HIS MAJESTY THE KING CROWN - v. -, 2023 SKKB 31

KING’S BENCH FOR SASKATCHEWAN 2023 SKKB 31 Date: 202 3 02 10 Docket: CRM-SA-00002-2022 Judicial Centre : Saskatoon BETWEEN: HIS MAJESTY THE KING CROWN - and - IVAN ROBERTO MARTELL ACCUSED Counsel: Linh N. Le for the Crown Patrick M. McDougall for the Accused FIAT ROBERTSON J. February 10, 2023 Contents Paragraph INTRODUCTION .. 1

SECTION 657.3 EXPERT EVIDENCE . 3 Relevance . 12 Necessity . 19 Exclusionary Rule . 23 Properly Qualified . 25 Education and/or experience in specialized field . 26 Previous qualification as expert 32 Impartiality . 36 Conclusion . 42

Balancing potential benefits and risks . 43 Conclusion . 45

SECTION 714.1 REMOTE TESTIMONY BY VIDEOCONFERENCE TECHNOLOGY 46 Location and personal circumstances of the witness . 51 Costs to appear personally . 57 Nature of witness’ anticipated evidence . 63 Suitability of location from where witness will testify . 67 Accused’s right to a fair and public hearing . 71 Nature and seriousness of the offence . 84 Potential prejudice to the parties from not seeing witness . 88 Conclusion . 89 INTRODUCTION [ 1 ] The accused, Ivan Roberto Martell, is charged with first degree murder.

The judge alone trial began on January 30, 2023 and adjourned on January 31 to continue February 27, 2023 at 10:00 a.m. in the Saskatoon courthouse. [ 2 ] This fiat considers two applications by the Crown: first, under s. 657.3 of the Criminal Code , RSC 1985, c C- 46 , to qualify Bruce Funk to give expert opinion evidence; and second, under s. 714.1 to allow Mr. Funk and the pathologist, Dr. Eric Bol, to testify remotely by videoconference technology. For the following reasons, both applications are granted.

SECTION 657.3 EXPERT EVIDENCE [ 3 ] Opinion evidence is presumptively inadmissible. There are, however, exceptions to the general rule, such as to matters of common knowledge and experience, such as height or distance. Another exception is for persons specially qualified by education or experience or both to give opinions within their area of expertise. [ 4 ] The Criminal Code in s. 657.3 provides rules for qualification of expert witnesses and admission of expert evidence: Expert testimony 657.3

(1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if (

a) the court recognizes that person as an expert; and (

b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence. Attendance for examination

(2) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration or report. Notice for expert testimony

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, (

a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by (

i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and (iii) a statement of the qualifications of the proposed witness as an expert;

(

b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonableperiod before trial, provide to the other party or parties (

i) a copy of the report, if any, prepared by the proposed witness for the case, and (ii) if no report is prepared, a

summary of the opinion anticipated to be given by the proposed witness and the grounds on which it isbased; and (

c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall,not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b). [5] The Crown’s notice of expert testimony dated December 22, 2022 sought to have Bruce Funk qualified as anexpert to give opinion evidence in the areas of: (

a) Interpretation of cellular phone records; (

b) Analysis of cellular tower information and mapping cellular information; (

c) Understanding cellular site transmissions and sector separations; and (

d) Tracking and locating cellular telephone. [6] The Crown’s notice attached a statement of qualifications and a report prepared by Mr. Funk. The accusedopposed his qualification as an expert. [7] The leading cases on expert opinion evidence are R v Mohan, (SCC), [1994] 2 SCR 9[Mohan] and White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 [White Burgess]. [8] In Mohan at 20, Sopinka J. for the Supreme Court set out four criteria for admission of expert evidence:

(1) Expert Opinion Evidence Admission of expert evidence depends on the application of the following criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. [9] In White Burgess, the Supreme Court added a second step or “gatekeeping stage” to the analysis. Cromwell J.for the court, at para. 54, described the gatekeeping stage as balancing the potential helpfulness of the evidence with the risks associatedwith expert evidence:

(2) The Gatekeeping Exclusionary Discretion [54] Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysisdeveloped following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence andimpartiality into account in weighing the evidence at the gatekeeping stage.

At this point, relevance, necessity, reliability and absence ofbias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility thresholdand thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence.

At the end of the day,the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing thatare associated with expert evidence. [10] R v Bingley, 2017 SCC 12, [2017] 1 SCR 170 [Bingley] involved qualification of a drug recognition expertunder now repealed s. 254(3.1) of the Criminal Code.

In Bingley at paras 13-17, the Supreme Court summarized the test for admissibilityof expert opinion evidence: [13] The modern legal framework for the admissibility of expert opinion evidence was set out in Mohan and clarified in WhiteBurgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. This framework guards against the dangers ofexpert evidence. It ensures that the trial does not devolve into “trial by expert” and that the trier of fact maintains the ability to criticallyassess the evidence: see White Burgess, at paras. 17-18.

The trial judge acts as gatekeeper to ensure that expert evidence enhances, ratherthan distorts, the fact-finding process. [14] The expert evidence analysis is divided into two stages. First, the evidence must meet the four Mohan factors: (1) relevance;(2) necessity; (3) absence of an exclusionary rule; and (4) special expertise. Second, the trial judge must weigh potential risks against thebenefits of admitting the evidence: White Burgess, at para. 24. [15] If at the first stage, the evidence does not meet the threshold Mohan requirements, it should not be admitted.

The evidencemust be logically relevant to a fact in issue: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 82; R. v. J.-L.J., 2000 SCC 51,[2000] 2 S.C.R. 600, at para. 47. It must be necessary “to enable the trier of fact to appreciate the matters in issue” by providinginformation outside of the experience and knowledge of the trier of fact: Mohan, at p. 23; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275,at para. 57. Opinion evidence that otherwise meets the Mohan requirements will be inadmissible if another exclusionary rule applies:

Mohan, at p. 25. The opinion evidence must be given by a witness with special knowledge or expertise: Mohan, at p. 25. In the case of anopinion that is based on a novel scientific theory or technique, a basic threshold of reliability of the underlying science must also beestablished: White Burgess, at para. 23; Mohan, at p. 25. [16] At the second stage, the trial judge retains the discretion to exclude evidence that meets the threshold requirements foradmissibility if the risks in admitting the evidence outweighs its benefits.

While this second stage has been described in many ways, it isbest thought of as an application of the general exclusionary rule: a trial judge must determine whether the benefits in admitting theevidence outweigh any potential harm to the trial process: Abbey, at para. 76. Where the probative value of the expert opinion evidenceis outweighed by its prejudicial effect, it should be excluded: Mohan, at p. 21; White Burgess, at paras. 19 and 24. [17] The expert opinion admissibility analysis cannot be “conducted in a vacuum”: Abbey, at para. 62.

Before applying the two-stage framework, the trial judge must determine the nature and scope of the proposed expert opinion. The boundaries of the proposedexpert opinion must be carefully delineated to ensure that any harm to the trial process is minimized: see Abbey, at para. 62; R. v.Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 46. [11] I will review the application by first applying the four criteria and then turning to the gatekeeping function. Relevance [12] In Mohan at 20-21, Sopinka J. discussed relevance: (

a) Relevance Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decidedby a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not endthe inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility.This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." See McCormick onEvidence (3rd ed. 1984), at p. 544.

Cost in this context is not used in its traditional economic sense but rather in terms of its impact on thetrial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by itsprejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sensethat its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.

While frequently considered as an aspect oflegal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule(see Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or anexclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing the admissibility ofexpert evidence. [13] Mr. Martell is charged with first degree murder of Allison Moosehunter on March 4, 2020 at or near Saskatoon,Saskatchewan.

The Crown’s theory is that a cell phone belonging to the accused was used on the day of the alleged murder. [14] Saskatchewan Telecommunications Holding Corporation [SaskTel] is a Saskatchewan Crown Corporationproviding the public with telecommunication service in Saskatchewan. Daniel Aspell is employed by SaskTel as Senior Engineer RadioDevelopment Network. Mr. Aspell testified as the first witness in the trial. A universal serial bus (USB) was introduced through Mr.Aspell as Crown Exhibit P-2.

That device contains two maps in KMZ format of the Saskatoon area showing SaskTel transmissiontowers, two PMG graphics of the city of Saskatoon and a graph of statistics to show the state of tower operations around March 4, 2020. [15] The Crown submitted a supporting affidavit of Nadine Perras sworn January 18, 2023 which at paragraph 8summarizes Mr. Funk’s anticipated evidence: 8. THAT the evidence anticipated from Bruce Funk will be technical in nature.

At trial, the Crown anticipates he will provideexpert testimony regarding cell tower mapping, the functioning of the cellular phone system and the analysis of data pertaining to cellphone usage and what the usage of certain cell towers may mean regarding the location of a cell phone. The entirety of his evidence iscontained in his report, which would permit the Court, the defence, and the Crown to follow along as he testifies. [16] The “Cellular Report” prepared by Mr. Funk [Report] was filed for reference only. In the Report, Mr.

Funkstates that he has prepared seven slides showing “the general geographical location of the handset related to [the phone number of thecell phone] between 5:02 hours and 12:34 hours on March 4, 2020.” (page 1 of the Report) The Report goes on to explain that thelocations were identified through SaskTel transmission towers and data provided by SaskTel. While the link may not have been explicit,I infer that Mr. Funk’s analysis is derived from the SaskTel data entered into evidence through Mr.

Aspell as Exhibit P-2. [17] From the material filed and counsel submissions, I infer that the proposed evidence is intended to explain theuse of the cell phone on the day of the homicide, including to place it (and perhaps by inference the accused) at or in the vicinity of thescene of the crime or the victim. If so, then the evidence would certainly be relevant. [18] The relevance criteria is satisfied. Necessity [19] In Mohan at 23-24, Sopinka J. reviewed necessity: (

b) Necessity in Assisting the Trier of Fact In R. v. Abbey, [ (SCC), [1982] 2 SCR 24] supra, Dickson J., as he then was, stated, at p. 42: With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's

function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical natureof the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely tobe outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions withouthelp, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App.

R. 80, at p. 83, per Lawton L.J.) This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is notquite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that theopinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge orjury": as quoted by Dickson J. in R. v. Abbey, supra.

As stated by Dickson J., the evidence must be necessary to enable the trier of fact toappreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, (SCC), [1931] S.C.R. 672, atp. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted bypersons with special knowledge". More recently, in R. v.

Lavallee [R v Lavallee, (SCC), [1990] 1 SCR 852], supra, theabove passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. Thejudgment stressed that this was an area that is not understood by the average person. [20] Both Mr. Aspell and Mr. Funk testified that ordinary people would not be able to interpret the SaskTel data.

Asthe trier of fact, I am satisfied that without expert assistance, I would be unable to reliably interpret the SaskTel data, in particular as tothe use and location of the cell phone on the date of the homicide. [21] In R v Fertuck, (29 September 2021) Saskatoon, CRM-SA-00035-2020 (Sask QB) at 5 [Fertuck], Danyliuk J.noted the decision of the Ontario Court of Appeal in R v Ranger, 2010 ONCA 759 [Ranger].

The Ontario Court of Appeal in Ranger atparas 16-17, accepted that the trial judge could take judicial notice of the tracking of cell phone signals as the phone signal passed fromtelecommunication transmission towers and the location of the cell phone. Danyliuk J. commented at page 5 that he was not yetcomfortable with similarly taking judicial notice, adding “This is an area where expert assistance is required.” I agree. [22] The necessity criteria is satisfied.

Exclusionary Rule [23] In Mohan at 25, Sopinka J. cautioned that even if the other criteria were satisfied, expert evidence remainedsubject to the other exclusionary rules of evidence: (

c) The Absence of any Exclusionary Rule Compliance with criteria (a), (

b) and (

d) will not ensure the admissibility of expert evidence if it falls afoul of an exclusionary rule ofevidence separate and apart from the opinion rule itself. … [24] No other exclusionary rule was identified that would apply to the proposed evidence. This criteria is thereforesatisfied.

Properly Qualified [25] The question of whether the proposed witness is properly qualified to give opinion evidence as an expertrequires consideration of: the witness’ education or experience or both in the specialized field in which they will testify; any previousqualification to testify as an expert witness; and their ability to be independent and impartial as a witness. Education and/or experience in specialized field [26] In Mohan at 25, Sopinka J. stated the requirements to qualify as an expert: (

d) A Properly Qualified Expert Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study orexperience in respect of the matters on which he or she undertakes to testify. [27] Mr. Funk testified by videoconference in a voir dire on January 30, 2023. His statement of qualifications, titled“Bruce Funk Licensed Security Consultant” and dated October 4, 2021, was filed as Exhibit P-1 [Funk CV]. [28] Mr. Funk was employed by B.C. Tel and Telus Corporation for 31 years from 1969 until 2001, retiring asSecurity Manager. (Telus and B.C.

Tel merged in 1999.) The Funk CV at pages 3-4 describes “On the Job Skills Training”, includingunderstanding and interpreting cellular site transmissions and tracking and locating cellular phones. He was one of only two B.C. Telsecurity technicians and assisted other telecommunications companies and law enforcement agencies with their investigations. His“retirement” did not end his work life. He continues to work as a security consultant in this specialized field, stating he stays up to dateby working on a regular basis. Mr. Funk is now 74 years of age. [29] Mr.

Funk described his expertise as in basic information on how cell phones work, in particular the relationshipbetween cell phones and cell towers to determine location. Mr. Funk had no involvement in the police investigation, apart from hisanalysis and Report, and has no knowledge of the accused. [30] The accused argued that, given the rate of technological change in telecommunications, Mr. Funk’s experienceis dated and he lacks formal education in the fields of claimed expertise, inviting the court to draw a comparison with Mr. Aspell’sformal education. (Mr.

Aspell has a master’s degree in Science and Engineering.) Mr. Funk was not defensive under cross-examination.He agreed that mobile phone technology “constantly changes”, but went on to explain how he keeps up to date through his business work

and contacts who share information. [31] I am satisfied that Bruce Funk has, through a combination of his experience and training, acquired specialknowledge in the areas described in the notice of expert testimony and is qualified to give opinion evidence in those fields. To thatextent, therefore, the application satisfies this part of the qualification criteria. Previous qualification as expert [32] The Funk CV at page 6 lists areas in which Mr.

Funk has been qualified as an expert and at pages 7 – 9 liststrials in which he was qualified and testified as an expert. 27 cases are listed over the period of 2000 – 2021. At pages 10-11 there is alsoa list of 13 other trials in which Mr. Funk testified as a witness for the purpose of entering maps and providing technical (but not expert)evidence.

While not conclusive, this is an impressive record. [33] Of the 27 cases in which he testified as an expert witness, all but one occurred in British Columbia courts. (Mr.Funk also testified in the Alberta Court of Queen’s Bench, but not as an expert witness.) The most recent British Columbia case wasSavaia v Stellinga, 2020 BCSC 156, which records Mr. Funk’s qualification at para. 36: [36] Mr. Funk was qualified as an expert in the

interpretation of cell phone records and the way cell phones interact with cell towersor cell sites. As it turns out, his evidence was largely factual. [34] The only decision outside British Columbia in which Mr. Funk has been qualified as an expert is fromSaskatchewan and is also the most recent – Fertuck. Fertuck is especially relevant, not only because it is a recent decision of this Court,but also because the nature of the proposed evidence and area of expertise was the same as proposed in this case (see Fertuck at 2). [35] The application satisfies this part of the qualification criteria.

Impartiality [36] In White Burgess at paras 52-54, the Supreme Court modified the analytical framework to address concernsabout the expert’s independence and impartiality when considering whether the witness is “properly qualified” and again at the second“gatekeeping” stage when doing the cost/benefit analysis. F. Situating the Analysis in the Mohan Framework

(1) The Threshold Inquiry [52] Courts have addressed independence and impartiality at various points of the admissibility test. Almost every branch of theMohan framework has been adapted to incorporate bias concerns one way or another: the proper qualifications component (see, e.g.,Bank of Montreal [Bank of Montreal v Citak, (QC CQ), [2001] OJ No 1096 (QL) (S.C.J.)]; Dean Construction[Dean Construction v M.J. Dixon Construction Ltd., 2011 ONSC 4629, 5 CLR (4th) 240]; Agribrands Purina Canada Inc. v.Kasamekas, 2010 ONSC 166; R. v. Demetrius, (Ont.

S.C.J.)); the necessity component (see, e.g., Docherty [R vDocherty, 2010 ONSC 3628]; Alfano [Alfano v Piersanti, 2012 ONCA 297, 291 OAC 62]); and during the discretionary cost-benefitanalysis (see, e.g., United City Properties [United City Properties Ltd. v Tong, 2010 BCSC 111]; Abbey [R v Abbey, 2009 ONCA 624, 97OR (3d) 330] (ONCA)). On other occasions, courts have found it to be a stand-alone requirement: see, e.g., Docherty; International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2006 BCSC 2011; Casurina Ltd. Partnership v. Rio Algom Ltd. (2002), (ON SC), 28 B.L.R. (3d) 44 (Ont.

S.C.J.); Prairie Well Servicing Ltd. v. Tundra Oil and Gas Ltd., 2000 MBQB 52, 146Man. R. (2d) 284. Some clarification of this point will therefore be useful. [53] In my opinion, concerns related to the expert’s duty to the court and his or her willingness and capacity to comply with it are bestaddressed initially in the “qualified expert” element of the Mohan framework: S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’Canadian Criminal Evidence (5th ed. (loose-leaf)), at 12:30.20.50; see also Deemar v.

College of Veterinarians of Ontario, 2008 ONCA600, 92 O.R. (3d) 97, at para. 21; Lederman, Bryant and Fuerst [S.N. Lederman, A.W. Bryant and M.K. Fuerst, The Law of Evidence inCanada (4th ed. 2014)], at pp. 826-27; Halsbury’s Laws of Canada: Evidence [2014 Reissue, contributed by Hamish C. Stewart.Markham, Ont.: LexisNexis, 2014], at para. HEV-152 “Partiality”; The Canadian Encyclopedic Digest (Ont. 4th ed. (loose-leaf)), vol.24, Title 62 ― Evidence, at §469. A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properlyqualified to perform the role of an expert.

Situating this concern in the “properly qualified expert” ensures that the courts will focusexpressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, at 12:30.20.50; Paciocco, “Jukebox” [D.M.Paciocco, “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune of Partial Experts (2009), 34Queen;s L.J. 565], at p. 595.

(2) The Gatekeeping Exclusionary Discretion [54] Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysisdeveloped following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence andimpartiality into account in weighing the evidence at the gatekeeping stage.

At this point, relevance, necessity, reliability and absence ofbias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility thresholdand thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day,the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing thatare associated with expert evidence. [37] Mr.

Funk, in the voir dire, satisfactorily explained his understanding of his responsibilities as an expert witness.It is also the duty of the lawyer calling the witness to explain those responsibilities to any witness qualified to give expert opinionevidence.

[ 38 ] The accused argued that Mr. Funk would not be impartial because he had been retained and was being paid by the Crown. On its own, this is not disqualifying. Many expert witnesses are retained by one side or the other. They are professional witnesses and entitled to payment for their work. [ 39 ] In Fertuck at 5, Danyliuk J. commented on disqualifying relationships: Having some connection with a party to the litigation is not fatal. Many experts will have such a connection, even a financial connection.

It is a “matter of fact and degree” as to whether the connection is such that the proposed expert should be disqualified. The areas of greater concern identified in White Burgess are: - Whether the expert has a direct financial interest in the outcome of the case; - Whether there is a close familial relationship with a party; - Whether there is likely professional liability if the expert’s opinion is rejected; - Whether the expert has essentially assumed an advocacy role for a party. [ 40 ] None of these potential concerns were identified with Mr. Funk. Mr.

Funk testified that he did not know the accused and, apart from analyzing the SaskTel data at the request of the Crown prosecutor, had no involvement in the criminal investigation. He also testified that he has little knowledge of the case, nothing to benefit from the outcome and was unbiased. Mr. Funk testified that “It doesn’t matter who requested it.”, referring to his Report. [ 41 ] The application satisfies this part of the qualification criteria. Conclusion [ 42 ] I conclude that the qualification criteria is fully satisfied.

Balancing potential benefits and risks [ 43 ] The Supreme Court, in Mohan at 21 quoted above, referred, in the context of the relevance criteria, to the “cost benefit analysis” that should be undertaken when deciding to admit opinion evidence: …Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs."… [ 44 ] I am satisfied that the benefit, based on relevance and necessity, of the opinion evidence does outweigh any potential prejudice to the accused.

The proposed evidence is relevant and necessary for the trial judge to properly understand the technical evidence. Conclusion [ 45 ] For the reasons given above, I grant the Crown’s application and do qualify Bruce Funk to give opinion evidence at trial on: (

a) interpretation of cellular phone records; (

b) analysis of cellular tower information and mapping cellular information; (

c) understanding cellular site transmissions and sector separations; and (

d) tracking and locating cellular telephones.

SECTION 714.1 REMOTE TESTIMONY BY VIDEOCONFERENCE TECHNOLOGY [ 46 ]

Section 714.1 reads as follows: Audioconference and videoconference — witness in Canada 714.1 A court may order that a witness in Canada give evidence by audioconference 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) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference. [ 47 ]

Section 714.1 provides the court with discretionary authority to allow a witness to testify remotely by audioconference or videoconference if the court is of the opinion that such remote testimony is “appropriate having regard to all of the circumstances, including” the listed factors. [ 48 ] The Crown provided copies of five decisions in which courts have allowed testimony by videoconference technology: (

a) R v Denham , 2010 ABPC 82 , 500 AR 211 [ Denham ] (Rosborough P.C.J.) ; (

b) R v Nguyen , 2015 SKQB 382 , [ Nguyen ] (McMurtry J.) ; (

c) R v Burns , 2020 SKQB 228 [ Burns ] (Scherman J.) ; (

d) R v Hansen , 2022 SKQB 34 [ Hansen ] (Robertson J.) ; and (

e) R v Abdulkadir, 2022 ABQB 174 [ Abdulkair ] (Renke J.) . [ 49 ] It is important to note that only Denham, Burns and Hansen involved applications under s. 714.1, which applies to witnesses testifying from locations in Canada. ( Hansen also involved an application under s. 714.2, which applies to witnesses testifying from outside Canada.) Nguyen involved an application under s. 714.2. Abdulkair involved an application under s. 486.2, which allows complainants in sexual assault cases to testify from outside the courtroom or behind a screen. The criteria for each

section is different, so care must be taken in applying decisions. [ 50 ] In Hansen at paras 29-63 and R v Patron , 2022 SKKB 206 , at paras 3 – 23 [ Patron ] , I applied s. 714.1 to allow witnesses to appear by videoconference from other locations in Canada. Those decisions considered and followed the approach set out in Burns . Burns was also cited in R v Gordon , 2021 SKQB 131 [ Gordon ] , a decision of Tochor J. As was done in those decisions, I will review the statutory criteria against the application.

Location and personal circumstances of the witness [ 51 ] In Denham at para 19 , Rosborough P.C.J. stated that the farther away the witness, the more compelling the need for remote testimony. [ 52 ] Mr. Funk is 74 years old and works part-time as a security consultant. He resides in Langley, British Columbia and works throughout the Vancouver, British Columbia area. [ 53 ] Dr. Bol is a forensic pathologist. He resides in Maple Ridge, British Columbia. Dr.

Bol is a single parent with younger children. [ 54 ] The driving distance between Vancouver and Regina, Saskatchewan is over 1,700 kilometers and crosses mountain ranges. While there are still some direct flights between the two cities, other flights involve connecting flights through other cities. [ 55 ] There is also concern with unnecessary travel and exposure during the continuing COVID-19 pandemic. Burns at para 12, Gordon at para 17, Hansen at para 63, and Patron at para 17 , all referred to the COVID-19 pandemic as a relevant circumstance favouring an application for remote testimony. I consider Mr.

Funk to be at a higher risk given his age of 74, given the Government of Saskatchewan’s decision late last year to prioritize COVID-19 booster vaccines for persons over 70. [ 56 ] This factor favours granting the applications.

Costs to appear personally [ 57 ] In Denham at para 26 , Rosborough P.C.J. observed: [26] Anyone who has travelled by air in the past decade is aware of the fact that there are substantial delays attendant upon that means of transportation, not the least of which is an ever increasing demand for security screening. … In my view, the factor of cost includes the cost of lost or unavailable services from a witness such as this toxicologist. … [ 58 ] While Denham was written in 2010, his observation about air travel remains true today. [ 59 ] In Burns at para 13 , Scherman J. commented: [13] The costs of witnesses appearing in person is of course always a relevant consideration whether those costs are borne individually by the witness or by the public purse.

The judicial system has a responsibility to minimize the costs of litigation to both litigants and taxpayers. … [ 60 ] There would be costs of air travel to Regina and hotel accommodation. Direct flights between Vancouver and Regina are limited. The Crown estimates the cost of travel at $739 for Mr. Funk and $745 for Dr. Bol. (see Exhibits P-1 and P-2:

affidavits of Nadine Perras) [61] In addition to the financial cost, there is a real cost in lost time which is likely more significant. Travelling fromVancouver to Regina to testify and then return would likely take a few days. This is of particular concern for Dr. Bol. Forensic pathologyis a demanding field of practice. His absence could be expected to either shift the burden of work to other pathologists or slow thedelivery of critical services. [62] This factor favours granting the application. Nature of witness’ anticipated evidence [63] The Crown says the evidence expected from both Mr. Funk and Dr.

Bol is factual and should beuncontroversial. The accused disputes this. [64] In Denham at para 29, Rosborough P.C.J. commented that technical evidence and expert evidence will be morereadily received by video than evidence of an eyewitness to a crime: [29] Where the “nature of the witness’ anticipated evidence” is technical or incidental to the issues being litigated, it would appearthat courts are more amenable to authorizing the use of video evidence. It is also my view that expert opinion evidence should morereadily be received by video than the evidence of an eyewitness to a crime, for instance.

I accept counsel’s submission that directedcross-examination of the witness may be necessary based upon certain assumptions which are disputed. Nevertheless, I am of the viewfor the reasons relating to credibility assessments which follow, that cross-examination of this expert witness will not be compromised byher virtual (as opposed to in-person) attendance. [65] The evidence of Mr. Funk and Dr. Bol fall into this category of evidence.

The reports on which they may becross-examined have been disclosed and copies should be available to all parties for reference during questioning. [66] I am satisfied that the nature of the anticipated evidence is appropriate for video testimony. This factor favoursgranting the application. Suitability of location from where witness will testify [67] The Crown said Mr. Funk would testify from his home office in Vancouver. The Crown said Dr. Bol wouldtestify from a private office in a Vancouver hospital in the Vancouver area.

Both locations are private and equipped forvideoconferencing. [68] The accused pointed out that there can be technical difficulties with videoconferencing. While this is a fair point,experience has shown that it generally works well. And the Saskatoon courthouse has technical support readily available to deal withproblems that arise.

Finally, as I mentioned at the hearing of the applications, it is the party requesting remote testimony which runs therisk if the witness is not able to testify because of technical problems. [69] The potential for problems was recognized by both McMurtry J. in Nguyen at para 40, and Scherman J. in Burnsat para 30.

They similarly held that the potential for problems was insufficient reason to deny the application, while cautioning that sucha failure might invite further applications: Nguyen at para 17: [17] … if the technology available at trial proves inadequate to the task, the defence application may have to be re-visited. … Burns at para 30: [30] … If the technology fails or proves inadequate to the needs of the court and counsel, that can be addressed at that time. [70] This factor favours granting the application.

Accused’s right to a fair and public hearing [71] The Saskatoon courtroom is equipped with videoconferencing technology, including sound amplification andlarge video screens, which enable the judge, counsel, parties and public to hear and see witnesses testifying remotely. [72] The accused opposes the application, arguing the accused has the right to confront Crown witnesses in personand that remote testimony will impair assessment of witness credibility. [73] The right of a criminal accused “to be confronted with the witnesses against him” is constitutionally entrenchedin the Constitution of the United States of America by the Sixth Amendment to the United States Bill of Rights.

While derived from ourshared common law, there is no such constitutional right in Canada. In R v Levogiannis, (SCC), [1993] 4 SCR 475, theSupreme Court rejected a constitutional challenge to s. 486(2.1) of the Criminal Code, authorizing screening of the complainant. Thechallenge relied upon ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms. Denham at para 17, and Abdulkair at para 39,held there was no right by an accused to “confront” Crown witnesses in person so as to disallow remote testimony. [74] At the same time, I agree with the view expressed in Denham at para 22, that in-person testimony remains thestandard and preferred mode of appearance. There must be a good reason to substitute remote testimony beyond witness preference or

mere convenience. [ 75 ] As discussed in Burns at para 27, Hansen at para 57, and Patron at para 15 , the court’s technical resources, ability and comfort level with remote testimony using videoconferencing technology have improved in the past few years, compelled by necessity occasioned by the COVID-19 pandemic. Our experience has led me and other judges to conclude that trial fairness is not compromised by remote testimony, provided it is done properly. [ 76 ] The accused argues that the personal appearance of Bruce Funk and Dr.

Bol is necessary for a fair trial, since credibility may be in issue. [ 77 ] Parliament, in enacting s. 714.1 and similar provisions, such as ss. 486.2 and 714.2, which allow testimony from outside the courtroom, is taken to have considered both the advantages and disadvantages, including any effect on cross-examination and the ability of the court to assess credibility.

This point is recognized in Nguyen at para 15 . [ 78 ] In Burns at para 17, Gordon at para 28, and Abdulkair at para 34 and 40 , the courts found that video testimony would not impair cross-examination or assessment of credibility: Burns [16] Both of these witnesses are witnesses to facts, what they saw, heard or experienced. They are obviously, particularly Mr. Meade, significant witnesses.

Nonetheless, on the basis of the information before me, I see nothing about the nature of this evidence that makes it inherently unsuitable for presentation, whether in chief or in cross-examination, by videoconference. [17] …The witnesses will be present, albeit by video link, and their demeanor, and generally all actions, reactions, responses, hesitancies, confidence or the lack thereof and other characteristics of their evidence will be observable. I see no impediment to being able to assess their credibility and reliability.

I say this recognizing that when the details of their evidence become known to the court and defence counsel there may be a need to reconsider this circumstance. Gordon [28] Viewed in the context of the above case law, while it may arguably be preferable to have a complainant testify in person, credibility issues can be appropriately assessed with a complainant testifying by video as permitted by s. 714.1 .

Abdulkair [33] The Complainant’s evidence relating to identification, aside from any issues going to her sincerity, will be challenged through cross-examination relating to her ability to have made observations and the accuracy of her observations, her recollection of her observations, and her descriptions of what she claims to have observed and recalled. [34] In my opinion, cross-examination will not be hampered or subverted by remote testimony or testimony with a support person.

The assessment of the cross-examination will turn on the questions asked and the answers given, observable on CCTV, and on the manner of responding, also observable on CCTV. [35] I understand that it may be necessary in the course of examination in chief and cross-examination for the Complainant to refer to video and perhaps to other records. Remote reference to records will create logistical complications. However, as logistical complications, the complications may have practical solutions. . . . (

c) The Nature of CCTV and Virtual Appearance [40] CCTV technology has advanced to the point of generally permitting clear and reliable virtual presence of remote witnesses in trials. Courts have for many years used CCTV technology for appearances by individuals in remote custody. Over the Covid period, Courts have gained considerable experience in the use of remote appearances through CCTV and other media. Nothing in CCTV technology itself disqualifies it as a means for allowing the remote participation of witnesses in trials.

The use of CCTV technology, in itself, does not detract from the solemnity of court proceedings: FM [ R v FM , 2021 BCSC 1867 ] at paras 11, 35. Neither does the technology prevent the trier of fact from evaluating the credibility of witnesses: FM at para 36. [41] Again, if technical difficulties arise and virtual appearance becomes unworkable and interferes with the administration of justice, the use of CCTV technology can be revisited: Boden [ R v Boden , 2021 BCSC 79 ] at para 107. [Emphasis in original] [ 79 ] It is not apparent to me that credibility will be in issue with these witnesses.

They are professionals providing expert evidence on technical matters. Credibility is about honesty – whether the witness is telling the truth. Reliability is about accuracy of evidence. So a witness may be credible in terms of honestly trying to tell the truth, but still be unreliable in the sense of mistaken testimony resulting from faulty observation, frailty of memory or other cause. [ 80 ] Further, appellate courts have cautioned trial courts to place less emphasis on witness demeanor and more on the content of evidence in assessing both credibility and reliability.

A habitual liar might appear credible while an honest, but nervous, witness might appear uncertain. [ 81 ] In Denham at paras 34-35 , Rosborough P.C.J. commented on credibility assessments and video testimony: [34] It is helpful at the outset to comment on observations of a witness’ ‘demeanor’ when making credibility assessments. In

Turner [ R v Turner , 2002 BCSC 1135 ], the court stated in that regard: “As to the assessment of credibility, sometimes members of the public, lawyers and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanor during the course of the witness testifying. In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanor is likely to err.” These comments are amply supported in our jurisprudence. See, for example, R. v. Dehaan , [2002] O.J.

No.430 (C.A.) . [35] There is some support for the proposition that video evidence actually enhances the ability of the parties to cross-examine or otherwise assess credibility. In Heynen [ R v Heynen , 2000 YTTC 502], for instance, the court stated (at para.325): “Witness reaction and demeanor may already be more effectively scrutinized by the use of technology than by the steely eye of a judge sitting apart and usually at an angle to a witness.

Enlarging the picture, viewing the picture of the witness from different angles and replaying the picture of a witness enhance the court’s ability to assess credibility and determine ‘truth’. And further (at para.315): “I found no significant difficulty in evaluating testimony, but rather noted several advantages. Camera angles and close-up views, in many respects, enhance the ability to evaluate demeanor.

Although not required in this case, the opportunity for a video replay affords many advantages over audio replays.” [Emphasis in original] [ 82 ] Even if credibility becomes an issue for these witnesses, I am satisfied that the ability of counsel to cross- examine and the ability of the court to assess credibility should not be adversely affected by video testimony. If it turns out differently at trial, this ruling may be revisited. [ 83 ] This factor favors granting the application. Nature and seriousness of the offence [ 84 ] The offence is serious and the trial may be of public interest.

Indeed, a part from high treason, first degree murder is likely the most serious charge in the Criminal Code . But from my review of case law, the seriousness of the charge is no bar to use of video testimony. [ 85 ] The charges in the cases provided by the Crown covered a range of offences: (

a) Denham : s. 253(

a) and (

b) drinking and driving and Traffic Safety Act , RSA 2000, c T-6 , s 115(2)(p); (

b) Nguyen : s. 272 sexual assault and s. 152 sexual touching; (

c) Burns : s. 235 murder and s. 239 attempted murder; (

d) Hansen : s. 344 assault with a weapon, s. 85(2) use imitation firearm in robbery, and s. 351(2) face covering in robbery; and (

e) Abdulkadir : s. 344 robbery, s. 272(2)(

b) sexual assault causing bodily harm, s. 264.1(1)(

a) threatening, s. 279(2) unlawful confinement, and s. 145(5.1) breach of conditions by being unlawfully at large. [ 86 ] In Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation , 2022 ABCA 239 at para 22 , the Alberta Court of Appeal commented on the use of video testimony in trials of serious criminal charges: [22] Video testimony is permitted by s. 714.1 of the Criminal Code , RSC 1985, c C-46 , and is not uncommon in trials even for serious criminal charges.

For example, Sears [ R v Sears , 2020 SKQB 239 ] and Burns were both murder trials, and in R v Gordon , 2021 SKQB 131 , the complainant was permitted to testify by video conference in a sexual assault trial.

Before the current pandemic circumstances, in R v Turner , 2002 BCSC 1135 , the court permitted a complainant in an aggravated assault case to testify by video link where credibility was in issue stating at paragraph 12: As to the assessment of credibility, sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying.

In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err. [ 87 ] This factor is neutral. Potential prejudice to the parties from not seeing witness [ 88 ] This factor only applies where the request is for testimony by audioconference: Burns at para 28 . Since the application is for testimony by videoconference, this factor has no application here. Conclusion [ 89 ] Having regard to all of the factors, I conclude that it is appropriate to allow both Bruce Funk and Dr.

Eric Bol to testify by videoconferencing technology. The Crown must make the necessary arrangements with Court Services, including technical support in case difficulties arise during their testimony.

J. D.N. ROBERTSON