HER MAJESTY THE QUEEN PLAINTIFF AND: STEVEN MICHAEL NEVILLE DEFENDANT, 2018 NLSC 252

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Neville , 2018 NLSC 252 Date : December 11, 2018 Docket : 201201G0947 BETWEEN: HER MAJESTY THE QUEEN PLAINTIFF AND: STEVEN MICHAEL NEVILLE DEFENDANT Before: Justice Robert P. Stack Place of Hearing: St. John's, Newfoundland and Labrador Date of Hearing: November 13, 2018

Summary: This matter involves consideration of sections 714.1 and 714.8 of the Criminal Code . The Court ruled that a witness may give evidence in a trial by judge and jury for second degree murder and attempted murder via video link from a court room in Vancouver, British Columbia. The Court took into account the personal circumstances of the proposed witness. Factors that the Court considered included trial fairness, the open court principle, issues of credibility, the significance and complexity of the proposed testimony, and the circumstances and quality of the video link. Appearances:

Jason House and Jessica Gallant Counsel for the Plaintiff Robert Buckingham and Robert Hoskins Counsel for the Defendant Authorities Cited: CASES CONSIDERED: R. v. S.D.L. , 2017 NSCA 58 . STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Canada Evidence Act, R.S.C. 1985 , c. C-5. REASONS FOR JUDGMENT ON A MID-TRIAL APPLICATION STACK, J. : INTRODUCTION [ 1 ] Mr. Neville, the accused, is being tried for the second time for the murder of Doug Flynn and the attempted murder of Ryan Dwyer.

The convictions from the first trial, which was held late in 2012 and early in 2013, were overturned on appeal by the Supreme Court of Canada. This is my decision in the unusual circumstances of the witness, Kyle Miller, a person who has been subpoenaed not once, but twice, to give evidence in the second trial. [ 2 ] The trial commenced on September 17, 2018 and we are now into week nine. Mr. Miller may or may not be the last Defence witness. After a sequence of events that I will detail below, Mr. Miller has now appeared by video from a courtroom in Vancouver, B.C., in the absence of the jury.

He says that he is prepared to give his testimony by video link. The Crown is satisfied for him to do so. The Defence says that Mr. Miller should be arrested and brought to St. John’s to testify. I will now explain why I have decided that Mr. Miller may provide his testimony by video link. THE CRIMINAL CODE [ 3 ] The situation of Mr. Miller invokes sections 714.1 and 714.8 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “ Code ”).

Section 714.1 provides: 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. [ 4 ]

Section 714.8 provides: 714.8 Nothing in sections 714.1 to 714.7 is to be construed as preventing a court from receiving evidence by means of the technology referred to in sections 714.1 to 714.4 if the parties so consent. BACKGROUND

[ 5 ] By way of background, both parties agree that Mr. Miller is a material witness to the case at hand. He provided five statements to the police, including KGB statements (so called because they were under oath); Mr. Miller also testified at the preliminary inquiry and at the first trial. [ 6 ] In February of this year, the Crown caused a subpoena to be issued for Mr. Miller to testify on its behalf. He failed to appear as required. The Crown decided not to call him as a witness. [ 7 ] The Defence, however, wishes to have Mr. Miller testify on behalf of Mr. Neville. Originally, the Defence proposal was for Mr.

Miller’s testimony to be provided via video link. Apparently there had been discussions between Defence counsel and Mr. Miller in that regard. Part of the original rationale for Mr. Miller appearing by video, as explained by Defence counsel, was that it would not be practical for him to travel to St. John’s because, first, his girlfriend is a diabetic and is in the early stages of a delicate pregnancy and, second, he fears for his safety in St. John’s due to events in his past. At that time, the Crown indicated that they would oppose Mr.

Miller’s testimony being provided by video. [ 8 ] The Defence, therefore, began preparing a formal application pursuant to

section 714.1 for Mr. Miller to testify by video. Part of those preparations, I understand, included seeking an affidavit from Mr. Miller and a letter from his girlfriend’s doctor to support the application. Before the preparations could be completed, however, Defence counsel reported to me that Mr. Miller “went cold” and stopped communicating with them. [ 9 ] Consequently, the Defence sought a warrant in accordance with

section 705 of the Code for Mr. Miller’s arrest pursuant to the subpoena issued by the Crown . On that application, I was not satisfied that the warrant had been properly served in accordance with

section 509 of the Code and so held that the first requirement of

section 705 had not been met. Defence counsel then issued and served a new subpoena on Mr. Miller. [ 10 ] Upon Mr. Miller’s failure to appear as required pursuant to the second warrant, and upon being satisfied that the requirements of

section 705 had been met, I ordered that a warrant in Form 17 be issued for his arrest for the purposes of transporting him to St. John’s to testify at the trial. [ 11 ] Time was given for the warrant of arrest to be executed in British Columbia, where it was thought that Mr. Miller could be located. In the meantime, in case Mr. Miller could not be found, the Defence brought an application pursuant to section 715(1) of the Code for an order that Mr. Miller’s testimony from the first trial be played for the jury in this trial.

The Crown objected on the basis that because he had been their witness at the first trial, they had not had a full opportunity to cross-examine Mr. Miller at that time. I heard the application but delayed rendering a decision pending elapse of the time given to effect the arrest warrant. [ 12 ] Before I was to give my section 715(1) decision, Defence counsel advised that Mr. Miller had resumed discussions with them regarding appearing by video. At that time, it was still not known to the Court whether Mr. Miller could be found for the purposes of effecting his arrest. Furthermore, it was suggested that Mr.

Miller’s renewed interest in appearing by video may mean that section 715(1) would no longer be operable because Mr. Miller could no longer be seen to be refusing to be sworn or to give evidence as required by 715(1). [ 13 ] In any event, the parties agreed that video testimony, although not preferable to Mr. Miller testifying in person before the Court, would be preferable to his evidence from the first trial being played for the jury. To this end, the parties consented, pursuant to

section 714.8, for Mr. Miller to give his evidence by video, but only in the event that he had not been arrested before he began such video testimony. Consequently, Defence counsel made arrangements for video facilities to be available for Mr. Miller’s testimony at the B.C. Provincial Court and copies of his various previous statements and testimony were couriered there for his purposes. [ 14 ] The next day it was learned that the Royal Newfoundland Constabulary likely knew where to find Mr. Miller and were more confident that an arrest could be effected.

With the concurrence of counsel, I decided that the warrant still held but that if Mr. Miller were to appear to provide his video testimony before his arrest he would be permitted to do so. This is because it would be unfair to “lure” him to the Vancouver court for that purpose only to have him arrested and transported to St. John’s to appear in person. [ 15 ] I am given to understand that having learned of the warrant for his arrest, on Thursday past Mr. Miller presented himself to the Vancouver court to inquire about the arrangements for his video testimony.

Finding the court closed, he went to the police station where he was arrested pursuant to the warrant. On Friday, November 9, he was brought before a justice of the Supreme Court of British Columbia (the B.C. Court). B.C. Crown counsel, making submissions on behalf of the Crown in this jurisdiction, and Mr. Miller were heard. Defence counsel were given the opportunity to appear by telephone but declined. The justice in B.C. released Mr.

Miller on an undertaking to appear at the Vancouver court on Tuesday, November 13, to give his testimony in this trial by video link. [ 16 ] Questions have arisen as to the jurisdiction of the B.C. Court to make that decision. Mr. Miller was arrested pursuant to

section 705 of the Code . He was brought before a justice of the B.C. Court who, presumably pursuant to

section 706 of the Code , released Mr. Miller on an undertaking to appear on November 13 to give evidence in the trial via video.

Section 706 of the Code permits a judge before whom is brought a witness arrested pursuant to

section 705 to order the witness detained or released on a recognizance to appear and give evidence when required. It does not appear to permit the release of the witness on an undertaking to appear. Of more concern is that

section 714.1 (and

section 714.8), which permit testimony by video, appear to be matters for the trial judge and not for the judge before whom a witness appears pursuant to

section 706 . The warrant required the witness to be arrested for the purpose of being transported to St. John’s to give evidence at the trial. It was suggested, therefore, that the justice of the B.C. Court exceeded her jurisdiction by requiring that evidence was to be received via video link. KYLE MILLER [ 17 ] On the afternoon of November 13 (the morning in B.C.), Mr. Miller appeared via video to explain what had occurred. He was sworn and therefore attorned to the jurisdiction of this Court.

He apologized for the delay and confusion that he caused and stressed that he was always prepared to provide testimony by video. As to his circumstances, he alluded to the homicide in this jurisdiction of his brother, Steven Miller, in July of 2016. Mr. Miller testified that one of the men involved in that killing sent a message to his girlfriend

inquiring as to whether Mr. Miller would be attending in St. John’s for the trial of Mr. Neville. This was taken by him as a threat because, according to Mr. Miller, at the time of his brother’s death the same person had left his girlfriend in the house to burn. Therefore, he says, he fears for his personal safety. [ 18 ] Additionally, Mr. Miller advised that his girlfriend suffers from post-traumatic stress disorder (PTSD) as a result of being present during Steven Miller’s death. He testified that she had guns and knives put to her face and had Steven’s blood on her. Mr.

Miller’s animals burnt to death in the fire and she could do nothing to save them. Apparently, Kyle Miller was away at the time. [ 19 ] Mr. Miller also related that his girlfriend is a Type 1 diabetic and became pregnant in early September. As stated by Mr. Miller, “we have been in and out of hospital ever since”. He provided the Court with an ultrasound photograph and laboratory requisitions as proof. He also related that his girlfriend suffered a miscarriage in January of 2018. Mr. Miller does not feel that he can leave her side at this critical time. [ 20 ] This appearance by Mr.

Miller also gave the Court and the parties the opportunity to assess the video link. Mr. Miller appeared in a room by himself in a court house. In addition to testing the video and sound quality of the video link, counsel for Mr. Neville also took Mr. Miller through the two large volumes of his statements and prior testimony that had been couriered to B.C. for trial purposes. Mr. Miller had no difficulty navigating his way through the volumes and locating the documents to which he was referred.

ISSUE [ 21 ] The only issue before me is whether Kyle Miller should be permitted to testify in this trial via video link from a courtroom in Vancouver, British Columbia. PoSitions of the parties The Crown [ 22 ] Notwithstanding any potential jurisdictional issue, Crown counsel submits that trial fairness now dictates that Mr. Miller be permitted to give his testimony by video link. Recognizing that video testimony is not optimal, the Crown pointed out that the video connection was clear and Mr. Miller could hear and be heard.

There was some minor freezing of the video feed but Crown counsel did not feel that this was sufficient to preclude video testimony. [ 23 ] According to the Crown, the entitlement to a fair trial applies to all of the people involved – including the jury. The Crown is concerned about the length of delay that would be encountered if video testimony were not permitted and an application for certiorari was brought to the British Columbia Court of Appeal seeking to quash the decision of the B.C. Court. Furthermore, the Crown expressed concern that in such an event, if the decision were quashed and if Mr.

Miller were to once again be subject to arrest for transport to this jurisdiction, he may disappear and not be able to be found. Defence [ 24 ] Counsel for the Defence maintains that trial fairness requires Kyle Miller to testify in person. It is imperative, says counsel for the Defence, that the jury be able to observe Mr. Miller in person to note his demeanor and assess his credibility. This is because his evidence will go to intent and self-defence, both of which may be important issues for the jury. [ 25 ] According to the Defence, Mr.

Miller would be expected to testify as to various things that were said and done, including an assault suffered by him, that will aid Mr. Neville’s defence. His will be significant testimony, especially because he was mentioned in the testimony of many of the other witnesses. Consequently, says counsel for the Defence, it would be best it Mr. Miller were to appear in person. [ 26 ] As to Mr. Miller’s circumstances upon which

section 714.1 would apply, counsel for the Defence says that there is nothing new nor major in what he advised the Court that would necessitate his appearance via video link. analysis [ 27 ] Undoubtedly, it would be best if Kyle Miller were to appear in St. John’s to give his testimony in person. Nevertheless, there is a certain irony in the Defence resisting his testimony by video when it was they who first suggested that it would be appropriate in the face of opposition by the Crown. Furthermore, the Defence subsequently consented to video testimony pursuant to

section 714.8. [ 28 ] In certain respects, what has transpired is in keeping with the

section 714.8 position of the parties that was accepted by me. Mr. Miller was subject to arrest but if he presented himself for testimony by video then that would be permitted and he would not be arrested. What he has explained to the Court is that upon learning that the police attended at his house to arrest him, he turned himself in to submit to video testimony. This is a prospect that was recognized by the parties and from which they cannot now resile. It is also likely the rationale by which the B.C. Court ordered Mr.

Miller to appear by video on November 13. [ 29 ] Furthermore, counsel for the Defence has not provided a suggested mechanism by which Mr. Miller’s appearance in person would occur. He was released from arrest by the B.C. Court and appeared as he undertook to do. I can only surmise that the Defence is contemplating an application to the B.C. Court of Appeal for certiorari following which, if it were successful, a fresh attempt would be made to have Mr. Miller honour the subpoena (or a new one) or be subject to further arrest. Additionally, Mr. Miller may have brought a

section 714.1 application at that time to appear via video link. [ 30 ] Although I asked counsel to provide me with an approximation of the time involved in such a process, none was forthcoming. I can only conclude that it would take weeks, not days. As it is, it has been two weeks since the jury last heard any evidence. Any more significant delay would not be fair to them nor amenable to trial fairness for the other persons interested in this trial, including Mr. Neville.

[ 31 ] I must also consider the parties’ earlier consent to Mr. Miller appearing via video. Although at first blush it would appear that

section 714.8 would preclude the trial judge having any authority to consider whether testimony by video would be appropriate in the face of consent by the parties, I cannot read it so narrowly. It must be subject to the Court’s inherent jurisdiction to govern the trial process. Where issues of trial fairness remain, it would be open to a trial judge to refuse a video appearance by a witness notwithstanding the consent of the parties. Such an overarching discretion would, I venture, be seldom invoked because in the normal course deference would be granted to the parties who had put their collective minds to the method of testimony by the witness. [ 32 ] In exercising discretion in respect of

section 714.8, the Court would take into account the factors to be considered under

section 714.1 . R. v. S.D.L. , 2017 NSCA 58 , provides a good review of those factors. There, the court identified the principles applicable on an application brought pursuant to that

section as follows: a. So long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. In appropriate circumstances, it can enhance access to justice. b. When credibility is an issue, however, the court should authorize video testimony only in the face of exceptional circumstances that personally impact the proposed witness; mere inconvenience should not suffice. c. When the credibility of the complainant is at stake, the requisite exceptional circumstances described must be even more compelling. d.

The more significant or complex the proposed evidence, the more guarded the court should be. e. When credibility will not be an issue, the test should be on a balance of convenience. f. Barring unusual circumstances, there should be an evidentiary foundation supporting the request - typically by affidavit. Any cross- examination can be done by video link. g. When authorized, the court should insist on advance testing of the proposed video link and stringent quality control measures that should be monitored throughout the process.

If the quality of the video link becomes unsatisfactory, or other issues arise that call into question the appropriateness of testimony being given in this way, the decision authorizing video testimony should be revisited. h.

Finally, to preserve judicial independence and the appearance of impartiality, where feasible the video evidence should be taken from a courtroom. [ 33 ] I am satisfied that in the unique circumstances of this case, permitting Kyle Miller to testify by video does not negatively impact trial fairness or the open courts principle, and therefore his testimony by way of video link should be permitted. The testimony will take place at the British Columbia Provincial Court in Vancouver. He can be clearly seen and heard as we learned from his appearance on November 13.

He will have in front of him his prior statements and testimony for reference during his testimony and he has demonstrated the ability to make his way through them in an efficient manner. [ 34 ] The open courts principle is not offended because he can be seen and heard by me, as trial judge, the jury, counsel and the accused.

Although it may be somewhat difficult for the people in the public gallery to see him they will actually be able to hear him as well as or better than they could hear the witnesses who appeared in person because his voice will be amplified which was not the case for the others. [ 35 ] I do not see the minor impediments of testimony by video as undermining the accused’s entitlement to a fair trial or his ability to make full answer and defence.

Although the video testimony will not be as good as in-person testimony – he will not be in the immediate presence of questioning counsel, there is an issue with the audio when two people speak at once, and the video is prone to short moments of freezing from time to time – his demeanor and credibility will be able to be assessed by the jury. I also recognize that Mr. Miller will not be in the presence of the exhibits that he may be shown, particularly the knife that was located at the crime scene. This short-coming, however, can be overcome by a little patience and ingenuity on the part of counsel.

As mentioned, it is difficult to give credence to an argument made by the Defence based upon trial fairness when they not only first raised the prospect of Mr. Miller appearing by video but subsequently consented to the same. [ 36 ] There is no doubt that Mr. Miller’s credibility will be an issue. Also, other than Mr. Miller’s own testimony before the Court, there is no evidentiary basis for his video appearance.

Although he is not the complainant, absent the particular circumstances of this case I would have wanted an affidavit from him, and perhaps one from his girlfriend or her doctor, detailing the situation with her pregnancy and PTSD, together with appropriate documentary corroboration. Yet, counsel were given the opportunity to cross-examine Mr. Miller following his presentation to the Court on November 13 and both declined to do so. Taking Mr.

Miller at his word, therefore, I am satisfied that there are exceptional circumstances such that it would be more than merely inconvenient for him to travel across the country, leaving his girlfriend in her present condition, to testify in this case. [ 37 ] Mr. Miller is a material witness. But it has not been demonstrated that his testimony will be so significant such as to make it inappropriate for video testimony. Any complexity in Mr. Miller’s testimony would likely arise from the concordance of his testimony (or lack thereof) to previous accounts given by him.

Section 9 of the Canada Evidence Act, R.S.C. 1985 , c. C-5, may be called upon. But on November 13, Mr. Miller showed a willingness to be cooperative. He also demonstrated a facility in making his way through the binders containing those earlier accounts; reference to them should not negatively affect his evidence in any material way. [ 38 ] As to Mr.

Miller’s fears for his personal safety, although I am sympathetic to his concerns and recognize the tragic circumstances of his brother’s death, it is not uncommon for witnesses to appear in person to testify in circumstances where their personal safety may be in jeopardy. Appropriate steps can be taken to safeguard such a witness and so I would not, based upon that consideration alone, agree to Mr. Miller’s appearance by video. But his concerns in that regard, and his girlfriend’s presence at the death of his brother and her resulting PTSD, are further factors that make Mr. Miller’s circumstances exceptional.

CONCLUSION [ 39 ] Based upon the totality of the circumstances, therefore, particularly that Mr. Miller sought to honour his agreement to appear by video, the consent to such appearance by the parties pursuant to

section 714.8, and there being nothing that would cause me to exercise my discretion to override such consent, I am satisfied that trial fairness dictates that Kyle Miller be permitted to appear by video from the B.C. Provincial Court in Vancouver. [ 40 ] It is so ordered. _____________________________ ROBERT P. STACk Justice