R. v. Ashouri Date:, 2015 BCPC 452

Citation: R. v. Ashouri Date: 20150813 2015 BCPC 0452 File No: 59355-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AHMAD-ZIA ASHOURI REASONS FOR RULING OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: S. Smith Counsel for the Accused: M. Thompson Place of Hearing: Richmond , B.C. Date of Hearing: August 13, 2015 Date of Ruling: August 13, 2015

[ 1 ] This is an application by the Crown, pursuant to s. 486.2(2) of the Criminal Code , for an order that the complainant, who I will refer to by the initials Y.B., be permitted to testify from behind a screen or other device that would allow the witness to not see the accused. It is in relation to a count of sexual assault contrary to s. 271 of the Criminal Code , and that is Count 1 on Information 59355. [ 2 ] Mr. Ashouri does not oppose the application, but he does not consent to it either. [ 3 ] Crown counsel has helpfully provided the recent amendments to this provision and notes that the former language of the

section included the phrase: 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 acts complained of. The new language is a follows: If a 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 interests of the proper administration of justice. [ 4 ] Filed in support of this application is the affidavit of Y.B.

That constitutes the evidence before me. [ 5 ] The Crown says that given the newness of this provision (being proclaimed just last month) it, not surprisingly, does not appear to have been judicially considered, or at least not in a published case; it is the Crown’s position that the new language of s. 486.2(2) imports a less stringent requirement in order for a court to be satisfied that the order here requested should go.

She refers to the Concise Canadian Oxford Dictionary, 2005, which defines the word “facilitate” as “to make an action, result, et cetera, easier, less difficult or more easily achieved”. [ 6 ] In a decision out of the Supreme Court of British Columbia, R. v. Smith , 2007 BSC 1955, the Court there considered the meaning of the words “facilitate” or “facilitating” in the Criminal Code in the context of an unrelated section; the

interpretation there is consistent with that urged by the Crown. [ 7 ] I am satisfied, based on the evidence in the affidavit and considering the factors set out in s. 486.2(3) of the Code , that the order should go. The factors which I view as particularly relevant and persuasive include the age of the witness, who is the complainant in this matter. She was 17 at the time of the alleged offence; she is 19 now. The nature of the offence which is alleged to involve a significant violation of her, and as well society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. At paragraph 7(

c) of her affidavit, Y.B. avers that she does not want to testify in these proceedings at all if she will not be allowed to either adopt her videotaped statement to the police, or to testify from behind a screen or other device that would allow her not to see the accused because it would be too hard emotionally. That falls into ss. (

g) and (h), “any other factor that the judge of justice considers relevant”. [ 8 ] I am not satisfied that sub (b), “the witness’ mental or physical disabilities” is met, but I am satisfied that the emotional impact described as “anxious, scared, worried and an impingement on her ability to remember clearly and be hesitant or unsure in giving her evidence, notwithstanding knowing what happened”, all lead me to be of the opinion that the device applied for will facilitate her giving a full and candid account of the acts complained of, so the order will go. (ORDER CONCLUDED)