R. v. Walsh, 2023 MBPC 2

CITATION: R. v. Walsh, 2023 MBPC 2 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) L. Campbell, ) ) for the Crown – and – ) ) ) David Walsh ) ) S. Gallop, for the Accused ) ) ) Reasons for Decision ) Delivered: January 4, 2023 KRAHN, P.J. Introduction [1] The Crown seeks an order permitting a witness, a loss prevention officer, to testify by video from Surrey, British Columbia forthe trial of Mr. Walsh on three counts of theft under $5000. Mr.

Walsh is opposed to such an order arguing the Crown’s evidence fallsfar short of establishing a legitimate basis for the witness to testify by video and to do so would compromise the fair trial rights of Mr.Walsh, particularly since the witness will provide some eyewitness identification evidence. [2]

Section 715.21 of the Criminal Code sets out the starting proposition that court participants should appear in a proceeding“personally”, except as otherwise provided in the Criminal Code. While some cases have questioned whether “personally” means “inperson” (R. v. Polmateer, 2022 ONCJ 221 at 39, 52; R. v.

Singh, (NL PC) at paragraphs 38-46), given the context ofthis provision amongst other provisions which set out criteria for a court to consider when allowing a court participant to appear by avideo or audio conference, I do find the starting point is that all court participants should do so by physically appearing in the courtroom.However, recent amendments in a myriad of sections of the Criminal Code have continued to see the expansion of video and audioappearances.

Section 715.22 explains these provisions are meant “to serve the proper administration of justice, including by ensuring thefair and efficient proceedings and enhancing access to justice.” [3] The global pandemic saw the application of these provisions in numerous cases when the necessity of travel restrictions,quarantine requirements and the suspension of in-person court appearances, consistent with public health directions, necessitated remoteappearances by court participants.

The Crown argues that experience has demonstrated how remote appearances facilitated access tojustice and the continued use of video appearances for witnesses can continue to expand access to justice and modernize the courtsystem. [4] Mr. Walsh emphasizes there are no special, personal circumstances which necessitate the witness testifying by video. He saysa video appearance is still exceptional and in this case, a video appearance will make it difficult for the defence to cross-examine thewitness on a number of video surveillance clips and a photograph taken by the witness.

He says there is no “need” to accept videoevidence, especially when there is a significant risk to his ability to test the evidence in that format and therefore have a fair trial. [5] This decision will set out and discuss how the factors outlined in the Criminal Code apply in the circumstances before me andwhile doing so, discuss the nature of the evidence that can be relied on in an application for a witness to appear by video.

I haveconcluded it is appropriate in all of the circumstances for the witness to testify by videoconference, subject to a testing of the technologyin a practice session in advance of the trial. Factors to Consider in Allowing Video Evidence [6]

Section 714.1 of the Criminal Code allows a witness to provide evidence by audio or videoconference if a Court is of theopinion that it would be appropriate in all the circumstances. The

section sets out a number of considerations for the Court to assess. Iwill proceed to consider the applicable factors set out in

section 714.1. 1. The location and personal circumstances of the witness [7] The witness Pulak Rajan Talukder now lives in Surrey, British Columbia, three provinces away from Manitoba. The Crownpoints out this is a two and a half hour flight or 23½ hour drive to Winnipeg. Mr. Talukder now works as a traffic coordinator with

Revenue Canada, and would have to miss some days at this employment due to travel and the court appearance. A video appearancewould reduce the amount of time he would have to miss work and the personal travel time to attend Winnipeg for the trial. [8] Counsel for Mr. Walsh points out there is no direct evidence Mr. Talukder lives in BC, that this is double hearsay in theaffidavit filed by the Crown. The Crown relies on an affidavit by Jennifer Bristow, a person employed as a File Manager with theManitoba Prosecution Service.

The affiant says she learned from Larissa Campbell (counsel appearing for the Crown on this application)the witness now lives in Surrey, British Columbia. The affidavit does not specify how it is Ms. Campbell knows this information. Mr.Walsh argues I should give it no weight. I note the Provincial Court’s Practice Directive 4.03 does specify the source of informationshould be set out in an affidavit. [9] I do accept Mr. Talukder lives in Surrey, British Columbia. The subpoena filed by the Crown as an exhibit on this applicationattests to the fact he was served by the Surrey RCMP, British Columbia.

The address on the subpoena for the witness is Surrey, BritishColumbia. Nature of Evidence Required on an Application to have a Witness Appear by Video [10] Let me comment briefly on the nature of the evidence on applications such as these. All of the cases filed by both counselconfirm there must be a proper evidentiary foundation before the Court on an application such as this one (R. v. Gordon, 2021 SKQB131 CanLII at para. 9, 10; R. v. G.R., 2022 NUCJ 32 at paras. 4 and 5; R. v. Issakiark, 2021 NUCJ 36; R. v. Munro, 2022 BCPC48 at para. 19; R. v. R.W., (NL PC) at para. 9).

I agree that best practices would be counsel file an affidavitthat covers all of the criteria in

section 714.1 and the information they rely on to satisfy those criteria, particularly when the applicationis contested. The affidavit should set out the source of the information presented. In some of the cases filed, the person who was beingasked to testify by videoconference testified by video on the application (R. v. K.Z., 2021 ONCJ 321; R. v. Barrett, 2021 BCSC 615; R. v.Zamora, 2020 BCSC 1259) or an affidavit from the witness was filed (Barrett).

This is an excellent way to proceed because it allows aCourt to decide based on its own observations, the suitability and quality of the technology. [11] I note that the Provincial Court’s Practice Directive 6 requires an application if an Order from the Court is being sought. TheCrown filed the application in this case as directed by a case management judge.

Practice Directive 6.07(1) says an application “may” besupported by an affidavit and allows for the form and content of the affidavit to be modified in accordance with other statutes, provisionsor judicial decisions. [12] However, best practices or the best evidence is not necessarily the only way in which an “evidentiary foundation” can beplaced before a Court. In R. v.

Hoyles, 2018 NLCA 46, the Newfoundland Court of Appeal, in the context of applications to have awitness under the age of 18 testify with a support person or from outside the courtroom or behind a screen, said formal evidence is notalways required to support such an application. The Court went on to say, While a judge’s exercise of discretion must be properly exercised, and must have some proper basis, it can be properly exercised on thebasis of the record before him or her and submissions made…This is not to say that formal evidence is never necessary, or that it is not agood idea.

Rather, it is to say that trial judges make proper discretionary rulings day in and day out in the absence of formal evidence. (atparagraph 11) [13] A helpful review of the authorities on the nature of the evidence in a variety of criminal contexts can be found in R. v Zakuti,2021 BCSC 2309 . In Zakuti, the Court accepted the submissions of counsel in deciding to allow a witness to testify fromoutside the courtroom by closed circuit television.

I adopt the analysis from Hoyles and Zakuti. [14] I note that bail applications in this province, where decisions are made that impact the liberty of the accused, are made basedon submissions of counsel and counsel’s professional obligation to provide accurate information to the Court. In R. v. SLC, 2020 ABQB515, a trial judge considered an application from the Crown for a witness to testify by video from an undisclosed location in theprovince. The basis of the application were sections 714.1 and 486.2(2) of the Criminal Code.

The Court held that counsel’s submissionscould provide a proper evidentiary basis for the determination of the application (at paragraph 17). In SLC the Court relied on theconclusion of the Alberta Court of Appeal in R. v. Smith, 1993 ABCA 167, where the Court said: There is no profit in ignoring the fact that the unsworn statements of counsel, as officers of the Court, are a frequent and necessaryevidentiary source in many aspects of the administration of criminal justice, routine and otherwise.

We have in mind bail matters,adjournments and remands, sentencing and publication bans, one of which very properly issued at the outset of this preliminary hearingaccompanied only by the request of counsel. (at paragraph 6) [15] In the application before me, I questioned Crown Counsel about her contact with the witness. She prefaced her comments witha reluctance to “give evidence” but confirmed she had spoken with the witness on videoconference and they had electronically shared adocument. I accept her submission as supplementing the affidavit evidence the Crown filed with the Court.

Her submission is consistentwith the affidavit and the clear conclusion I had already reached in reading the affidavit, the information about Mr. Talukder comes fromMr. Talukder. For example at paragraph 26, the affiant says, “Talukder advised” Ms. Campbell he had internet access and the ability touse Microsoft Teams. [16] Mr. Walsh points out, other than the witness’s employment situation, there are no other personal hardships for the witnessestablished by the Crown’s application. Mr. Walsh points out there is no “need” for the witness to testify by video.

The case before thecourt is not one like some of the cases counsel relied on where significant personal, health and family impacts or time commitments,including extended quarantine requirements for the witness were established. I agree, other than the travel time and missing work, noother personal circumstances of the witness which favour video appearance have been identified. 2. The costs that would be incurred if the witness were to appear personally [17] The affidavit filed by the Crown relies on the experience of Ms.

Bristow, who is responsible for issuing subpoenas and makingarrangements for witnesses to attend court. Ms. Bristow attests she has made inquiries into Mr. Talukder’s travel arrangements. She says

there is a direct flight from Surrey to Winnipeg. She concludes the costs of travel, accommodations, meals for Mr. Talukder “aresignificant.” Mr. Walsh responds the absence of any actual costs makes this information meaningless. The Crown explains the travelarrangements have not yet been made pending this Court’s decision on this application, and they are subject to change based on flightavailability. Mr. Walsh also points out there is no information in the Crown’s application on whether Mr. Talukder’s employer willcover his wages, if he is absent for court purposes. [18] Mr. Walsh relies on R. v.

SW, 2021 MBPC 10 (unreported) at paragraph 19, followed in R. v. Prince, November 30, 2022,MBPC where the courts concluded since no direct costs were borne by the witness, the expense to Crown or state was not a factor infavour of the video appearance. He also relies on R. v. De Bartolo, 2020 BCPC 220 at paragraph 34, where the Court concluded thecosts to the government were irrelevant, as it was part of the cost to operate the justice system.

In my view, those findings can berestricted to the facts and the circumstances before the Court. [19] However, if they do stand for the proposition that costs to the Crown or government can never be a factor in favour of a videoappearance then I take a different view for the following reasons. The wording of this consideration in the Criminal Code does not referto costs to the witness, specifically. I also rely on the principles that animated the Supreme Court of Canada’s decision in R. v. Jordan,2016 SCC 27 .

The justice system, like every other social system, has a finite amount of resources and these must be usedefficiently (for example, see Jordan at paragraphs 116 and 117). All participants in the justice system have a shared responsibility toensure the prudent and careful use of public funds that finance that system. If a reasonable, suitable and cheaper alternative to an in-person appearance for a court participant is available, this should factor into the analysis under

section 714.1. If the costs to the Crown orstate are always irrelevant or a neutral factor, than this factor becomes virtually meaningless in the assessment in many cases as theCrown will always bear the transportation and accommodation costs to have a witness attend court. Principles of statutory

interpretationdirect a court to interpret the provisions in such a way as to give them meaning and effect. [20] I note in R. v. Heynen, 2000 YTTC 502 (Yukon Terr. Ct.), a decision focused on an earlier version of 714.1 made 22 years ago,the Court said at paragraph 324: The decision to develop video services must be made in the face of two realities. First, the judiciary has a pressing responsibility toreduce the costs of litigation to both the litigant and the taxpayer. We cannot demand to be “Maitre Chez Nous” and not take on theburden of being responsible for the economical use of public funds.

Similarly, we need to make much greater effort to minimize thenegative experiences of witnesses, upon whom the entire court process depends. I agree with this sentiment. [21] In my view, this factor requires the Court to engage in some cost-benefit analysis. In R. v. Allen et al., 2007 ONCJ 209, DuncanJ. described

section 714.1 as permitting the court “to receive evidence by video-link upon conducting a sort of distance-cost, benefit-prejudice analysis.” (at paragraph 9) [22] I agree with Mr. Walsh that it would have been of greater assistance to me to have more specific information about the actualtravel and accommodation costs put in the affidavit. There would have been some reasonable range of anticipated costs that were known.However, I accept the evidence placed before the Court establishes the cost of returning Mr. Talukder to Winnipeg will be significant.

Itake judicial notice of the fact hotel rooms and air travel are not trifling costs. We live in a large country and anyone who has engaged ininter-provincial travel on airlines will have experienced these costs are not insignificant. [23] The cost can be both financial and the cost on the witness’s time to travel to Winnipeg to testify in person. The trial is set for aFriday.

It is reasonable to conclude that at a minimum the witness would have to travel to Winnipeg on Thursday, testify on Friday andreturn home Friday evening or on Saturday, depending on flight availability, assuming there are no weather or other reasons for flightcancellations which seems to be a not infrequent feature of air travel these days. This does involve some time commitment for the witnesswhich is considerably greater than if the witness was still a resident of Winnipeg. 3. Nature of the witness’s anticipated evidence [24] The Crown says Mr.

Talukder observed the incident, secured video evidence from Home Depot, took a photograph of theculprit on one incident and participated in a photo lineup prepared by the police where he identified a person. The Crown will not rely onthe witness for “in dock” identification but will be relying on the photo lineup identification as well as the video surveillance evidence. Apolice officer is expected to do the in-court identification. The Crown says a good portion of the witness’s evidence will be hisidentification of the surveillance videos and having the witness comment on what is happening in the videos.

The Crown may rely onrecognition evidence from this witness. The Crown says very little changes whether the witness appears by video or in person, as theCourt will be required to view the video surveillance evidence, the photo lineup and photographic evidence, either way. The Crown,relying on R. v. Nikolovski, (SCC), 1996 CarswellOnt 4425, [1996] 3 S.C.R. 1197 will ask the Court to rely on its ownviewing of the surveillance video and photographic evidence to identify the accused as the perpetrator of the thefts. [25] Mr.

Walsh emphasizes it is the reliability of the evidence which is at issue and this can only be properly tested with the witnessappearing in person. He points to comments in other cases, that if the issue before the Court is one of identification, this evidence may beproblematic by videoconference (see R. v. Munro, 2022 BCPC 48 at paragraph 13; R. v. Barnett, 2021 BCSC 615 at paragraph 22). I donote that in Munro and Barnett the issue before the Court was not one of identification. I appreciate if the Crown was seeking to place“in dock” identification before the Court by videoconference, this would be a challenge.

But the nature of the evidence must be evaluatedbased on the specific circumstances appearing before me. [26] The Crown says the Court should take judicial notice of the screen share function of Microsoft Teams which will facilitate theability of the witness to see documents and comment on documents or videos. The Crown points out in R. v. K.Z., 2021 ONCJ 321 atparagraph 23 the judge commented the “share” function on Zoom has become routine in criminal trials and allows for witnesses tocomment on documents and videos, although the judge notes it is still early days. Counsel for Mr.

Walsh points out none of thisinformation appears in the affidavit evidence filed by the Crown and the Court should not take judicial notice of the screen sharefunction.

[27] I have already commented on the flexible approach to the evidentiary foundation that should be taken on applications such asthis one. As a result, I accept the information from the Crown that she has spoken with the witness using Microsoft Teams and shared adocument with him using a feature on that platform.

I also find, after more than two years of experience necessitated by a globalpandemic with video platforms in all manner of court business, societal communications, including public health news conferences andonline educational conferences, it is appropriate to take judicial notice the videoconference platforms allow two participants to share adocument or video, so that one party can see what the other party sees or wishes to share.

As in K.Z, supra, with a practice session, I amsatisfied the evidence can be presented and tested in a way which would allow all court participants to see the evidence and comment onit, both in direct and cross-examination. In R. v. Zamora, 2020 BCSC 1259 at paragraphs 19-23, the Court explored successfully awitness’s ability to comment on physical and video evidence while the witness appeared on a videoconference. [28] Mr. Walsh argues the Crown’s material is insufficient as the affidavit does not identify how many video clips will be sought tobe entered as evidence by the Crown.

He does agree he has received full disclosure of the case against him. The Crown responds that shedid advise counsel, prior to a previous trial date on these same matters which did not proceed when Mr. Walsh did not appear, sheintends to rely on three videos. The Crown says she disclosed the three video clips she will be presenting as evidence on December 2,2022. Again, I accept the Crown’s submission as reliable information I can accept, even though it does not appear in the affidavit filed.

Ialso find if the technology works for one video, the fact there are three videos is immaterial, as the same process should work for cross-examination on three videos. [29] I find the issue of identification in this case will rely heavily on video surveillance evidence, the police prepared photo lineupand a photograph taken by the witness. While the evidence of the witness Talukder will provide necessary context and explanation forthis evidence, the ability for the Court to view that evidence is the same, whether Mr. Talukder is present in person or appears byvideoconference.

I find the reliability of the witness’s evidence can be tested by a strenuous cross-examination on a properly functioningvideoconference. The proper functioning of the technology can be tested in advance of the trial. 4. Suitability of location where the witness will give evidence [30] The affidavit relied on by the Crown establishes Mr. Talukder lives in an apartment with his spouse. He regularly works fromhome, utilizing the internet, so he is familiar with the Microsoft Teams technology. His apartment is quiet.

The Crown points out duringCovid-19, remote appearances of court participants from home was expected and encouraged, and this is a continuation of thosepractices. Mr. Walsh responds all of these statements in the affidavit are double hearsay. Mr. Walsh points out there is no information inthe affidavit about the quality of the internet connection. As I have already explained above, it is clear this information comes from Mr.Talukder so I find it is reliable. [31] I find the location is suitable for a court appearance.

I conclude, based on the fact the witness is able to work from home andthe Crown has been able to have a conversation with him on a video platform, the location is suitable. Surrey, British Columbia is alarge urban center and the plan is to connect with Winnipeg, another urban center. This too gives me confidence the internet connectionwill be reliable and stable. This has not always been the courts’ experience with remote communities when the internet connection canturn out to be less reliable (for example see R. v. Munro at para. 14). 5. The accused’s right to a fair and public hearing [32] Mr.

Walsh concedes there are no issues with a public hearing. The trial will still be in an open courtroom where the evidencecan be heard and viewed by everyone. [33] The Crown argues since most of the evidence is digital in this case, which will be the case whether the witness appears inperson or by video, there is no unfairness that accrues to Mr. Walsh. The Crown points out there is no risk to fairness given the ability ofthe Court to require an in-person appearance should the video appearance turn out to be inappropriate for any reason. [34] Mr.

Walsh’s most strenuous opposition is to the appropriateness of a video appearance since Mr. Talukder is expected toprovide eyewitness identification. He points out “eye witness identification evidence is inherently and notoriously unreliable” (MotionBrief of the Respondent at paragraph 66). He says there will be rigorous cross-examination, going back and forth between, multiple clipsof video surveillance evidence and the witness’s testimony.

He says the applicant has not taken sufficient steps to ensure the proposedtechnology will be sufficient to guarantee trial fairness. [35] I agree with him, more could have been done to demonstrate with precision how the trial is expected to proceed. For example,Crown counsel was not able to answer my question, if a surveillance video is being shared on a video platform, is the witness’s face stillvisible? But I note, in K.Z., supra, similar arguments were made about the ability to refer to video and documentary evidence whencross-examining the witness.

The Court concluded the “Share” feature would work to facilitate the presentation of the evidence. As inK.Z. and other cases (see for example, In Re: Court File No. 19/578, 2020 ONSC 3870; R. v. Gordon, 2021 SKQB 131 at para.46(c)), I find a practice session with the witness and counsel will help ensure there is no trial unfairness, and all parties are familiar withhow the technology will work. [36] I direct a one hour session should be scheduled, in advance of the trial, to allow all parties to have an opportunity to see andlearn how the share feature will work. As noted by the Crown,

section 714.41 provides a court “may, at any time, cease the use of thetechnological means referred to in

section 714.1, 714.2 or 714.3 and take any measure that the court considers appropriate in thecircumstances to have the witness give evidence.” An advance practice session will address the concern Mr. Walsh has that if thetechnology turns out to be inappropriate, he will be prejudiced by an adjournment of the trial. If the technology turns out to be inadequateor inappropriate, I will have an opportunity to re-visit this decision in advance of the trial, and potentially require the witness attend inperson. 6.

Nature and seriousness of the offence [37] The charges before the Court are not the most serious, although I accept as pointed out by counsel for Mr. Walsh, there is riskof incarceration should Mr. Walsh be convicted of these offences. I also accept the assertions of the Crown, there is a public interest in

proceeding on three separate thefts, on three separate days, displaying a pattern of behaviour that supports the public’s interests inproceeding. I accept the person or business who is the victim of repeated thefts would expect the justice system to provide a fair processto determine an offender’s responsibility and if proven, hold an offender accountable. [38] Judge Rosborough in R. v. Denham, 2010 ABPC 82 commented this factor is really a “two-edged sword” (atparagraph 30).

He noted some case law has relied on the seriousness of the charge to require the physical attendance of the witness andothers have relied on the seriousness of the charge to justify a video appearance by a witness whose personal circumstances were suchthat it was necessary to ensure a trial proceeded on its merits. He pointed out a number of cases have not allowed witnesses to appear byvideo on impaired driving cases, but in a number of regulatory prosecutions, the witness was allowed to appear by video (at paragraphs30-32). [39] In R. v.

Ozorka, 2018 ABPC 162, the Court concluded, “What is clear from the jurisprudence is that the more significant thenature of the evidence, and the greater the extent to which credibility of the witness is in issue, the more compelling the countervailingconsiderations must be on a successful

section 714.1 application.” (at paragraph 14). [40] In an analogous way, I find in this case where the charges are less serious, but the cost and time commitment to return a witnessto testify are significant, and a video appearance allows for proper testing of the witness’s evidence, this factor is in favour of a videoappearance. Weighing the Factors and Conclusion [41] I conclude by adopting the following characterization of

section 714.1: …remedial legislation designed to authorize the ‘virtual presence’ of witnesses who are located in Canada but not in the ‘physicalpresence’ of the parties and the court. It escorts other statutory provisions designed to modernize the criminal trial process and recognizethe value of technology, both to the truth-seeking function and to access to justice. Litigation which might otherwise have beenterminated in the past may be continued through the use of this procedural aid.

It is also important to recognize that s. 714.1 C.C. is not designed as an evidentiary tool that will benefit only one party to the litigation(i.e. either the prosecution or the defence). It is a neutral provision. As such, it ought not to be interpreted in such a way as to frustratesociety’s interest in the prosecution of crime or the accused’s interest in making full answer and defence. (Denham at paragraphs 12-13) [42] I adopt the analysis and conclusion in R. v. Gordon, 2021 SKQB 131 at paragraphs 41-43. The factors in

section 714.1 are notmeant to be a checklist, where each factor must work in support of an order from the Court. The weight to be attached to each factor canvary based on the circumstances before the Court. In some cases one factor will take on greater significance than other factors. Thefactors listed in

section 714.1 are not exhaustive, but illustrative (SLC, 2020 ABQB 55 at paragraph 62). The weighing of the factorslisted in

section 714.1 must be conducted with a view to meet the standard set in the section’s opening words, whether an audio or videoappearance is appropriate in all of the circumstances. [43] I have concluded in this case it is appropriate for the witness, Mr. Talukder, to appear by video, in all of the circumstances.While his evidence will be important to identify the video surveillance clips from commercial stores, and the reliability of his assertionswill be strenuously tested in cross-examination, the video surveillance clips themselves and the photograph taken by Mr. Talukder willhave heightened importance.

That evidence will be the same, whether Mr. Talukder attends in person or attends by videoconference. Thecost of having the witness appear in Winnipeg in person is significant in terms of time for the witness and financial cost to the Crown. Avideoconference appearance for a witness who now resides three provinces away is a reasonable and cost-effective option, on chargeswhich are less serious. I hasten to add, I am satisfied with the addition of a practice session, Mr. Walsh’s right to a fair trial will not becompromised.

If the technology works in this case, as it has in other reported cases I have already referenced in this decision (forexample, K.Z., Singh, Re ; Zamora), Mr. Walsh will be able to test the evidence of the witness, in a manner which is equivalent to havingthe witness appear in person. [44] I am granting the Crown’s application, subject to the scheduling of a practice session with the witness appearing byvideoconference, and the Crown presenting to the Court a portion of the video surveillance and photographic evidence it intends toproduce at trial. At this session, counsel for Mr.

Walsh will have an opportunity to practice asking the witness questions relating to thevideo surveillance evidence and any other evidence he may wish to put to the witness. This will not be a trial, but will be a testing of thetechnology with a limited amount of the evidence expected to be presented at trial. “Original signed by:” KRAHN, P.J.