R. v. Ince, 2021 BCPC 58

Citation: R. v. Ince 2021 BCPC 58 Date: 20210326 File No: 87248 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHELDON MARK AARON INCE ORAL REASONS ON A

SECTION 714.1 CRIMINAL CODE APPLICATION OF THE HONOURABLE JUDGE B. HARVEY Counsel for the Crown: N. Bennet, by telephone Counsel for the Accused: S. Taylor, by telephone Place of Hearing: Nanaimo , B.C. Date of Hearing: March 16, 2021 Date of Judgment: March 26, 2021 Introduction

[ 1 ] The accused, Sheldon Mark Aaron Ince, is facing two charges on Nanaimo Information 87248. Count 1 alleges an assault causing bodily harm to Jonathon Leach, contrary to

section 267 (

b) of the Criminal Code . Count 2 alleges an assault of Derek Elun, contrary to

section 266 of the Criminal Code . Both offences are alleged to have been committed at or near Nanaimo, B.C. on October 21, 2019. The Information was sworn on January 3, 2020. [ 2 ] The matter is currently set to commence on April 6, 2021, for a two day trial before me. That trial date was fixed approximately last October. There was also a pre-trial conference held on October 27, 2020. [ 3 ] Crown counsel, by way of its filed notice of application on March 11, 2021, now seeks an order pursuant to

section 714.1 of the Criminal Code that three civilian witnesses, including the two complainants, be allowed to testify by videoconference link from Alberta. Counsel for the accused opposes such a request and asked this Court to dismiss the Crown’s application. Background [ 4 ] The Crown has proceeded summarily against this accused. Crown counsel, in support of its position, filed a three page affidavit of its witness notifier on March 15, 2021.

There were no affidavits submitted by any of the three witnesses on this application, nor any sworn or affirmed evidence on their behalf as to their unwillingness to travel to Nanaimo for trial.

Moreover, the Court has had no medical evidence provided to it that would cause them to be at risk if they were to proceed to Nanaimo in person for the purpose of giving testimony. [ 5 ] This Court also heard no evidence as to how long each of the witnesses have resided in their respective communities in Calgary, Edmonton and Leduc, Alberta. [ 6 ] The Crown estimates the approximate cost to bring these three witnesses to Nanaimo would be in the $2,500 to $3,200 range in order to cover flights, accommodations and meals.

I had no information provided to me as to any cost for these three witnesses using Alberta’s videoconferencing system should the Crown’s application succeed. [ 7 ] Crown provided a number of materials including the Ministerial Order, M073 pronounced March 18, 2020, declaring a state of emergency under the Emergency Program Act. The Crown also provided materials including the Notices to the Profession and Public regarding Court operations during COVID-19 from our Court, namely NP 19, 20 and 21. [ 8 ] The Crown conceded that credibility is a major issue in this trial.

The three witnesses that the Crown seeks to appear by videoconference are essential to the Crown’s case. It is proposed that the witnesses testify before me in a private room or facility conducted on behalf of the Courts in Alberta. The Crown also provided additional information, through my Judicial Case Manager, that each of the witnesses would be alone in a room in the proposed respective facility, therefore each witness would not be required to wear a mask.

However, the Crown argued that if the witnesses are required to attend in person they, along with all other participants, would have to be masked in accordance with our current Court policy. The legal framework [ 9 ]

Section 714.1 of the Criminal Code states as follows: 714.1 A court may order that a witness and can to give evidence by audio conference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

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

b) the costs that would be incurred if the witness were to appear personally; (

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

d) the suitability of the location from where the witness will give evidence; (

e) the accused’s right to a fair and public hearing; (

f) the nature and seriousness of the offence; and (g) (not applicable to videoconference applications). [ 10 ] The Crown also submitted that section, namely

section 714.1 , be read in conjunction with sections 715.1 through 715.26, as well as

section 502.1(1) of the Criminal Code , which allows an accused to appear personally, but also by audioconference or videoconference, if arrangements are made with the court in advance and those arrangements are satisfactory to the justice. [ 11 ]

Section 502.1(2) of the Criminal Code states as follows:

(2) Despite

section 714.1, a witness in Canada who is required to give evidence in a proceedings under this Part may do so by audioconference or videoconference, if it is satisfactory to the justice. Case authorities [ 12 ] The Crown provided the following authorities in support of its application: • R. v. Zamora , 2020 BCSC 1259 ; • R. v. Metcalfe , 2018 ONSC 4925 ;

• R. v. De Bartolo , 2020 BCPC 220 ; • R. v. Jeffries , 2021 ONCJ 98 ; • R. v. Lawrence , 2021 NLSC 7 ; • R. v. Wilkes , 2020 NWTTC 16 ; • R. v. Ochoa , 2020 ONCJ 432 ; and • R. v. Rutaihwa , 2020 ONCJ 470 [ 13 ] The Defence also provided the Court with written submissions and included the Zamora and De Bartolo cases. [ 14 ] As can be seen from the cases, a number of the recent authorities have allowed witnesses to testify remotely. To date, the only successful application in this Province that the Crown provided is the Supreme Court of British Columbia decision of Madam Justice Duncan in Zamora .

All of the other authorities are from other jurisdictions which, of course, are not binding on this Court, but are simply persuasive. [ 15 ] Madam Justice Duncan in Zamora stated in paragraph 26 of her decision: [26] The starting point is that the attendance of a witness at trial is the norm and an order under

section 714.1 is the exception … [ 16 ] She also stated in paragraph 46: [46] In conclusion, I am satisfied the constable has a bona fide reason not to travel, and, after a demonstration of the technology , I am satisfied I should exercise my discretion and grant the Crown's application to have Constable Postolovic testify by videoconference from the Halifax Regional Police Office, … [Emphasis added] [ 17 ] The Crown in the case at bar argued that its strongest position in this particular circumstance is the recent decision of Jeffries out of Ontario.

The Crown in the case at bar emphasized the Learned Justice’s comments as set out in paragraphs 24, 28-30 and 32 through 34 of that decision. It was noted, and is acknowledged, that an accused is entitled to a fair trial, not a perfect trial. [ 18 ] I have reviewed all the cases in detail. What is clear is that the Justice has a wide discretion on whether or not to allow a witness, or witnesses, to appear remotely using videoconferencing, as the Crown seeks in this case. To be clear, the Crown in the case at bar does not seek an order that the witnesses appear remotely from their own residence.

Analysis and Disposition [ 19 ] There is no doubt that our world has changed significantly due to COVID-19. The way our Court continues to conduct its daily business has changed significantly since March 2020. Our Court has successfully used videoconferencing, and not only for criminal cases; on a daily basis in-custody bail hearings are conducted with videoconferencing links from various correctional facilities across this Province. Additionally, on a daily basis, particularly since last March, videoconferencing has also been successfully used for both family and civil matters in our Court.

Overall it is my view that MS Teams, along with our present videoconference system, has been used quite successfully.

Were it not for the addition of MS Teams, I have no doubt that the backlog of cases would be even greater than it currently is. [ 20 ] That being said, the Crown bears the onus on balance to persuade me that, in interest of fairness, these three witnesses should be granted permission to testify from Alberta using videoconferencing from an independent facility which works in conjunction, as I understand it, with the Alberta Courts. [ 21 ] I note that in some of the cases, particularly the Zamora case, that the officer had to fly from Nova Scotia out to British Columbia.

The Court noted that the case did not hinge on the cost, but had affidavit evidence from the officer, including a letter from the officer’s family doctor. The officer’s doctor indicated it was not advisable for the officer to travel in order to testify. I have no such information that has been provided to me in this case from any of the three witnesses in the case at bar. [ 22 ] I also find the Jeffries decision distinguishable from the case at bar. In that decision the Learned Justice, for personal reasons as set out in paragraph 10 of the reasons on the application, was unable to sit over in-person matters.

Additionally in the Jeffries case, that application also involved an assigned Crown who also was unable to attend personally in Court. The Learned Justice held that it would therefore be inappropriate for the complainant witness to appear in person where both counsel for the Crown and the Justice would be appearing remotely. That is not an issue in the case at bar. [ 23 ] Of additional concern in the case at bar is the Crown has not provided this Court with sufficient information or demonstration on the compatibility of the videoconferencing capabilities from Alberta with our current Court system.

I am left unaware of the complexity of the technical issues, as correctly stated by the Crown, and there is no evidence before me to suggest that should I grant such an order, the matter would proceed smoothly. [ 24 ] Additionally, I have no information before me that the videoconference links with the various locations in Alberta have been tested with our system in British Columbia, and that it is completely compatible with our DARS recording.

Moreover, should technical or other difficulties arise, which I have found have occurred within our own Provincial videoconferencing system through MS Teams at times, it can often result in standing down for significant periods of time to remediate the problem. [ 25 ] I am also aware as the presiding Judge, pursuant to

section 714.41 and 715.26(3) of the Criminal Code , I may cease the use of

the technology and take any further measure that the Court considers appropriate in the circumstances to have the witness(es) give their evidence should technological problems occur. [ 26 ] To that end, I find that the comments of Mr. Justice Malloy in the Wilkes decision from the Northwest Territories Territorial court at paragraph 15 and 16 apropos in the case at bar: [15] Location, in my view, contemplates an independent facility offering a private space, with the necessary equipment, bandwidth and other components to facilitate high quality uninterrupted audio and video streaming.

Ideally, that location is staffed by personnel that can assist the court in verifying that the witness is alone and has no notes or other aids to reference. Those same personnel would hopefully act as facilitators should technical or other difficulties arise while a witness is giving evidence. [16] As the overall suitability of the location increases, the potential prejudice that arises from not being able to see witnesses (in person) decreases. Connectivity is essential, on both ends of the videoconference.

By way of an example, there is more reluctance to interrupt cross-examination absent an objection of significant consequence. Cross-examination is fundamental to the truth seeking process and a cross-examination interrupted by frequent technical obstacles may be unfairly diminished of its potential effect. [ 27 ] As far as this Court knows, there will be no advanced testing and quality control measures established regarding the proposed videoconference locations concerning the testimony of the three witnesses.

Moreover, if each civilian witness were left alone in the proposed room it would be nearly impossible to know if there were distractions or testimonial aids available to each witness that in my view could be monitored effectively by the Court. As well, it is likely that another person would be required to monitor the proceedings in Alberta for technical problems. As such it is at least possible that person would at least be near each witness.

Therefore, that likely could mean that any of the three witnesses would then have to be masked to monitor any technical problems by an observer, should any occur. [ 28 ] In the case at bar it is not disputed the credibility is at issue. I mindful of the 2017 decision of SDL from the Nova Scotia Court of Appeal. Subsequent decisions have not given as much weight to its proposition, namely where credibility is at issue, that this Court should authorize videoconference testimony only in the face of exceptional circumstances and that mere inconvenience should not suffice. [ 29 ] Today is March 26, 2021.

The trial is now less than two weeks away. This trial date was set last October 2020, after pre-trial conference, some five months ago. The Crown attached its pre-trial synopsis to accompany its oral submissions and I note that there was no request for any witness to testify by videoconferencing at that time. [ 30 ] Further, I am also mindful of my brother Judge Patterson’s comments in the DeBartolo decision of October 23, 2020, where he stated the following under the heading Mr. De Bartolo’s right to a fair and public hearing at paragraph 24: [24] I am of the opinion that the number one factor is, as set out in

section 714.1(e), the accused’s right to a fair and public hearing. Mr. Anderson believes the credibility will be the major issue at the trial and that I, as the trier fact and law, will need to see Ms.

Lepatourel testify in person in order to properly assess her credibility. [ 31 ] I recognize that a criminal trial is not a perfect trial; however, I agree with my brother Judge Patterson that despite the pandemic we are in, and despite my reservations about whether there could be technical issues, I am of the view that fairness on the facts of the case at bar militates in favour of the Defence position. [ 32 ] Cost is only one factor I must consider. Risk for people travelling is another factor.

Risk from having the trial collapse on the day of trial if either the Judge, counsel, the accused or any witness were to be asymptomatic or COVID-19 positive also is now a factor. [ 33 ] However, there were no affidavits submitted by any of the three witnesses on this application, nor any sworn or affirmed evidence on their behalf, as to their unwillingness to travel to Nanaimo for trial. Moreover, there is no additional affidavit evidence regarding any specific health risks to the three witnesses beyond the ordinary risks that all of us take every day when travelling to and from work.

Thus, this Court has had no medical evidence provided to it that would cause them to be at risk if they were to proceed to Nanaimo in person for the purpose of giving testimony. [ 34 ] I also recognize that our Court has a mandated mask policy and that exceptional steps have been taken by both management and sheriffs to ensure the safety of all justice participants who are required to attend, as they will be in this case, to an in-person trial. [ 35 ] On balance, I find that the witnesses may very well be inconvenienced by having to travel from Alberta to Nanaimo for trial.

However, I have been informed by counsel for the Crown that all three witnesses seem cooperative.

In my view, whilst there is the additional possibility or risk of them travelling by air or land to Vancouver Island, all three of these witnesses would not be forced to travel an inordinate distance from Alberta to Vancouver Island as it would be for them if they had to travel from more eastern Provinces to the Island. [ 36 ] Accordingly, and for the aforementioned reasons, the Crown’s 714.1 application to have the three named civilian witnesses testify by videoconferencing in this trial is dismissed. _____________________________ The Honourable Judge B. Harvey Provincial Court of British Columbia