R. v. Obelikpyha Date:, 2012 BCPC 282

Citation: R. v. Obelikpyha Date: 20120723 2012 BCPC 0282 File Nos: 86497-1 and 86497-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION ss. 486.4(2) and 539(1) CCC REGINA v. GODSTIME OBELIKPYHA RULING ON APPLICATION OF THE HONOURABLE JUDGE DOSSA Counsel for the Crown: M. Mann and K. Fast Counsel for the Accused: G. Barnes

Place of Hearing: Port Coquitlam , B.C. Date of Hearing: July 23, 2012 Date of Judgment: July 23, 2012 [ 1 ] THE COURT : This is an application by Crown counsel for an order that the complainant in this action be allowed to testify from outside the courtroom pursuant to s. 486.2 of the Criminal Code . [ 2 ] The defence opposed the application and asked that the Court hear from a witness support worker who had spoken to the complainant.

The support worker testified that the complainant told her that she was fearful of the accused and that when she tried to give evidence earlier she was feeling nauseous, vomiting and crying, and felt under the accused's control. When she was asked if she felt she could come into the courtroom she felt she could do so provided the accused was not there or she could give evidence from outside the courtroom. [ 3 ] Crown counsel referred to the decision of R. v.

Diley (phonetic) which sets out that the test in s. 486.2(2) is whether the judge is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of, and to make this determination under s. 487.2(3) the Court must take into account the following factors: the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstances the judge considers relevant. [ 4 ] This case involves a very young complainant who is 18 years old.

She does not have a physical or mental disability, but the nature of the offence is an allegation of sexual assault.

The accused was a stranger to her prior to the incident and there was no subsequent interaction between them. [ 5 ] While the complainant did testify this morning, she spoke softly through an interpreter and made no eye contact with the judge or counsel and was having difficulty giving evidence. [ 6 ] In view of her demeanour this morning and the nature of the charge -- one of sexual assault -- and her young age, I am satisfied that the order is necessary to obtain a full and candid account from her of the acts complained of. Accordingly, I make the order that she is able to testify from outside the courtroom.

It is important that the complainant and the victim support worker who may be there be visible and that there be no communication between the victim support worker and the witness when she is testifying. (ORAL REASONS FOR JUDGMENT CONCLUDED)