thatsubsection.

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangementsare made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television orotherwise and the accused is permitted to communicate with counsel while watching the testimony.

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2). [14] I note that prior to the amendment in July of 2015, subsection (2) of s. 486.2 read as follows:

(2) Despite

section 650, in any [application] against an accused, the judge or justice may, on application of the prosecutor or 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 theaccused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the actscomplained of. [Emphasis added] [15] I further note that the previous provisions in subsection (3) have been expanded by the present wording in subsection (3) andspecifically subsections (3)(e), (f), and (

g) have been added as factors to be considered. Provisions relevant to this case [16] Crown places reliance on the provisions of subsection (3)(g), namely "society's interest in encouraging the reporting of offencesand the participation of victims and witnesses in the criminal justice process" as the first basis of their application. [17] I also understand that reliance is being placed on subsection (b), being the witness's mental or physical disabilities, if any. Inthat regard, of course, reliance is being placed upon Ms.

Stull's diagnosed anxiety disorder and her propensity to suffer from a panicdisorder, as well as the accompanying physical symptoms which are set out in paragraph 3 of her affidavit. Case authorities considered [18] Crown has referred this court to two decisions. The first is R. v. O'Hare, 2016 BCPC 362 , [2016] B.C.J. No. 2466. The other decision is the decision of the Honourable Judge Dossa in R. v. Obelikpyha, 2012 BCPC 282. A further decision that I havereviewed and referenced is the decision of R. v. Phillips, 2019 BCPC 67, [2019] B.C.J. No. 616. [19] I note that both the R. v. O'Hare decision and R. v.

Phillips are my own decisions and both deal with these types of applications. R. v. O'Hare [20] The O'Hare decision is similar in nature to the application brought by Crown in this matter. In that particular case, the chargesagainst Mr. O'Hare were offences contrary to subsection (3) of s. 372 of the Criminal Code, that is essentially a charge of, without lawfulexcuse and with intent to harass a person, an accused repeatedly communicates or causes repeated communications to be made by meansof telecommunication. [21] In R. v. O'Hare, the principal witness sought testimonial accommodation.

There was before the court an affidavit of thatprincipal witness which indicated she suffered from an anxiety disorder and depression and was under medication for that type of

disability. There was also evidence before the court that the complainant had never actually seen the accused and was fearful that the actual viewing of the accused would cause her an anxiety attack and impact on her overall health. [ 22 ] There was also an indication that that principal witness had a history of suffering from heart palpations in stressful situations. [ 23 ] Accordingly, in that particular set of circumstances, the order for accommodation was granted on the basis of the evidence and information before the court as it related to the s. 486.2(3) factors. R. v.

Obelikpyha [ 24 ] The second decision is R. v. Obelikpyha . In that decision, the Honourable Judge Dossa granted an order for testimonial accommodation under s. 486.2(2). That case involved a young complainant of age 18. She did not have physical or mental disabilities, but the nature of the offence was an allegation of sexual assault. The accused was a stranger to that principal witness prior to the incident and there was no subsequent interaction between them.

During the course of the trial, the witness became very fearful of the accused, and when she tried to give her evidence, she was feeling nauseous, vomiting, and crying, and felt she was under the accused's control.

She found it difficult to return back to the courtroom and was unable to continue to provide her evidence in the courtroom. [ 25 ] As a result of the circumstances in that case, and having had the opportunity of witnessing in person the performance of that witness, the court ordered testimonial accommodation and permitted the complainant in that case to testify outside of the courtroom by way of a television connection. R. v. Phillips [ 26 ] The third decision of R. v. Phillips involved an application by Crown seeking to have testimonial accommodation for the complainant.

The charge against the accused in that case was an allegation that Mr. Phillips, in the course of committing an assault of the complainant, a Mr. Pan, did carry, use, or threaten to use a weapon or an imitation weapon, being an offence contrary to s. 267 (

a) of the Criminal Code . The allegation is that the weapon named in Count 2 of the information was a commercial construction staple gun. [ 27 ] Testimonial accommodation was sought by Crown on the basis that Mr. Pan, the principal witness was fearful of the accused in that case. Crown placed considerable reliance upon a victim impact statement which suggested that Mr.

Pan, the complainant, was both fearful of testifying in court, but in particular was fearful of the accused with whom he had had a prior working relationship. [ 28 ] In that case, Crown relied on the victim impact statement, together with statements which were made directly to Crown counsel by way of a telephone communication about Mr. Pan’s fear of testifying in court. In that particular case, defence also sought to have the Crown's application for testimonial accommodation dismissed. [ 29 ] In R. v.

Phillips it was determined by the court that there was a lack of sufficient evidence before the court in order to grant the order being sought. [ 30 ] First of all the victim impact statement was given by Mr. Pan some several months prior to the trial date and shortly after the alleged offence had occurred. In it Mr. Pan indicates that at the time of giving his victim impact statement he was no longer “scared” of the accused.

The court accepted the argument proffered by defence that this was a case in which there was both a lack of evidence of ongoing fear of the accused on the part of the complainant and a lack of ongoing fear which would prevent the witness from testifying in a reasonable manner. It was also determined by the court that this was a case where the constitutional right to face and to hear an accuser in a courtroom outweighed the alleged fear on the part of the complainant, Mr.

Pan. [ 31 ] Therefore, the general practice of testimonial accommodation not being afforded to every witness prevailed in that case, because Crown failed to adequately establish the need for the witness accommodation pursuant to s. 486.2.

Analysis [ 32 ] Having reviewed the case authorities that I have mentioned above, I am satisfied that Crown has, in this situation, met its onus on a balance of probabilities to establish that the order for testimonial accommodation for Alison Stull has been met. [ 33 ] In the present case before me, there is satisfactory evidence that establishes that this witness does have a diagnosed and ongoing panic disorder and an anxiety disorder.

I am satisfied, on the basis of the materials before me, that there will be an advantage to her testifying outside of the courtroom in order to facilitate this witness giving a full and candid account of the acts complained about, as contemplated under subsection (2) of s. 486.2. [ 34 ] I am satisfied this is not a situation where the witness would be suffering from mere nervousness about providing open-court testimony. [ 35 ] I am also satisfied that the utilization of closed-circuit TV, which occurs on many occasions in the Duncan Courthouse, will permit a proper cross-examination of this principal witness and its use will not negatively impact nor cause prejudice to the accused in this case.

Conclusions and decisions [ 36 ] In my view, on the basis of the information before this court and based upon all of the above, and my review of the case authorities, both referred to in this decision as well as other case authorities referenced in the cases referred to above, I am of the view that an order for testimonial accommodation for Alison Stull should be granted. There will be an order accordingly. [ 37 ] That concludes my reasons with respect to this matter. (REASONS CONCLUDED)