R. v. Kotio, 2019 NSSC 412

SUPREME COURT OF Nova Scotia Citation: R. v. Kotio , 2019 NSSC 412 Date: 2019 01 10 Docket: CRH 472166 Registry: Halifax Between: Her Majesty the Queen v. Eastman Tamba Kotio Restriction on Publication: CCC s. 486 D E C I S I O N

Section 486.2(2) Application Judge: The Honourable Justice C. Richard Coughlan Heard: Oral Decision: Written Release: Counsel: January 10, 2019, in Halifax, Nova Scotia January 10, 2019 August 17, 2020 Cory J. H. Roberts, for the Provincial Crown Joshua N. Nodelman, for Mr. Kotio By the Court (orally): [ 1 ] Eastman Tamba Kotio is charged that he committed a sexual assault on H.D.G. Ms. G is now 22 years of age. The prosecutor applies pursuant to

section 486.2(2) of the Criminal Code that Ms. G testifies behind a screen or other device that will allow her not to see the accused. [ 2 ]

Section 486.2(2) provides: Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the 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 interest of the proper administration of justice.

[ 3 ]

Section 486.2(3) sets out factors a judge must consider in determining whether to make an order pursuant to

section 486.2(2) as follows: In determining whether to make an order under subsection (2), the judge or justice shall consider: (

a) the age of the witness; (

b) the witness’ mental or physical disabilities, if any; (

c) the nature of the offence; (

d) the nature of any relationship between the witness and the accused; (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence; (

g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (

h) any other factor that the judge or justice considers relevant. [ 4 ] The onus is on the applicant to establish the order, on a balance of probabilities, would facilitate the giving a full and candid account from the witness or otherwise be in the interest of the proper administration of justice. [ 5 ] In this case, Constable Steve Rideout of the Royal Canadian Mounted Police, involved in the investigation of this matter, testified Ms. G told him she would fear seeing Mr. Kotio and that she would have a difficult time in testifying if she saw him.

Constable Rideout also testified, in his experience in investigating many sexual assaults, a screen makes people calmer in giving their evidence. I accept Constable Rideout’s evidence. [ 6 ] The Crown attorney stated Ms. G did give her evidence at the preliminary hearing without the use of a screen. [ 7 ] Considering the factors set out in

section 486.2(3), including the nature of the alleged offence of anal sexual assault and society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system, and all the evidence, I find allowing Ms. G to testify behind a screen would facilitate the giving of a full and candid account by Ms. G of the acts complained of and would be in the interest of the proper administration of justice. [ 8 ] The application is allowed. Coughlan, J.