HIS MAJESTY THE KING - v. -, 2022 SKKB 241

KING’S BENCH FOR SASKATCHEWAN Citation : 2022 SKKB 241 Date: 2022 11 0 7 Docket: CRM-RG-00085-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - KADEN PARISEE PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

RESTRICTION ON PUBLICATION: There is a court order prohibiting the publication or broadcast of any evidence tendered or submissions made in this application, including this decision, until the jury has retired to consider its verdict. The restriction on publication has been lifted pursuant to the judge’s order of November 9, 2023. Counsel: Nathanial B. Scipioni for the Crown Christina G. Skibinsky for the accused Kaden Parisee RULING RE: COMPLAINANT’S APPLICATION UNDER S. 486.2 OF THE CRIMINAL CODE November 7, 2022 TOCHOR J. I. Introduction

[1] Kaden Parisee faces two counts in an Indictment which alleges he committed offences contrary to s. 272(1)(c.1) and s. 279(2) of the Criminal Code, RSC 1985, c C-46, on February 8, 2020. His trial before a jury was scheduled to commence onNovember 7, 2022. [2] The complainant requests an order permitting her to testify from outside of the courtroom pursuant to s. 486.2of the Criminal Code. She asks to testify by video from a separate room within the courthouse. Mr.

Parisee strenuously objects to theapplication and argues the court’s discretion should be exercised by compelling her to testify in the courtroom and personally before thejury. [3] This application was heard on November 2, 2022, and, at that time, I advised the parties I would provide adecision within a short time. [4] However, after conducting further jury case management conferences which were required to address otherunrelated pre-trial matters, I advised the parties on November 4, 2022, that I would grant the complainant’s application to testify fromoutside the courtroom, with written reasons to be provided at a later date.

These are those reasons. II. Brief

Summary of the Legal Framework [5] The statutory basis for this application is found in s. 486.2 of the Criminal Code which provides the court witha discretion to permit a witness to testify from outside of the courtroom: Testimony outside court room – witnesses under 18 or who have a disability 486.2 … Other witnesses

(2) Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of awitness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that wouldallow 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 andcandid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. [6] The critical tests are whether such an order “… would facilitate the giving of a full and candid account …” orwhether it “… would otherwise be in the interest of the proper administration of justice …” to make such an order. [7] In R v Theodore, 2020 SKCA 131, 399 CCC (3d) 125 [Theodore], the court noted that such an order is adeparture from the presumptive rule in an adversarial trial.

However, the court continued, Parliament chose to provide trial judges withthe ability to order accommodations for witnesses for the purpose of enhancing the truth-seeking function, at para. 106: [106] An order permitting a witness to testify from outside the courtroom is a departure from the presumptive rule in an adversarialtrial that witnesses give their testimony in the presence of the accused and the trier of fact. This presumptive rule, of course, is notunyielding.

In R v Levoigiannis, (SCC), [1993] 4 SCR 475, the Supreme Court of Canada recognized that the use oftestimonial accommodations for vulnerable witnesses does not offend the principles of fundamental justice. The right of an accusedperson to be in the sight of witnesses is not an absolute right, but one which is subject to qualification in the interests of justice (seealso R v S.(J.), 2008 BCCA 401, 315 DLR (4th) 24, affirmed 2010 SCC 1, [2010] 1 SCR 3).

By enacting the Criminal Code provisionsrelating to witness accommodation, Parliament has recognized that, in certain circumstances, permitting witnesses to testify remotely orwith the use of a testimonial aid does not sacrifice trial fairness but rather enhances the truth-seeking function of the courts. [8] Further, Theodore explains that an application under this provision involves an exercise of discretionaryauthority, at para. 104: [104] A witness accommodation order made under s. 486.2(2) involves an exercise of discretion on the part of a trial judge. As theplain language of the

section prescribes, before exercising that discretion in favour of making an order for remote or screened testimony,the trial judge must form the opinion that such an order would facilitate the giving of a full and candid account by the witness orotherwise be in the interest of the proper administration of justice. [9] A reading of this provision highlights two avenues to make such an order. The first avenue is to determine ifthe order “… would facilitate the giving of a full and candid account…”.

A second and conceptually distinct avenue is to determine ifsuch an order would “… otherwise be in the interest of the proper administration of justice”. Both Crown and defence argued thisapplication solely on the basis of the first avenue, and I address it in the same way. [10] Theodore also points out that special circumstances are not required before such an order is made.

Instead, theoperative inquiry is now whether such an accommodation will assist the truth-seeking function of the trial: [109] … [T]he new threshold under s. 486.2(2) does not require special circumstances for a judge to exercise his or her discretion infavour of making the order (R v Blake and Khabemba, 2019 ONSC 6026 at para 20).

A different sort of analysis is now required, withthe operative inquiry being whether making a testimonial accommodation order will enhance, rather than impede, the truth-seekingfunction of the trial (R v A.E., 2017 ONSC 3464 at para 22). [11] Finally, Theodore at para 112 endorsed the following articulation of one of the key questions in such anapplication: “the question in this respect becomes, is there evidence that allowing the witness to testify out of sight would make it easy,easier, or less difficult for the witness to give a full and frank testimony.” [12] The Criminal Code also provides specific direction on what factors must be considered by a judge in

determining whether to make an order under s. 486.2(2) ; this direction is set out in s. 486.2(3) : 486.2 … Factors to be considered

(3) 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. [ 13 ] It is noteworthy that this list provides mandatory direction: “…the judge … shall consider…” the enumerated factors. As well, the list is intended to be non-exhaustive, by virtue of the inclusion of para. (h). [ 14 ] It is within this legal framework that I must consider the complainant’s application. III. Applying the Legal Framework [ 15 ] In this application, the complainant testified and explained the reasons why she seeks to testify from a separate room in the courthouse, outside of the courtroom.

She stated she does not want to see the accused and that she is afraid of him. She stated that the thought of seeing him in person makes her nervous and brings on anxiety; further, she is uncomfortable talking about the subject matter of the sexual assault allegations in front of a jury. She also stated she feels fear and anxiety about the prospect of testifying.

She pointed out that, when she testified at the preliminary inquiry from outside the courtroom, this accommodation made her feel less anxious and nervous. [ 16 ] The complainant acknowledged in cross-examination that she will abide by any order the court makes and she will give truthful testimony if she is required to appear personally in court. [ 17 ] The accused opposes the application. He submits the complainant’s acknowledgment she will give a truthful account if ordered to testify in person renders this application unnecessary.

He also submits that testifying from outside the courtroom will reduce the solemnity of the judicial proceeding.

In this regard, he relies upon R v J.T.H. , 2021 BCPC 76 at paras 16-17 [ J.T.H. ] where the court, in determining an application under s. 714.1 of the Criminal Code , voiced a concern that the public’s level of respect for the court processes would be reduced if “… participants simply dial in from their living rooms at their convenience …”. [ 18 ] Finally, the accused submits such an order will create practical problems with cross-examining the complainant on previous statements. [ 19 ] After considering the factors set out in s. 486.2(3) in the context of the legal framework set out above, I am of the opinion that such an order would facilitate the giving of a full and candid account. [ 20 ] I address the statutory factors below.

Because some of the factors are not applicable in these circumstances – factors (b), (d), (e), (f), (f.1) – I will not address them. I will only address each of the factors that are applicable. s. 486.2(3) (a): the age of the witness [ 21 ] The complainant testified she is now 19 years old; she was therefore 16 years old at the time of this alleged offence.

Her relatively young age at the time of the alleged offence is a factor that weighs in favor of making such an order. s. 486.2(3)(c): the nature of the offence [ 22 ] The nature of the allegations – sexual assault while choking the complainant and unlawful confinement – also weigh in favor of making such an order. These are serious charges which may require testimony of highly personal or sensitive activity between the parties. The allegations of violence and confinement may also require testimony regarding matters which could cause distress or anxiety in a witness.

In these circumstances, it is understandable that testimony about these kinds of alleged offences will be made less difficult with an order under s. 486.2 of the Criminal Code . s. 486.2(3)(g): society’s interest in encouraging the reporting of offences and the participation of complainants and witnesses in the

criminal justice process [ 23 ] In light of the nature of the alleged offences and the relatively young age of the complainant, I also conclude that society’s interest in the participation of complainants in the criminal justice process weighs strongly in favor of such an order.

In these circumstances, I am satisfied that this accommodation will serve to encourage participation in the court process. s. 486.2(3)(h): any other factor that the judge or justice considers relevant [ 24 ] As explored during oral submissions on this application, I also conclude it is important, in these circumstances, to consider other factors which are not expressly enumerated in s. 486.2(3). [ 25 ] The first additional factor that may be considered is the impact of such an order on the accused’s right to make full answer and defence.

Here, it is agreed the credibility of the respective parties is the focus of the case. The accused submits the complainant’s personal attendance is necessary to permit him a fair opportunity to cross-examine her.

He submits that, because credibility is the paramount issue, he is entitled to cross-examine her in a way which permits counsel to observe her demeanor and to ascertain other non-verbal cues that she may display. [ 26 ] However, in these circumstances, I conclude that allowing the complainant to testify from outside of the courtroom does not unfairly diminish the accused’s right to cross-examine her. [ 27 ] A number of case examples, decided in the context of applications under s. 714.1 of the Criminal Code , have held that complainants may be permitted to testify about serious offences, including sexual assault, by video link.

These examples include: R v Gordon, 2021 SKQB 131 at paras 22-28 [ Gordon ] ; R v Burns , 2020 SKQB 228 at para 24 [ Burns ] ; R v Mischuk , 2021 ONCJ 202 at paras 2 and 5 ; R v Lawrence , 2021 NLSC 7 at paras 17-19 ; and R v Turner , 2002 BCSC 1135 at paras 10-12 .

In Burns , for example, the court held that testimony by video would not limit the effectiveness of cross-examination, at para. 27: [27] I conclude that permitting witnesses, even significant witnesses in the trial of serious offences to testify by suitable video links, does not deprive accused persons of a fair trial provided the equipment operates to its usual expected standards. Further, I am of the opinion that permitting such video link testimony should not be presumed to limit the effectiveness of cross-examination.

I have no evidence nor heard arguments that demonstrates to me that the effectiveness of cross-examination will be adversely impacted. [ 28 ] While I accept that it is usually preferable to have a complainant testify in person, the case law establishes credibility issues can be appropriately assessed when a complainant testifies from outside the courtroom. On this basis, I conclude the accused’s right to make full answer and defence is not unfairly impaired by an order under s. 486.2 .

This factor, then, does not weigh materially against such an order. [ 29 ] A second additional factor that may be considered is the impact on the jury’s ability to meaningfully assess the credibility of witnesses, especially that of the complainant. [ 30 ] For the same reasons set out above, with respect to any unfair impairment of the accused’s right to make full answer and defence, I conclude the jury’s ability to assess credibility is not unfairly impacted.

As pointed out in Burns at para 19 , the court may take judicial notice that the presentation of evidence and argument by video “… is common in this court and in my experience the quality is consistently good”.

In these circumstances, and after having heard the complainant testify by video in this application from a separate room in the courthouse, I conclude the proposed arrangements for the complainant’s testimony will not unfairly impact the jury’s ability to meaningfully assess her credibility. [ 31 ] Further, the accused submits that having the complainant testify from outside the courtroom will make it difficult to cross-examine her on previous statements or her prior testimony at the preliminary inquiry.

However, any difficulties of this kind can be adequately and easily addressed by proper planning on counsel’s part. This planning could include providing the complainant with access to appropriate documents while the cross-examination is in progress. Further, the fact the complainant proposes to testify from a room located in the courthouse – where documents can be provided to her in a matter of moments, if necessary – will alleviate any potential difficulties in this regard.

Further still, the ability to cross-examine the complainant on parts of the video statement she provided to police can also be facilitated by the existing courtroom technology. [ 32 ] I therefore conclude the jury’s ability to assess the complainant’s credibility in these circumstances will not be unduly or unfairly impacted. This factor, therefore, does not weigh against making a s. 486.2 order. [ 33 ] A third additional factor that can be considered is the impact of such an order on the solemnity surrounding the testimony of a witness in a court proceeding.

The accused highlights this consideration by referring to J.T.H. at paras 16-17 . [ 34 ] Here, however, I conclude this concern is ameliorated by the fact that the complainant will be testifying by video from a separate room in the courthouse.

While admittedly not recreating the identical experience as appearing in a court room with the attendant surroundings and trappings, the proposed accommodations nonetheless substantially maintain the solemnity of the proceedings. [ 35 ] I conclude this factor does not weigh heavily against the making of an order under s. 486.2. [ 36 ] When I turn to the exercise of weighing all the factors to determine if an order under s. 486.2 is appropriate in these circumstances, I keep in mind the same considerations I expressed when weighing the statutory factors in s. 714.1 in Gordon at paras 41-42 . [ 37 ] First, the factors enumerated in s. 486.2(3), or s. 714.1 , are not intended to be considered as part of a checklist or a series of separate hurdles for an applicant to overcome before such an order can be granted.

Nor is consideration of the factors meant to be seen in the context of completing a scorecard, with the result being determined by counting whether more of the factors weigh in

favor, or against, such an order. Instead, the factors must be considered in the broader context of determining if, in these circumstances, the statutory test in s. 486.2 is met. [ 38 ] Second, I am also mindful that each of the statutory factors are not automatically given equal weight in every case. Some of the factors may have greater weight attached to them than others, depending on the circumstances. In different circumstances, the same factors may be given less weight.

As set out in Gordon at para 42 , the key consideration is balancing the interests of the participants in accordance with the interests of justice and the objectives of the statutory direction. [ 39 ] After weighing all the factors in the context of the evidence and the submissions of the parties, I conclude an order pursuant to s. 486.2 of the Criminal Code should be granted permitting the complainant to testify by video from a separate room within the courthouse.

Factors such as the age of the complainant at the time of the offence, the nature of the subject matter of the charges, and the evidence she provided as to her fear and anxiety of testifying before the accused and a jury in open court, weigh heavily in favor of such an order.

As well, the suitability of the location and arrangements made for her to testify from within the courthouse also weighs in favor of such an order. [ 40 ] After considering the factors set out above, I am of the opinion that, to use the words of Theodore at para 112 , allowing the complainant to testify from a separate room inside of the courthouse will “… make it easy, easier, or less difficult for the witness to give a full and frank testimony”. [ 41 ] I therefore grant the complainant’s application pursuant to s. 486.2 of the Criminal Code to testify by video from outside of the courtroom. IV.

Summary of Orders [ 42 ] After hearing the viva voce evidence provided by the complainant, and considering the submissions of the parties, I make the following orders: (

a) the complainant’s application pursuant to s. 486.2 of the Criminal Code is granted; and (

b) the complainant shall be permitted to testify by video from a separate room within the courthouse. J. M.D. TOCHOR