R v. G.B., 2017 NSSC 372

SUPREME COURT OF Nova Scotia Citation: R v. G.B. , 2017 NSSC 372 Date: 20170504 Docket: Syd No. 451841 Registry: Sydney Between: Her Majesty the Queen v. . G.B. Restriction on Publication:

Section 486.4 Judge: The Honourable Justice Murray Heard: April 3, 2017, in Sydney, Nova Scotia Oral Decision: May 4, 2017 Counsel: Christa MacKinnon, for her Majesty the Queen Blair Kasouf, for Mr. B.

Section 486.4 - Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order.

Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. By the Court (Orally): [ 1 ] On this Application the Crown is seeking to have a key witness testify by video outside the courtroom. The Crown proposes to have the Complainant testify from […], Manitoba. [ 2 ] The trial of this matter is scheduled to take place in Sydney in August, 2017. The Accused, G.B., is charged with several sex related offences including sexual assault. Initially, Mr.

B. elected trial with a judge and jury but then re-elected trial by judge alone. [ 3 ] The relevant sections of the Criminal Code are sections 486.2(1) ; 486.2(2) and s. 714.1 . Under these sections Parliament has saw fit to permit witnesses to testify outside the courtroom or other accommodation in certain circumstances. [ 4 ]

Section 486.2(1) is intended to accommodate a witness who may have difficulty communicating by reason of age (under 18 years) or disability. It is presumptive in that if the application is made it shall be granted, unless the judge believes it would interfere with the proper administration of justice. [ 5 ] The focus of s. 486.2(2) is on the witness being able to give a full and candid account of the acts as alleged. The

section requires the judge to be satisfied the order is necessary to obtain this account. Under s. 486.2(3) the Court shall take into account a number of factors as set out in s. 486.2(3). These include age, disability, the nature of the offence, the nature of the relationship and any other circumstance the judge considers relevant. [ 6 ] The most recent amendment to this

section in 2015 has added two additional factors (

e) whether the witnesses needs the order by their security or protection and (

f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. [ 7 ] The main thrust of the Crown’s application in this case is pursuant to s. 714.1 of the Criminal Code which permits a witness to testify by means of technology elsewhere in Canada, if in the Court’s opinion it would be appropriate in all the circumstances including three enumerated factors:

a) the location and personal circumstances of the witness;

b) the costs that would be incurred; and

c) the nature of the witness’s anticipated evidence. I will address these in more detail later. [ 8 ] An affidavit has been filed in support of application by the Complainant’s social worker […] of […], Manitoba. The affiant states she has been […]’s social worker for 1½ years and has seen or spoke to her 1-2 times a week.

She states that the witness […] who is 18 years of age, was diagnosed in 2014 with major depressive disorder. […] is aboriginal and has been in the care of Province of Manitoba since 2010, and currently remains in care, even though she has turned 18. [ 9 ] The Crown acknowledges the Complainant’s evidence will go to the heart of the matter and is crucial evidence. For these same reasons the Crown says it is important for the witness to give a candid account, submitting there no magic to appearing in courtroom. The Court, says the Crown, will be able to make every finding it needs to make.

It would be no different than allowing a Complainant in Sydney to testify by video from another room in the courthouse. [ 10 ] The Defence objects for a number of reasons. Chief among them is that the Complainant is a key witness. Her evidence will be essential to the Crown's case. As such her credibility will be a key issue at trial. The Defence argues therefore she should be present in person to be cross examined and without her physical presence it will be more difficult to assess her demeanour.

In addition, her presence will resolve any technical difficulties that could arise at trial. [ 11 ] The Defence made other valid points in their submission. The evidence of the social worker as to the Complainant’s expected difficulties does not rise to a level of disability. As well […] is not an independent witness.

It is not a criticism but in providing the affidavit she is attempting to assist her client. [ 12 ] It has been stated in the caselaw that the more important the witness the greater the rational for the witness to appear in person at trial to have their credibility fully assessed, including demeanour (R v. Chehil , 2014 NSSC 421 ). [ 13 ] Defence counsel Mr. Kasouf refers to the following statement at paragraph 57 of R v. Ragan , 2008 ABQB 658 , 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. [ 14 ] The sections of the Criminal Code show there is discretion with the trial judge to ensure proper administration of justice in making the decision.

For example, “unless it interferes with proper administration of justice, or if in the judge’s opinion it would be

appropriate..” [ 15 ] In citing

Section 714 the Crown relies on R v. LeBlanc , 2014 NSPC 116 , but the circumstances there were much different. [ 16 ] The rationale of the judge and reasons given in LeBlanc had to do with inconvenience to family, for example the impact on schooling and related matters. Here there may be a more compelling case for requiring the Complainant to appear in person, based on the nature of her evidence. Smart, J in R v.

S.B.T. , 2008 BCSC 711 , has said the starting point is the nature of the evidence. [ 17 ] Ultimately, the trial judge in LeBlanc stated in her reasons for allowing the testimony by video appearance, at paragraphs 54 and 55 as follows: 54. After considering all of the circumstances including prejudice to the defendant to make full answer and defence. I am prepared to grant the Crown’s application pursuant to s. 714.1 and order the witnesses to testify by video link from […], Alberta. 55.

Allowing them to do so will reduce any hardships upon the family and have no impact upon the defendant’s ability to make full answer and defence. [ 18 ] In the present case, given […]’s age, mental health and overall circumstances, this appears to be type of case parliament contemplated in invoking these relevant sections. I have considered that it is the return to the place of the murder of her father that is presenting the biggest concern for the Complainant and contributing to her anxiety and focus as alleged. [ 19 ] The proper legal test for consideration of

section 714.1 was stated in R v. Chappell , 2005 BCSC 383 , where Parrett, J. stated at paragraph 51as follows: [51] In considering whether to dispense with the usual practice, and to take a witness’ evidence by video link, the court must consider all of the circumstances of the particular case and the three enumerated factors. Cost savings, in and of themselves, cannot justify such an order without the other factors being considered. [ 20 ] The Accused's right to fair trial and the right to make full answer and defence must be central to this type of decision.

This Court has an obligation to uphold and ensure this will not be compromised. [ 21 ] The Crown has the burden of satisfying the Court the application should be granted. [ 22 ] I have considered the evidence before me and whether Mr. B.’s right to make full answer will be in jeopardy if I allow the Crown’s request for accommodation of the witness. [ 23 ] The Crown has stated in its oral submission that evidence by way of video does not present the same flow as evidence given in person.

Further, I note that in LeBlanc there were some technical problems that Appellant accused says affected the trial. [ 24 ] On the other hand in Ragan , Fitzgerald J. commented on his positive experiences with evidence by video, observing that the trier of fact was not impeded in any essential or substantive way in assessing credibility (para.51). [ 25 ] This is not a balance of convenience test. [ 26 ] Mr.

B.’s counsel has made valid arguments, but at the end of day the Court is satisfied there is no obvious impediment to the Accused making full answer and defence. [ 27 ] Based on the evidence and submissions I have heard, I do not think this is a decision that should be made for fear that quality of technology will not be “up to par ”. The considerations must be broader and more substantive. [ 28 ] The witness is 18 and just past the age when it would be mandatory to allow the application under

section 486.2 (1). There is also her diagnosis to be considered even if it does not rise to the level of a disability. [ 29 ] I have therefore decided to allow the Crown’s application. I am satisfied having regard to all of the circumstances, including the factors in

section 714.1 that it is appropriate to do so. I do not consider costs of travel to have been a factor. [ 30 ] This decision however shall be subject to a proper test run being completed at least 20 days prior to trial. Also, in the event there are technical problems at trial, the Court can, if necessary, reassess or revisit the issue to ensure a fair trial. [ 31 ] In paragraph 20 of R v. Brown , 2010 SKQB 420 , Gunn, J. stated: 20.

If during the testimony, the judge determines that whatever form of testimonial aid which has been chosen is cumbersome or that a fulsome examination of the witness is impaired the judge may and indeed will re-evaluate the order under the circumstances as they then arise to ensure a fair trial consistent with the proper administration of justice. [ 32 ] Finally, there is ongoing concern in the administration of justice about the participation of victims, including alleged victims and witnesses. [ 33 ] In my respectful view, allowing this application the Court is one way the court can accommodate a witness without prejudicing the Accused's right to a fair trial.

This is one of the factors noted in the recent amendment to

section 486.1(3). [ 34 ] Order accordingly.

Murray, J.