R. v. Coyne, 2021 NSSC 242

SUPREME COURT OF Nova Scotia Citation: R. v. Coyne , 2021 NSSC 242 Date: 20210816 Docket: CRH 497114 & 497111 Registry: Halifax Between: Her Majesty the Queen v. John Arnold Coyne Testimonial Aid Decision Restriction on Publication: s. 486.4(1) of the Criminal Code By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. Judge: The Honourable Justice Christa M.

Brothers Heard: June 17 and July 2, 2021, in Halifax, Nova Scotia Written Decision: Counsel: August 16, 2021 Sarah M. Kirby, for the Crown Ray Kuszelewski, for Mr. Coyne 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). By the Court (Orally): Overview [ 1 ] The Crown brought a pre-trial application seeking an order allowing the complainant, NL, to testify via closed-circuit television (“CCTV”), with the presence of a support person, pursuant to ss. 486.1 and 486.2 of the Criminal Code . The application was heard over two, non-consecutive days. On August 3, 2021, I provided a bottom-line decision to counsel to assist as they prepare for trial which will commence on September 10, 2021.

I indicated written reasons would follow. These are they. [ 2 ] The complainant has requested that she be permitted to testify from outside the courtroom by CCTV and to be accompanied by a support person, that being Mary Spears, her Victims Services Officer. I am advised by defence counsel that there is no objection to the request for a support person during testimony. Given this and given the testimony of the complainant, I grant that aspect of the application.

The remaining contested issue is regarding the CCTV request. [ 3 ] The application was to be advanced on June 17, but the Crown could not secure an affidavit from Patricia McKay, a Nurse from Mobile Outreach Street Health (MOSH), a program of the North End Community Health Centre (NECHC), and consequently the application had to proceed over two days. The Crown abandoned their reliance on s. 486.2(1), due to the lack of expert evidence concerning a disability and advanced the application pursuant to s. 486.2(2).

Background [ 4 ] John Arnold Coyne faces multiple charges currently contained in two separate indictments, identified by CRH Nos 497111 and 497114. The parties have agreed to joinder of these charges, but in any event I was appointed by Associate Chief Justice Duncan as case management judge for these applications pursuant to s. 551.1 of the Criminal Code . [ 5 ] The charges relate to the time period from June 1 to July 25, 2019, when it is alleged that Mr.

Coyne committed offences of breach of release orders, robbery, threats, and violence, including sexual violence with and without weapons, and physical violence with a knife. NL is a complainant in both indictments. CRH No 497111 [ 6 ] The indictment identified as CRH No 497111 arises out of allegations that between June 1 and July 25 2019, Mr. Coyne sexually assaulted (anal, full penetrative) the complainant on four different occasions, including two sexual assaults without a weapon, one sexual assault consisting of full penetration with a wrench, and one sexual assault at knife-point.

The allegations also include threats with a knife and confinement. An additional assault is alleged as well. [ 7 ] The charges associated with this indictment are: two counts of sexual assault with a weapon, to wit, a knife and a wrench (section 272(1)(a)), two counts of sexual assault (section 271), unlawful confinement (section 279(2)), uttering threats (section 264.1(1) (a)), assault with a weapon, to wit, a knife (section 267(a)), possession of a weapon for a dangerous purpose (section 88(1)), assault (section 266), and six counts of failing to comply with release conditions (section 145(3)).

CRH No 497114 [ 8 ] On July 2, 2019, Mr. Coyne is alleged to have threatened the complainant as well as another individual. It is alleged that Mr. Coyne entered a home without consent, and threatened the complainant. The allegation is that Mr.

Coyne assaulted the complainant with various objects, including a knife. [ 9 ] The charges associated with this indictment are two counts of uttering threats (section 264.1(1)(a)), three counts of assault with a weapon (section 267(a)), break and enter of a dwelling house (section 348(1)(b)), possession of a weapon for a dangerous purpose (section 88(1)), mischief (section 430(4)), two counts of robbery (section 344), and three counts of failing to comply with release conditions (section 145(3)). Evidence [ 10 ] There has been no expert evidence adduced in relation to this application for testimony via CCTV.

What follows is the evidence of the complainant concerning her challenges due to mental health issues and the impact she says these will have on her ability to testify. In addition, I will review the affidavit evidence of a registered nurse who worked with the complainant for a period of time. [ 11 ] The complainant is a transgender woman, currently 28 years of age, who is housing insecure. She testified she suffers from

PTSD, depression, psychosis and bipolar disorder. She testified to having learning disabilities. While she completed Grade 10 through a special education program, she achieved Grade 3 level in Math and English. [ 12 ] The complainant testified that she finds stressful situations difficult and becomes easily distracted. She said that testifying in court would be a stressful situation. She testified that her reaction to stress is hard to explain but she stutters, twitches, and shakes. If the situation is too difficult, she says she blacks out and has seizures.

She says stressful situations impact her ability to speak and think. She shakes and is not able to think clearly or process her thoughts. She testified she has trouble understanding questions. [ 13 ] She testified she does not like the idea of being in the same room as the accused. She is fearful of the accused and has a fear of him retaliating against her – even in court. It makes her scared and uncomfortable to think about having to be in the same courtroom as the accused. She said she is terrified and scared about the upcoming trial and is having difficulty sleeping at night because of it.

She testified that due to her fear, she is concerned she would not be able to testify. She testified that if she is in a different room when she is testifying her concentration and thoughts would be clearer, she would not be as nervous, and she would not stutter. [ 14 ] The complainant testified that she takes several medications such as Trazodone, Olanzapine, and “Dextrin”.

She was taking these drugs regularly but has run out of medication over the last month because her treatment provider was not at work. [ 15 ] The complainant agreed on cross-examination that she has abused substances including opiates, and crystal meth. She testified that the only non-prescription substance she takes now is marijuana. [ 16 ] On cross-examination, the complainant testified that she could testify in court for the purposes of this application because the accused was not in the courtroom but appeared via video.

She found this less stressful. [ 17 ] In addition to the complainant’s viva voce evidence, the Crown submitted an affidavit from Patricia McKay (“McKay”). The affidavit was sworn on June 29, 2021 and filed on June 30. The defence declined to cross-examine Ms. McKay. [ 18 ] McKay was involved in the complainant’s care since 2019. As a nurse who works with MOSH, she deposed that MOSH provides health care to people who are homeless, marginally housed and street-involved.

While McKay gave some evidence confirming some of the complainant’s stated mental health issues, she deposed that she has not seen the complainant since December 8, 2020. [ 19 ] McKay provides some relevant information from her own observations. Her affidavit indicates that she observed behaviours from the complainant consistent with mental health disorders reported by the complainant, including PTSD, and panic states. Particularly, she deposed: 12. During my care of [NL], I observed acute flare-up of her PTSD when anticipating the court cases involving John Coyne ( “Mr.

Coyne”) in which she is a complainant (the “Upcoming Court Cases”). In particular, I have observed [NL] in severe panic states, unable to organize her thoughts, completely shut down, agitated, shaking, and unable to talk about what happened to her or say Mr Coyne's name, even when alone in the office with me. 13. In January 2020, [NL] was so debilitated by her Mental Health Disorders in anticipation of the Upcoming Court Cases that she was unable to cope with activities of daily living.

This led to Jacqueline Atkinson, NP and I completing a medical assessment together for referral to the Disability Support Program provided by the Nova Scotia Department of Community Services. 14. The Disability Support Program serves children, youth and adults with intellectual disabilities , long-term mental health illness, and physical disabilities in a range of community-based, residential in vocational/ day programs. 15.

At that time, we assessed the impact of [NL]’s long-term mental illness on her ability to perform activities of daily living and concluded that the impact was moderate and that she required a supported group home setting. … 16. I do not know whether [NL] accessed the disability support program. [ 20 ] I am careful in my reliance on this evidence, as some of the evidence strays into expert territory, but I only have considered that which is in the nature of fact evidence and observations. In addition, I did not rely on the attachments to the McKay affidavit.

Much of that strayed into expert opinion, hearsay, and prior consistent statements. The defence did not raise any concerns with the attached documents, or the statements made by the affiant. There was no motion to strike attachments or any portions of the affidavit. That does not end the inquiry. I must perform a gatekeeping function. There is much in the way of inadmissible evidence in the documents, including hearsay. The only portion of the attached records I had regard to was information about the complainant’s medication. However, that information is dated.

The records do confirm medication prescribed for the complainant but some of those prescriptions were in the past and are no longer current. Defence Position [ 21 ] The defence argues that the complainant was able to testify on this application, without taking her usual medication for a month and had little difficulty. The defence did acknowledge that the complainant was somewhat nervous as demonstrated in her answers and behaviours during direct examination, but argues that by the time cross-examination began, she was comfortable. The defence says this shows she could testify in open court.

The defence proposes that I order a screen as a less invasive method to facilitate evidence at trial. The defence asks me to order this on my own, utilizing my discretion and speaks of a “ladder” approach to these testimonial accommodations. [ 22 ] The defence provided no support in the case law for such an approach. There are a few cases which speak to this including R. v. N.H.P., 2011 MBQB 31 , a decision based on the pre-amendment language of the Criminal Code . In addition, there is R v. M ., 2018 NWTSC 76 , and R. v. N.S.D., 2017 SKPC 71 .

There are differing lines of authority, but most of the cases put before the Court demonstrate that the judge is only to decide the motion actually before them. For that I rely on R. v. V. (W), 2016 ONSC 874 , R. v. Netro , 2018 YKSC 11 , and R. v. George, 2020 BCSC 212 .

[ 23 ] The defence argued that having a witness testify via CCTV makes it difficult to see the whole person and that since body language is an important part of testimony this is prejudicial to fair trial rights. The defence stated that they do not deny the witness’s concerns but argues that accommodation could be accomplished by a screen. [ 24 ] The defence argues that the complainant’s evidence is not convincing, submitting that the evidence of the complainant that she is concerned about seeing the accused and being in the same room as him is not enough to satisfy the test, and is self-serving.

The defence argues that the complainant presented well and did not appear any more nervous than any other witness before the Court. While the accused appeared via video for this pre-trial application, the complainant was able to testify in court, in the presence of a support person, the Court, court clerk and counsel. She was cross-examined. Crown Position [ 25 ] The Crown argues that the complainant is a particularly vulnerable witness with mental health conditions, insecure housing, and has a stated fear of the accused.

The fear is not relied on alone but in combination with the complainant’s account of how that fear affects her thinking, concentration, and ability to communicate. The Crown also relies on the evidence of the complainant that because of her fear and concern, she will have issues stuttering and conveying her testimony.

Law and Analysis Support Person [ 26 ] The Crown relies upon the following sections in relation to their application for an Order for a support person: 486.1(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. … 486.1(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) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (

g) any other factor that the judge or justice considers relevant. [ 27 ] As noted earlier, the defence does not oppose an order for a support person, and I grant this aspect of the application. The complainant is 28 years of age. She would have been about 26 years of age at the time of the alleged offences. While there was no expert evidence concerning a disability per se , there was evidence from the complainant concerning her mental health struggles and the difficulty she would have testifying. The nature of the alleged offence includes some serious allegations of violence.

Society obviously has an interest in encouraging reporting of such alleged offences. Many cases have acknowledged that objective in cases involving similar allegations. [ 28 ] The Crown proposes Ms. Spears as the support person. She was in attendance with the complainant at this application. She demonstrated she understands her role. She sat quietly with no reaction or engagement. She simply sat close to the complainant, quietly providing support through her close proximity. I have no difficulty allowing a support person and, in particular Ms.

Spears, at trial pursuant to s. 486.1(2) of the Criminal Code in order to facilitate NL’s evidence. Testimony Outside the Courtroom [ 29 ] I move now to the Crown’s request for an Order permitting the complainant to testify at trial via CCTV. The following sections apply: 486.2(2) Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow 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 and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. … 486.2(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. 486.2(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection. [ 30 ] The circumstances in which the application may be made are addressed at s. 486.2(2), and the factors to be considered are set out at s. 486.2(3). [ 31 ] Before Parliament amended this

section in 2015, the test was whether the testimony outside the courtroom was necessary. Since the amendments, the test is whether the CCTV testimony would facilitate a full and candid account by the witness. As is seen through the case law I will discuss below, this amendment has made the order sought in this case more commonplace. [ 32 ] The Court of Appeal considered CCTV evidence under s. 486.2 in R. v. NM , 2019 NSCA 4 , where the appellant challenged the trial judge’s decision to allow the complainant to testify via CCTV.

Unlike the application before me, the Crown in NM did not make a formal motion and did not lead evidence. The Court confirmed that the order did not require a specific evidentiary basis, adopting the reasoning of the Newfoundland Court of Appeal in R. v. Hoyles , 2018 NLCA 46 (paras 60-70 ). Bourgeois, JA said, for the Court: 70 I adopt the above reasons set out in Hoyles . In the present case, the trial judge was aware of the nature of the charges, the familial relationship between the accused and the complainant and her age.

In such circumstances, I do not find the trial judge erred in exercising his discretion under s. 486.2(2). That being said, such motions should not be advanced by the Crown as an after-thought at the commencement of trial. Neither should such requests be granted perfunctorily. Preferred practice would see a written motion, accompanied by an affidavit or affidavits in support, which might be challenged or tested by cross-examination, and followed by submissions from both the Crown and the accused.

I would dismiss this ground of appeal. [ 33 ] Bourgeois, JA, confirmed that there was now a lower standard to meet, after the amendments, as follows: 65 The addition of "or would otherwise be in the interest of the proper administration of justice" adds a second basis upon which a motion could be granted. Further, the change of wording from "is necessary to obtain a full and candid account" to the current "would facilitate the giving of a full and candid account" reflects a newly lowered threshold (see for example R. v. P. (K.) [2017 CarswellNfld 72 (N.L. Prov. Ct.) ], 2017 NLPC 1317 P00067; R. v.

Turnbull , 2017 ONCJ 309 (Ont. C.J.)). [ 34 ] Similar statements supporting a lower threshold were made in R. v. J.S ., 2016 YKTC 59 , and in R. v. Jimaleh, [2016] O.J. No. 5133 (S.C.) . [ 35 ] In R. v. P(K), [2017] N.J. No. 69 (NLPC) , the Court discussed the meaning of the term “facilitate” in the amendments as follows: 24 I view the deletion of the word "necessary" as being significant. It illustrates that the Crown no longer has to establish that there will, without a

section 486.2(2) order, be a "deprivation" of the witness's ability to provide a full and candid account (see L. (M.A.C .), at paragraph 28). Rather, all that the Crown must establish is that a

section 486.2(2) order will "facilitate" the giving of a full and candid account by the witness or would otherwise be in the interest of the proper administration of justice. Either is sufficient.

(1) What Does the Word Facilitate Mean? 25 The word "facilitate" means "to make easier or less difficult; help forward" (see dictionary.com). Synonyms include "ease"; "further"; and "help" (see thesauras.com). The Concise Oxford English Dictionary (10th ed.), defines the word "facilitate" as meaning to "make easy or easier" (see R. v. Lindsay , 2009 ONCA 532 (Ont. C.A.), at paragraph 23 ). 26 In R. v. Ashouri , 2015 BCPC 452 (B.C. Prov. Ct.), at paragraphs 5 and 6 , it was held that the word "facilitate" in the context of

section 486.2(2) of the Criminal Code means "to make an action, result , et cetera , easier, less difficult or more easily achieved." I agree. 27 Thus, the question in a

section 486.2(2) application becomes: will allowing a witness to testify outside of the courtroom make it easier or help that witness to make a full and frank account of the subject matter in relation to which they are testifying (see R. v. Nuttall , 2016 BCSC 1404 (B.C. S.C.), at paragraph 797 ). The present wording of

section 486.2(2) suggests a very low threshold for the issuing of such an order. …

[ 36 ] When I consider the evidence presented to me in this application I must ask whether the testimony via CCTV would make it easier or help the witness to provide a full and frank account of the subject matter to which they are testifying. [ 37 ] In R. v. ML , 2018 NLSC 35 , the Court made an order under s 486.2(2) where the complainant was 21 years old and the alleged offences were committed by a person the Court described as in loco parentis . The court endorsed earlier Newfoundland authority to the effect that “it would be a rare sexual offence case in which a

section 486.2(2) Criminal Code order would be declined in relation to a complainant” (para. 20). [ 38 ] In R. v. JRM , 2020 ONSC 8130 , the application was allowed on the ground of the complainant’s anxiety in a situation where the accused and the complainant were former intimate partners. There was, however, an evidentiary basis, including evidence that the complainant required prescription medication. The Court said, inter alia, at para. 25: e.

I do not disagree with defence counsel's submission that setting the bar for such s.486.2(2) orders too low, so as to make them available almost automatically, and simply "rubber stamped" by the court whenever a witness indicates he or she "prefers" not to testify in open court, would be inappropriate. However, I think the evidence in this case goes much further than an indication of mere preference on the part of the complainant. In particular: i.

In my view, anxiety capable of requiring treatment by prescription medication should be regarded as a mental condition, and anxiety-induced vomiting should be regarded as a physical condition, in this context. ii. Contrary to the submission of defence counsel, in my view a mental and/or physical condition that is debilitating to an extent capable of rendering a witness unable to do something (i.e., to testify in a court room), satisfies the literal definition of a "disability" in this context.

Again, the nature of such a disability may fall short of that contemplated by s.486.2(1) of the Code; i.e., a disabling condition sufficiently severe, on its own, to justify and require the making of an order under s.486.2 of the Code. However, such concerns, particularly when combined with other relevant considerations, may be sufficient to satisfy the "new" lowered threshold for granting such s.486.2(2) orders. iii.

Without limiting the generality of the foregoing, I think the evidence before me makes it clear that testifying outside the court room in this proceeding would make it easier for the complainant to give a full and candid account of underlying events; i.e., in terms of helping to allay her anxiety and avoid related vomiting - both of which would interfere with her ability to provide such testimony. As noted above, something that makes it easier for a witness to provide such testimony "facilitates" such testimony, according to the authorities. [ 39 ] Similarly, in R. v. Hutchison , [2019] O.J. No. 756 (Ont.Ct.

J.) , the complainant and the accused were former partners: 1 The accused, Mr. Hutchison, is charged with a number of serious offences stemming from an alleged incident of domestic violence on February 24, 2018. It is alleged he arrived at the complainant's home in the company of two other unknown males, broke into her residence and threatened her with firearm. It is further alleged the accused violently assaulted the complainant, choked her and tried to drag her to the basement of the home, indicating it was his intention on that day to kill her with the firearm he had in his possession.

It appears the matter was not reported to police until March 2018. [ 40 ] In allowing the application (along with an application for a support person to be with the complainant), the Court said: 18 Ms. Johnson is an adult and there is no evidence she suffers from any mental or physical disability. She does appear however, based on the evidence of the officer and the content of her email, to be experiencing significant anxiety about the court process and prospect of testifying in open court. The nature of the alleged offences are very serious.

They include allegations of threats to kill in the context of a violent physical assault where a firearm is present and pointed at the alleged victim. Ms. Johnson is the sole witness to these alleged offences and clearly has material evidence to provide. 19 Ms. Johnson has a lengthy personal history with the accused. She is his former partner and they share three children together. She has indicated in her statement to the police she has knowledge about prior alleged criminal activity on his part and access to firearms.

She has asserted there were prior unreported acts of violence between them and she has fears for her safety and those around her. She also has expressed concerns about possible retaliation if she speaks out against the accused. 20 The complainant explicitly stated in the meeting on November 20th to the officer and others that she felt her ability to testify would be impacted in a negative fashion if she was in the same room or had eye contact with the accused.

I accept the officer's evidence on this point, along with the demeanour evidence of the complainant as described at both meetings in March and November 2018. 21 The societal interest in encouraging the participation of witnesses in trials such as these is a significant factor in favour of the Crown's application. It is important to try to ensure a witness is able to provide a full and candid account of what occurred (or did not occur) on February 24th and Ms. Johnson has indicated her belief that she would not be able to provide such an account if required to testify in open court.

If that is the case, the truth seeking function of the trial would be frustrated . 22 Given the evidence on the application and the test to be applied, I am satisfied that a witness accommodation order under s.486.2(2) would facilitate the giving of a full and candid account by the witness. I am further satisfied that the presence of a support person would not interfere with the proceedings or impede the ability of the defence to conduct their cross-examination. [ 41 ] In R. v.

Rich , 2020 NLSC 39 , [2020] NJ No 52, the application was allowed, with the foundation being described as follows: [6] The Crown grounds its Applications on submissions put forward at Appendix "A" to its Applications which, inter alia , includes at paragraphs 2-5 of its Application: 2. The offences were committed against Darren Penunsi. Mr. Penunsi and Mr. Rich grew up together in the same small town of Natuashish, Labrador.

3. In a statement to police dated August 16, 2018 Darren Penunsi stated that in the past Nigel would pick on him or bully him. 4. Darren Penunsi has advised the crown and police that he is afraid of Nigel Rich. He has panic attacks and thinks it would be easier for him to testify and give a full account of what happened if he was not in the same room with the accused and did not have to see him. 5. Mr. Penunsi also thinks it would be easier to testify if he had someone beside him in the room for support and is agreeable to having Mary Saunders from Victim Services be his support person. Ms.

Sanders knows nothing about the file, nor does she speak Innu, and is independent to the proceedings. [ 42 ] In this decision, Chief Justice Whalen concluded that the witness would be unable to give a full, candid account if forced to testify in the same room as the accused.

In granting the Crown’s application for the complainant to testify from outside the courtroom and with a support person, the Chief Justice considered the complainant’s stated fear of the accused and how this would affect his ability to testify, along with the nature of the charged offences, the degree of violence, and the results of the attack: [11]

Section 486.2(3), while not exhaustive, outlines the factors the Court shall consider in a

section 486.2(2) application. In the present Application: (

i) The nature of the offence and the degree of violence exhibited are “matters of record or patently obvious from observation” (Hoyles at paragraph 11 ). The Accused stands charged with: • attempted murder • aggravated assault • assault with a weapon • uttering threats The medical records and photographs of Mr. Penunsi on the night of the alleged assault display the results of a brutal attack. (ii) The alleged offences occurred in Natuashish, Labrador, a small isolated northern community. The Accused and Mr. Penunsi grew up together in this small community. Mr.

Penunsi indicated that in the past the Accused picked on him and bullied him and that he is afraid of the Accused. Mr. Penunsi suffers from panic attacks. It is clear from the record that the Crown has had difficulty getting Mr. Penunsi to attend Court and testify, and submits that it is because Mr. Penunsi fears the Accused, and for his safety. (iii) It is not unreasonable for a victim of a brutal attack as alleged and depicted in the evidence to be intimidated in the presence of the Accused who they say committed the attack.

Nor would it be unreasonable for a victim in a small isolated community to fear retaliation. (iv) It is in society’s interest to encourage witnesses who fear reprisal to none-the-less participate in the criminal justice process. Consideration of the Factors [ 43 ] In this case, the complainant is an adult. At 28, she is not a young person. Her age is not a factor in my consideration of the application. [ 44 ] The complainant has some mental health struggles. She testified to several issues, including depression, PTSD panic attacks and bipolar disorder.

The complainant said these issues manifested in her having difficulty organizing her thoughts when facing court appearances. She described a fear of the accused which she said manifested itself in not being able to properly communicate about the alleged events at issue. Many of these issues were further confirmed by the evidence of McKay; although she could not give an expert opinion, her observation and her treatment of the complainant support such an order being consistent with the complainant’s own evidence.

In particular, she provided the Court with uncontested evidence that the case caused an exacerbation in observable mental health symptoms, including panic attacks, issues with thought organization, shaking, and stuttering. [ 45 ] The evidence is that the complainant is experiencing anxiety about the upcoming trial. That is not contested by the defence. She has been prescribed medications. And while it is true she is not currently taking most of these medications, she did indicate this was because of the need to obtain a further prescription.

Being someone who is housing insecure was part of the reason given for the inconsistent use of her prescribed medications. [ 46 ] The complainant consistently said in her testimony that her anxiety or fear of the accused would affect her ability to testify in court. [ 47 ] The two indictments as they currently stand both involve NL as a complainant. The alleged offences include threats, assaults with a weapon, sexual assault, sexual assault with a weapon, confinement, and common assault.

These are serious allegations which include violence. [ 48 ] It is important to address the uncharged allegations the Crown referred to in relation to some alleged incidents in Moncton. These allegations are not charges before the Court and I have not considered those submissions by the Crown in my analysis. They are irrelevant and improper to consider. [ 49 ] The complainant alleges that she had a long term relationship with the accused and resided with him for periods of time. This personal relationship is a factor to consider.

However, this is not a situation of a family member being accused of a violent sexual offence.

[50] When considering whether this order is in the interests of the proper administration of justice, I must consider the ability of theaccused to make full answer and defence. I must look at this in the context of the limited impact such an order has upon the right ofconfrontation as well as the consideration of encouraging the reporting and testimony in such matters. The use of CCTV should havelimited impact. The video and sound should be clear, and the accused can see and hear the witness and consult counsel. The commentsin R. v. Hutchison, supra are apt: 21.

The societal interest in encouraging the participation of witnesses in trials such as these is a significant factor in favour of theCrown's application. It is important to try to ensure a witness is able to provide a full and candid account of what occurred (or did notoccur) on February 24th and Ms. Johnson has indicated her belief that she would not be able to provide such an account if required totestify in open court.

If that is the case, the truth seeking function of the trial would be frustrated Conclusion [51] I am satisfied that the Crown has proven on a balance of probabilities that an Order pursuant to ss. 486.2(2) of the CriminalCode is appropriate given all of the factors I have considered. Based on R. v. Graat, (SCC), [1982] 2 S.C.R. 819, theMcKay affidavit does provide admissible evidence about the emotional state of the complainant, based on observation of thecomplainant. [52] I have concluded that these applications should be allowed.

The evidence presented has persuaded me that allowing NL totestify from outside the courtroom and in the presence of a support person will facilitate her ability to give a full and frank account of theacts alleged and is in the interest of the administration of justice [53] The Crown has not addressed the use of exhibits in the CCTV scenario or set forth a process for this. The Crown needs toaddress this. The Court retains the discretion to end the CCTV testimony and move the witness back into the courtroom if in the courseof the testimony it becomes apparent that the administration of justice so requires.

Brothers, J.