R. v. Chehil, 2014 NSSC 421

Supreme Court of Nova Scotia Citation: R. v. Chehil , 2014 NSSC 421 Date: 20141121 Docket: Hfx No. 319974 Registry: Halifax Between: Her Majesty the Queen v. Mandeep Singh Chehil Library Heading Judge: The Honourable Justice Michael J. Wood Heard: November 14 2014 in Halifax, Nova Scotia Final Written Submissions: November 18, 2014 Written Decision: November 26, 2014 Subject: Evidence – request for witness testimony by video link pursuant to s. 714.1 of the Criminal Code

Summary: Defence motion to have witnesses testify by video from Vancouver in jury trial. Issues: Should permission be given to have video link testimony? Result: Court allowed some witnesses to testify by video. Trial by jury and that witnesses were being called by the defence were relevant considerations. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R v. Chehil , 2014 NSSC 421 Date: 20141121 Docket: Hfx , No. 319974 Registry: Halifax Between: Her Majesty the Queen v.

Mandeep Singh Chehil Judge: The Honourable Justice Michael J. Wood Heard: November 14, 2014, in Halifax, Nova Scotia

Final Written Submissions: Written Release: November 18, 2014 November 26, 2014 Counsel: Mark Covan, for the Crown Stanley W. MacDonald, Q.C., for Mr. Chehil By the Court: [ 1 ] The accused, Mandeep Singh Chehil, has made a motion for an order pursuant to s. 714.1 of the Criminal Code permitting certain defence witnesses to testify by video link from Vancouver, British Columbia. Those witnesses are Afroze Aiyub, Kalvin Saran, Jarnail Saran and Bob Brar.

Section 714.1 of the Criminal Code states : Video links, etc. – witness in Canada – 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. [ 2 ] This

section has been subject to considerable judicial

interpretation although always in the context of an application by the Crown. In addition to the specific circumstances listed in the

section judges have considered a broad range of factors in deciding whether to order testimony by video link (see for example R. v. Ragan 2008 ABQB 658 ). [ 3 ] In cases where the witness’ evidence does not raise issues of credibility and the cost of attendance is significant it is not unusual to have an order for them to testify by video link. An example of this is R. v. Denham 2010 ABPC 82 .

Where the witnesses’ evidence is crucial to the case it is more likely that an order under s. 714.1 will not be granted although that is not always the case. [ 4 ] When the trier of fact will be a jury, as is the case here, special considerations arise. For example, in R. v. Ragan , supra, the Court noted as follows: 57 I do not share the enthusiasm expressed by some other courts about allowing virtual presence testimony in cases where the nature of the evidence is contentious and credibility assessment is an important feature of the case.

In those circumstances, courts should be reluctant to deprive the trier of fact of seeing the witness physically present in the courtroom. Compelling evidence would have to be presented to satisfy me otherwise. 58 The Crown in the present case has not produced compelling evidence for testimonial accommodation. Mr. Bissett is a critical witness. His evidence is controversial and credibility will be highly contested. Compounding the credibility assessment is that a jury, inexperienced in the fine points of making such assessments, will be undertaking the task.

It is also a factor that, even with the best of cautions against prohibited reasoning, the jury might infer from Mr. Bissett testifying by video link that the accused was connected with his shooting. [ 5 ] Although demeanor is not viewed as a primary consideration in assessing credibility it is one aspect of the analysis that must be carried out by the trier of fact. I would echo the comments of the Ontario Superior Court of Justice in R. v. Petit 2013 ONSC 2901 at para. 7 : 7 But the accused, the Crown and the witness are not the only participants in the trial process.

The ability of the court to fulfil its truth-finding function is also important. Unlike the situation at the preliminary inquiry, credibility will be a major issue at the trial. While demeanour, by itself, is an unreliable way to determine credibility, it is nonetheless one facet of the way in which the court in a case like this must do so. In my view, when it comes to demeanour, there is no substitute for being near the witness as she testifies.

It is no accident that witness boxes are placed next to or near the judge and jury in almost every courtroom across the country. [ 6 ] The position of the Crown on this motion is that where credibility is a factor effective cross-examination requires the presence of the witness. Mr. Covan argued that the inability to see gestures and movements by the witness, and delays between the transmission

of questions and answers makes effective cross-examination difficult. In some respects these are issues related to the quality of the technology. In many cases involving motions under s. 714.1 the court has an opportunity to see the proposed video link in operation or makes an order conditional on a satisfactory test run. For example see the decisions in R. v. Gibson 2003 BCSC 524 ; R. v. Jeanes 2014 BCSC 994 and R. v. Osmond [2010] N. J. 54. [ 7 ] In this case Mr. MacDonald, on behalf of Mr. Chehil, proposes that the witnesses testify from the Provincial courthouse in Vancouver.

They would be in a room that could be locked but there would be no court official present except to administer an oath at the beginning of the testimony. The facility would be available from 9:00 a.m. to 4:00 p.m. PST. I do not have any information concerning the quality of the video link, however, I am prepared to assume that it will be of sufficient quality to address the concerns raised by Mr. Covan. [ 8 ] According to Mr. MacDonald all four of the proposed witnesses are relevant to the defence of duress which is being raised by Mr. Chehil.

They will speak about an incident which took place at a bar and a second event which took place at the home of Mr. Bob Brar. Jarnail Saran will be the longest of the four witnesses and provide additional evidence relating to the background events leading to the alleged duress. Kalvin Saran is the person on whom violence was committed by the individual alleged to be the source of Mr. Chehil’s duress. [ 9 ] Mr. Brar and Mr. Kalvin Saran are employed and have limited ability to take vacation time to come to Nova Scotia to testify. Neither has available vacation time they can use. In addition, Mr.

Saran is employed in a position where it would be difficult to explain to his employer the reason for his absence for several days. Mr. Afroze Aiyub is a construction worker who is employed intermittently. He has a young child that he looks after while his partner is working which would limit his ability to come to Nova Scotia. [ 10 ] Mr. Jarnail Saran is in his sixties and is a real estate developer and agent. Mr.

MacDonald indicates that he has more flexibility than the others, although he does have an office to run. [ 11 ] Unlike situations where the motion for an order under s. 714.1 is made by the Crown we have limited information concerning the potential evidence of these defence witnesses. Mr. MacDonald asserts the defence has no obligation to disclose the nature of witness testimony to the Crown. In this case Mr.

Chehil gave a statement to the RCMP in which he provided information concerning his allegations of duress which would have included some information about the events that the four witnesses will testify to. [ 12 ] I agree with Mr. MacDonald that the defence has no free standing obligation to disclose anything to the Crown concerning what evidence it may call at trial. In my view it is different when an application is made under s. 714.1 . The applicant (whether Crown or defence) has the burden to provide the court with sufficient evidence to justify the order being requested.

The legislation requires the court to consider the nature of the witnesses’ anticipated evidence. In this case I am satisfied that Mr. MacDonald’s representations concerning the events to which these witnesses will testify are sufficient for me to decide the motion. [ 13 ] In his submissions Mr. MacDonald refers to the cost of having witnesses travel from British Columbia to testify. In addition to airfare they will likely need two or three nights hotel accommodation together with meals. I accept it can easily come to several thousand dollars per witness.

I have no evidence the costs of witness travel would be an impediment to having them testify in person but I do accept, as a principle, that reducing overall costs is a legitimate objective. [ 14 ] I believe the following factors are relevant considerations on this application and list these in point form: • The cost of witness travel from British Columbia; • Inconvenience to witnesses including disruption of their employment and family life; • The existence of a jury as the trier of fact; • The fact that all four of the witnesses will testify about the same incidents and these will also be addressed by Mr.

Chehil should he testify in support of the duress defence; • The video link would be with the courthouse in Vancouver with appropriate quality of video transmission; • The five day jury trial will involve 14 to 16 witnesses including two experts; and • The video link will only be available during the afternoon sitting of the court in Halifax. [ 15 ] With a jury I believe it is important that witnesses testify in person if at all possible, particularly where credibility is in issue. This is less of a concern with a high quality, instantaneous video link.

In this case we will not know if that is the nature of the connection to the Vancouver Court until a test run takes place. There is also a concern about the security of the physical space and ensuring that witnesses do not refer to documents or information without the permission of the court. This would be addressed by having a court official or peace officer physically present during the testimony, but that is not what is being proposed. [ 16 ] It is important to ensure the efficient running of the trial with little, if any, down time between witnesses.

The more people who testify by way of a time limited video link the greater the likelihood that scheduling problems will arise. As an example, if the testimony of a particular witness is not finished at the end of the sitting day we would not be able to resume their examination until the following afternoon. This could mean the court loses the following morning for purposes of evidence. I believe it is appropriate to try and reduce some of the defence costs for transporting to Nova Scotia, but at the same time I think we should minimize the number of witnesses who testify by video link.

The more important the witness, the greater the rationale for having them testify in person. [ 17 ] Mr. Kalvin Saran and Mr. Afroze Aiyub will both testify about events to be covered by other witnesses. Their personal

circumstances are such that travel to Nova Scotia would be significantly inconvenient. Mr. Saran has the additional difficulty of trying to explain his absence to his employer. I am satisfied that both of these individuals can testify by video link. Mr. Brar will have difficulties taking paid vacation time, however, I believe he should testify in person and will refuse the defence request with respect to his testimony. [ 18 ] Mr. Jarnail Saran does not seem to have any particular personal or employment limitations on his ability to travel.

Obviously coming to Nova Scotia to testify is inconvenient but no more so than for any other person. His proposed testimony is about background events which are presumably important to the duress defence. I believe he should testify in person and would dismiss the defence’s motion with respect to his testimony. Conclusion [ 19 ] For the reasons noted above I will allow Mr. Chehil’s motion to have Kalvin Saran and Afroze Aiyub testify by video link from the Provincial courthouse in Vancouver, British Columbia. In accordance with s. 714.7 of the Criminal Code the costs of this video testimony will be borne by Mr.

Chehil. The order is conditional on a satisfactory test run of the video link in advance of the witness testimony. This test will assess the technical quality as well as the ability of the court to ensure the witness is not using extraneous materials to assist his testimony. [ 20 ] Mr. Chehil’s motion with respect to Bob Brar and Jarnail Saran is dismissed. Wood, J.