Her Majesty the Queen - v. -, 2011 SKPC 178

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 178 Date: November 17, 2011 Information: 24375107 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cory Rezansoff Appearing: B. J. Bauer For the Crown J. S. Abrametz For the Accused DECISION RE: SS. 714.1 AND 714.3 APPLICATION Q.D. AGNEW , J [ 1 ] Trial in this matter is scheduled to commence on November 22, 2011.

On November 15, the Crown brought before me as the trial judge an application for the evidence of a Crown witness, Sunday Fitzpatrick, to be heard either by closed circuit television (“CCTV”) or by telephone pursuant to sections 714.1 and 714.3 respectively of the Criminal Code [1] . The accused opposes that application.

[ 2 ] Given the wording of the two sections, I consider the test for CCTV testimony to be lower than for telephone testimony. In light of the considerations involved, if CCTV testimony is not acceptable, I do not believe that telephone testimony could possibly be found to be appropriate. Accordingly, if I conclude that CCTV testimony is acceptable in this case, then I will go on to consider whether or not telephone testimony would be appropriate instead. [ 3 ] The accused is charged with: (

a) operation of a motor vehicle while prohibited; (

b) failure to provide a breath sample; (

c) impaired operation of a motor vehicle. [ 4 ] The Crown provided evidence showing that the witness is expected to testify as to the manner of driving of a vehicle she observed on a highway. She is not able to identify the driver of that vehicle. The reasons for the application are: (

a) the witness resides in Drayton Valley, Alberta, approximately eight hours from Saskatoon by car; (

b) the witness, due to her comfort level with winter driving, would drive to and from Saskatoon during daylight.

She would have to travel the day before the trial and return the day after the trial, and would therefore lose three days’ wages. [ 5 ] The Crown’s evidence also shows that: (1) the witness has a private room with a landline which she could use to testify by telephone; (2) the court house in Drayton Valley has CCTV capabilities, but is occupied on November 22; (3) the court house in Leduc, about an hour from the witness’ home, also has CCTV capabilities but is likewise occupied on November 22; (4) there are CCTV capabilities in Edmonton (I presume at a court facility, although that is not clear on the evidence), approximately two hours’ driving time from the witness’ home. [ 6 ] Shortly after these sections were enacted, Mr.

Justice Wright of the Saskatchewan Court of Queen’s Bench had occasion to review s. 714.1, in R. v.

Young . [2] He set out a non-exhaustive, non-prioritized list of factors to consider in deciding an application under that section: (1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross-examine that witness? (2) the nature of the evidence to be introduced from the witness and whether it is non-controversial and not likely to attract any significant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect to exhibits and the like and other matters that would not attract any particular objection on the part of the accused's counsel; (3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom;

(4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance; (5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, personal life and the like; (6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion; (7) the cost to the state of having the witness attend in person; and (8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial. [3] [ 7 ] To those factors I would add two others.

The first is that the solemnity of the court proceeding itself, being physically in the courtroom in the presence of counsel, the accused and the judge, may for some witnesses impose a demand for truth and accuracy which would be missing were they to be testifying remotely. The second is that whether or not the witness is to be shown exhibits, or is to provide them, and is to be asked to interact with them must be taken into account in deciding whether or not to allow the witness to testify from beyond the courtroom. [ 8 ] The

section recently received a thorough analysis in R. v.

Denham [4] , which set forth four principles: (1) there is no automatic right in Canada for a party to physically confront a witness; (2) significant inconvenience is a valid reason to accept testimony via video teleconference; (3) the cost of a witness being physically present includes not just monetary costs but also disruption to business and government functions; and (4) the nature of the testimony expected to be provided by the witness is a significant factor: the demeanour of an eyewitness may have a very significant role in evaluation of the credibility of that witness, while the demeanour of an expert witness who responds in cross-examination on technical questions is less likely to be a significant consideration. [ 9 ] The caselaw which has developed with respect to s. 714.1 was recently reviewed in R. v.

Hinkley [5] , which I have read with some care. [ 10 ] As Wright J. predicted would often be the case, many of the factors he enumerated do not apply in the matter before me. The argument for allowing the application is based on the witness’ convenience, and the logistics and costs of requiring her attendance. In considering these factors, I think it appropriate to consider that the cost of requiring the witness’ attendance will be largely borne by Ms. Fitzpatrick herself. She will lose three days’ wages; I speculate that she may also lose a certain degree of goodwill with her employer and co-workers.

It is in the interests of the administration of justice that the costs, both monetary and otherwise, to witnesses who participate in the criminal justice system be minimized; to do otherwise would be to discourage witnesses from coming forward. [ 11 ] The argument against allowing the application flows from the accused’s desire to have the fullest possible cross-examination of this witness.

The nature of the expected evidence is neither pro forma nor uncontroverted; given the nature of the charges, evidence about the manner of operation of the motor vehicle is likely to be both very significant and subjected to serious challenge. As indicated

in Denham , there is no automatic right for the accused to be in the physical presence of the witness; the question rather is whether or not the witness’ testimony can be adequately tested and challenged through some means other than with the witness physically in the courtroom. [ 12 ] Balancing all of these factors, I have concluded that it is appropriate that Sunday Fitzpatrick be allowed to testify by CCTV. As indicated above, I must then consider whether or not this situation meets the higher test to allow her to testify by telephone. I have concluded that it does not. While in large

part I sympathize with the comments of my brother Judge Kaiser in a similar application (“. . . quite frankly, I find I can make very little by way of credibility assessment . . . associated with viewing a witness. In my view, the credibility exercise has more to do with the consistency with other evidence or the lack thereof.” [6] ), nonetheless I think that the proposed evidence of this witness is of sufficient import and likely to be of such a contested nature that a telephone appearance will not suffice for her testimony.

The potential for prejudice to the accused caused by the witness testifying by telephone is, in my view, too great. The convenience of Ms. Fitzpatrick does not outweigh it, particularly since presumably she will not have to make a three-day trip to Saskatoon: CCTV facilities are apparently available in Edmonton. [ 13 ] Defence counsel provided to me, in his written submission following the oral hearing of this application, information regarding where Drayton Valley is in relation to the Edmonton airport, as well as airline flight information and a map.

I do not believe this is an appropriate way to place factual information before the Court. Information, particularly if it is intended to contradict or dispute sworn information, should itself be sworn to. Placing information before the Court via counsel’s brief not only means it is unsworn, but opens counsel up to the possibility of being cross-examined on the information provided. In this regard, I repeat my comments in R. v. Wilson . [7] The information provided did not, in any event, alter my balancing of the factors outlined above. [ 14 ] Accordingly, I allow the Crown’s application to allow Ms.

Fitzpatrick to testify by CCTV. I do not allow the application for her to testify by telephone. _________________________ Q.D. Agnew, J [1] 714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness had to be physically present; and (

c) the nature of the witness’ anticipated evidence. 714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness had to be physically present; (

c) the nature of the witness’ anticipated evidence; and (

d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them. [2] [2000] S.J. No. 590, 2000 SKQB 419 , 201 Sask.R. 158, 150 C.C.C. (3d) 317, 48 W.C.B. (2d) 227. [3] See paragraph 8.

[4] [2010] A.J. No. 1435, 2010 ABPC 82 , 500 A.R. 211. [5] [2011] A.J. No. 1012, 2011 ABQB 567 . [6] R. v. Nordstrom , unreported, August 21, 2009, North Battleford, Saskatchewan. [7] 2011 SKPC 133 at paragraph 15 .