R. v. Seward, 2021 BCPC 62

Citation: R. v. Seward 2021 BCPC 62 Date: 20210226 File No: 41552-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRAVIS WADE SEWARD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Patsch Counsel for the Defendant: S. Sheets Place of Hearing: Duncan , B.C. Dates of Hearing: January 15, 17, November 5, 2020, February 22 - 24, 2021 Date of Judgment: February 26, 2021 The Issue

[ 1 ] Mr. Seward is accused of one count of sexual assault causing bodily harm, arising from an incident alleged to have occurred on October 27, 2018. The complainant, Ms. H. has completed her examination in chief, and a portion of her cross-examination has been conducted. Ms. Patsch, for the Crown, applies for an order that she be permitted to complete her cross-examination by video link from a remote location. Mr. Sheets, counsel for Mr. Seward, opposes the application. The Allegation [ 2 ] The following is a

summary of Ms. H.’s evidence in chief. On October 27, 2018, she went to a friend’s house for a social gathering. Mr. Seward picked up Ms. H. at her house and drove her to the friend’s house. He then went down to the basement while Ms. H. visited with her friend and her friend’s partner. They drank some beer. After a while, the friend and her partner passed out on the couch. Ms. H. went to the bathroom. When she opened the door to leave the bathroom, Mr. Seward was standing in the doorway. He seized her by the hair and threw her against the sink.

Her head struck the sink in the area of her right eye and she lost consciousness. When she regained consciousness, she was naked and Mr. Seward was sodomizing her. [ 3 ] The police were called and took Ms. H. to hospital. The doctor who examined her at the hospital observed injuries to her anus and rectum consistent with an assault of the kind which she describes. The Process to Date [ 4 ] Ms. H.’s direct examination began on the afternoon of January 15, 2020 and concluded on the morning of January 16. Ms.

H. was obviously uncomfortable with the process, but remained reasonably calm and was responsive to the questions asked of her. Mr. Sheets began her cross-examination on the morning of January 16. She was visibly uncomfortable. After about 5 minutes of cross- examination, she said that she was suffering from a migraine headache, and that “… everything is getting blurry …”. I adjourned the case to the following day, January 17. [ 5 ] On the morning of January 17, Ms. Patsch advised that Ms. H. continued to suffer from her migraine, and would be unable to attend court on that day.

We proceeded with other witnesses, following which I adjourned the trial and directed counsel to arrange a continuation date with the Judicial Case Manager. [ 6 ] The trial resumed on November 5, 2020. Ms. H. attended and her cross-examination resumed. During the afternoon session on November 5, Ms. H. lost her composure. She complained of nausea and a sore throat. As she was clearly unable to continue, I adjourned the trial. [ 7 ] On November 19, 2020, Ms. Patsch applied for an order that Ms. H. continue her testimony by video link from a remote location. Mr.

Sheets opposed the application, and proposed that, instead, Ms. H. give her evidence in the courtroom, but separated by a screen from Mr. Seward, so that she could not see him while testifying. I acceded to Mr. Sheets’ proposal. [ 8 ] The trial resumed on January 22, 2021. Counsel informed me that Ms. H. was in a witness interview room outside the courtroom, but was extremely nauseous and was throwing up. Being mindful of the prevailing health emergency, I directed that she be referred for a COVID test, and adjourned the case to January 23. [ 9 ] The COVID test was negative, and Ms.

H.’s cross-examination resumed on the afternoon of January 23. She was reasonably responsive for about 45 minutes, after which she complained of a headache. We stood down for 10 minutes to allow her to recover, and resumed. After about 30 minutes, she doubled over in the witness box in obvious distress. She explained that she has a stomach ulcer and needed medication, which is administered by injection at the local hospital. She then threw up in the witness box. I adjourned the trial to allow her to seek medical treatment. [ 10 ] On the morning of January 24, counsel informed me that Ms.

H. had spent the night in hospital, and that she had not been discharged. Ms. Patsch renewed her application and I adjourned the trial. [ 11 ] I think it important to note that Mr. Sheets conducted the cross-examination with proper courtesy and respect. There was nothing in his demeanour, in his tone of voice or in the substance of his questions which could be characterized as aggressive or threatening. The Evidence on the Application [ 12 ] In support of the application, Ms. Patsch tendered an affidavit sworn by Ms. O’Donovan, a Victim Services Worker who accompanied Ms. H. to court on each day of trial.

She describes Ms. H. as being clearly distraught and nauseous in the hallway and the witness interview room. [ 13 ] Mr. Sheets submits that Ms. O’Donovan’s affidavit is insufficient because: (

i) it describes no specific medical condition which hinders Ms. H. in giving evidence; and (ii) Ms. O’Donovan has no qualifications to provide medical opinion evidence. He says that medical evidence from a qualified professional is necessary to support Ms. Patsch’s application, and that it should be dismissed because no such evidence has been tendered. As will become apparent, I do not agree. The Statute [ 14 ] Ms. Patsch presents her application under the authority of

section 486.2 of the Criminal Code , which provides (underlining added): 1. … the judge … shall , on the application of the prosecutor in respect 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 … is of the opinion that the order would interfere with the proper administration of justice.

2. … the judge … may order that the witness testify outside the courtroom or behind a screen or other device … if the judge … is ofthe opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or wouldotherwise be in the interest of the proper administration of justice. A comparison of subsections 1 and 2 makes it plain that Parliament intended to address two different circumstances: a. Subsection 1 is mandatory.

Where the witness is inhibited by a mental or physical disability, the judge must make an order unlessthe judge is of the opinion that the order would interfere with the proper administration of justice. b. Subsection 2 makes no reference to a mental or physical disability. It is discretionary. The judge may make an order if the judgeconsiders that: (

i) the order would facilitate the giving of a full and candid account of the witness’ evidence; or (ii) would otherwise servethe interests of justice. [15] The difference between subsections 1 and 2 is emphasized by subsection 3, which sets out a list of factors to be considered on anapplication under subsection 2. Subsection 3 does not apply to an application under subsection 1. [16] As noted in R. v.

J.Z.S. 2008 BCCA 401; [2008] BCJ No. 1915 (affirmed @ 2010 SCC 1; [2010] 1 SCR 3), where the witness isa child or a person with a disability which inhibits the witness’ capacity to give evidence, the witness is presumed to be entitled totestimonial accommodation. No such presumption applies to subsection 2. [17] For the reasons which follow, I am persuaded to make an order under subsection 2. As a result, I need not consider whether I amrequired to make an order under subsection 1. Mr. Sheets may or may not be correct when he says that medical evidence is necessary tosupport an order under subsection 1.

I leave that question to be decided in a case in which it arises. However, the words of the statutemake it clear that medical evidence is not required to support an order under subsection 2, although it may be helpful in some cases. Subsection 3(

b) expressly requires the court to consider “… the witness’ mental or physical disabilities, if any …” (underlining added). It is clear that the existence of a disability is a relevant, but not essential, factor on an application under subsection 2. I find support forthat conclusion in the decision of my colleague, Judge Dossa in R v. Obelikphya 2012 BCPC 282; [2012] BCJ No. 1741. [18] It is worthy of note that the present

section came into force by an amendment to the statute enacted in June, 2015. Prior to theamendment, the statute provided for testimonial accommodations only where such accommodations were “… necessary to obtain a fulland candid account from the witness …”. The present subsection 2 allows for testimonial accommodations whenever the court “… is ofthe opinion that the order would facilitate the giving of a full and candid account …”.

For a discussion of the significance of theamendment, I refer to R v Dosanjh 2018 BCSC 1625 , 2018 BCSC1625; [2018] BCJ No. 3242 @ paragraphs 8 – 10 and R vGeorge 2020 BCSC 212; [2010] BCJ No. 227 @ paragraphs 17 - 27. At paragraph 10 of Dosanjh, Justice Voith adopted the principlethat “… it would be a rare sexual offence case in which a

section 486.2(2) … order would be declined in relation to a complainant”. [19] The provision for testimonial accommodations does not infringe the right of the accused to a fair trial. There is no constitutionalright to a “face to face confrontation” between the accused and the accuser: George @ paragraph 27. Relevant Factors In This Case [20] Subsection 3 sets out some of the factors to be considered, and empowers the court to consider “… any other factor that the judge… considers relevant”. Addressing the enumerated factors in turn: a. Ms. H. is a mature woman. Age is not a factor. b. Ms. H. has testified that: (

i) she suffered a head injury in a motor vehicle accident some years ago; (ii) she suffers from migraines;(iii) she suffers from a stomach ulcer. She says that each of the latter two are exacerbated by stress, and have been exacerbated by herappearance as a witness in this case. As Mr. Sheets points out, there is no evidence from a qualified medical professional. Havingobserved Ms. H. in the witness box, it is clear to me that she has been suffering real physical distress while giving her evidence, and thatthe cause of her distress is the experience of giving evidence. c.

The offence alleged in this case is a particularly grave, intrusive and humiliating sexual assault. Anyone in the position of Ms. H.would be traumatized by the need to give evidence of it. d. Ms. H. and Mr. Seward were acquaintances, but there is no evidence of the particulars of their past encounters. e. There is no evidence to support a reasonable fear for the future safety of Ms. H. f. There is no evidence to support any reason that the identity of any witness should be shielded from public disclosure. g.

Society has a real and compelling interest in in encouraging victims of sexual assaults to report the events and to participate in theensuing criminal justice process. [21] Having observed Ms. H. in the witness box, I have reached the following conclusions: a. She has put forward her very best efforts to give her evidence, first without any testimonial accommodations and later with thelimited accommodation provided by a screen. Despite her best efforts, she has been unable to complete her evidence. b.

Her inability to do so derives in part from her pre-existing medical conditions, but is primarily because of her revulsion and sense ofshame about the sexual act which she has described. c. It remains to be seen whether the testimonial accommodation sought by Ms. Patsch will enable Ms. H. to complete her testimony. Itmay or may not be sufficient, but it’s worth a try.

d. There is a compelling public interest, recognized by the statute, in encouraging victims to come forward and assist in the trial process. Victims should not be deterred by the prospect of having to give evidence in open court. [ 22 ] For those reasons, the application is allowed. Ms. H. will be permitted to complete her evidence by video from a remote location. February 26, 2021 ____________________________ T. Gouge, PCJ