R v Hainnu, 2011 NUCJ 14

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Hainnu, 2011 NUCJ 14 Date: 20110712 Docket: 04-10-46 (Hainnu); 04-10-10 (Illauq); 04-10-41, 04-10-42 (Kuniliusee); 04-10-40 (Paniloo) Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Benjamin Hainnu; Nicodemus Illauq; Billy Kuniliusee; and Seetee Paniloo ________________________________________________________________________ Before: The Honourable Mr. Justice R.G. Kilpatrick Counsel (Crown): D. Garson Counsel (Accused Hainnu): G. McGee, agent for R. Davidson Counsel (Accused Illauq): C.

Lyons Counsel (Accused Kuniliusee): C. Lyons Counsel (Accused Paniloo): C. Lyons Location Heard: Iqaluit, Nunavut Date Heard: June 24, 2011 Matters: Criminal Code, s. 714.1 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Restriction on publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way. I. THE APPLICATION [ 1 ] The Crown brings an application to have the two complainants, AB and CD, in sex-related criminal allegations provide their testimony by videoconference link with the courtroom. Videoconferencing is not available to the Court in Community X where these allegations originate. [ 2 ] The Crown also requests a change of venue from Community X to Iqaluit.

This request is necessary to facilitate the witnesses’ testimony by videoconferencing. [ 3 ] The Crown applications for videoconferencing are opposed by counsel on behalf of the four named Defendants. Counsel for Mr. Hainnu is not opposed to the Crown request for a change of venue to Iqaluit. II. PROCEDURAL HISTORY [ 4 ] These four Defendants are among six individuals from Community X charged with a multitude of sexual offences against two young female complainants. The complainants are now 15 years of age. The allegations span a number of years.

The alleged incidents are said to have occurred in Community X where the four Defendants and the complainants all ordinarily live. [ 5 ] The Crown has proceeded by indictment against the Defendants Hainnu, Kuniliusee, and Paniloo. All three have elected trial by judge and jury with a preliminary inquiry. They now await their preliminary inquiries. The Crown has proceeded summarily against the Defendant Illauq. He is now awaiting his trial. III. THE FACTUAL BASIS FOR THE CROWN APPLICATIONS [ 6 ] The two complainants are presently in the care of the Ranch Ehrlo Society [the Society].

At some point in early 2010, the two complainants were transferred from Nunavut to a specialized care facility in Saskatchewan to facilitate their assessment, stabilization, and treatment. In May, 2010, AB and CD made disclosures to the Society’s clinical psychologist that resulted in a referral to the police. A police investigation followed. The four Defendants from Community X were charged as a consequence of this investigation. [ 7 ] The complainants have multiple needs.

The psychologist deposes as follows: During my assessment of both [AB and CD], it was apparent that they have experienced a multitude of traumatic experiences, including the tragic death of their mother in February of 2010. They have experienced a great deal of difficulty coping with this loss. Their grief reaction can be conceptualized as a traumatic grief, since their trauma symptoms interfere with their ability to go through the typical process of bereavement. During my assessment both [AB and CD] were being closely monitored for depression and suicidal ideation.

Based on this assessment, I do verily believe that requiring both girls, especially [AB], to testify in their home community in the same room as the accused will have a significant detrimental impact on their emotional and mental states. I have been advised and do verily believe that a support system has been developed for [AB and CD] at Lee House within Ranch Ehrlo to assist them in dealing with the stresses of the upcoming trials and preliminary hearings.

As a professional psychologist, I do verily believe that maintaining [AB and CD]’s normal routines is critical as it will assist them in feeling more safe and secure. As a result, a divergence from their daily predictable patterns such as a trip to Nunavut to testify in court proceedings would not be advisable at this time.

[ 8 ] The Crown proposes to have the two complainants testify from the Ranch Ehrlo treatment facility to ensure minimum disruption to their routines and to maximize the benefits of the support network available to the youth at this facility. IV. THE DEFENCE POSITION [ 9 ] The Defence resistance to the Crown’s applications is premised upon the following propositions of fact and law:

a) The Defendants have a common law “right” to face their accusers or to “confront” them in the public setting of a courtroom.

b) No effective cross-examination of the complainants can occur if the complainants are permitted to appear by videoconferencing.

c) The Court would be deprived of any real opportunity to assess the complainants’ credibility if they are permitted to testify by videoconferencing.

d) The Crown material filed in support of the application, namely the affidavit of the psychologist K. Kitz sworn April 6, 2011, fails to provide sufficient grounds for the application. [ 10 ] The Court will assess each of these propositions in the order in which they are listed. V. COMMON LAW ORIGINS OF THE “RIGHT” OF CONFRONTATION [ 11 ] No understanding of a common law principle, rule, or right can be complete without an understanding of its historical context. If a right of “confrontation” exists at common law, its roots should be discoverable in common law jurisprudence. A.

The right of confrontation in Norman England [ 12 ] In the two centuries immediately following the Norman Conquest of Saxon England, the common law recognized a right of physical confrontation in the form of a “wager of battle” or “trial by combat.” [ 13 ] The “wager of battle” was a feudal innovation imported by William the Conqueror following his victory over Harold at Hastings in 1066. There is no evidence in Saxon law or Saxon institutions to substantiate any earlier link with pre-conquest Saxon England. [ 14 ] This right of physical confrontation disappears from the common law of England by the 15th century.

B. Confrontation and the right of cross-examination [ 15 ] The development of the common law rule regarding the exclusion of hearsay evidence in the 16th and 17th centuries paralleled the common law’s gradual acceptance of a right of cross-examination during the same period. These developments, one a rule of evidence and the other a rule of trial procedure, were inextricably linked to each other. Both occurred as the Crown, under the Tudors and the Stuarts, moved to suppress political dissent through the Courts – principally through the activities of the Court of Star Chamber.

Both the rule against hearsay and the right of cross-examination developed incrementally through this period in an effort to protect the citizen from false accusations. It was during this turbulent period that the confrontation of King and Parliament gave birth to what is now known as the supremacy or rule of law.

[ 16 ] Prior to the 16th century, there was no general right of cross-examination. The rule excluding hearsay evidence was unknown. The early common law courts borrowed heavily from civil and canon law. The use of depositions in trials was commonplace. The practice of calling witnesses with personal knowledge, “to speak from the senses” and inform a jury, was rare. The use of witnesses in court was often attacked as a form of maintenance. It was not uncommon for juries to inform themselves by interviewing people outside of court and out of the sight and hearing of the litigants.

The juries in this early period were expected to have personal knowledge or to inform themselves for the purpose of deciding the matters in dispute through their own knowledge of local issues. The active solicitation of information by the jury was not only permitted, but actively encouraged. [ 17 ] There was much resistance to the growing power of the monarchy under the Tudors and the Stuarts. Powerful opponents of the Crown could not be readily brought to justice in the High Court of Parliament where power and privilege had many friends and allies. Legal proceedings could be protracted. The result was uncertain.

Parliament was not a forum favourable to the interests of either the Tudor or Stuart monarchs. [ 18 ] The monarchy of the period turned to the Court of Star Chamber for assistance. This Court was comprised of the King’s loyal Privy Counsellors. Its strength was supplemented by equally loyal common law justices. The sensitivity of this Court to royal interests was assured. The Court of Star Chamber became the means favoured by the Tudor and Stuart Monarchies to call their political opponents to account. The law and practice of the Star Chamber was ideally suited to level the playing field.

The Court followed long established Chancery practice and relied almost entirely upon depositions. Proceedings were held in secret. There was no ability to “confront” the accuser through any form of cross-examination. There was no requirement of an indictment and juries were unknown. The verdict resulting from these proceedings was all too certain; personal ruin was invariably the result. [ 19 ] Throughout the 1500s and 1600s, ex parte depositions remained an important part of the evidence marshalled against citizens accused of crime. Complaints by Defendants were frequent.

Defendants, particularly in capital cases, argued that they should be brought “face-to-face” with their accuser. They wanted to hear their accuser speak. They demanded an opportunity to challenge their accuser’s evidence. This was particularly true of the royally instigated and politically motivated “show-trials” of this period. It was in this context that the common law cases of the time speak of a demand to “confront” one’s accuser. [ 20 ] There was dawning recognition in the common law courts of this period of the dangers associated with the use of hearsay evidence for a truth purpose.

There was initially reluctance to allow cross-examination to mitigate these dangers. [ 21 ] The excesses of the Court of Star Chamber under the Tudor and Stuart Kings eventually forced a reassessment of the value of hearsay evidence and the benefits of cross-examination. For too long, legal judgment marched in step, and hand in hand, with political imperatives. Individual freedoms were sacrificed upon the altar of political expediency. The old canonical procedure of using depositions without cross-examination provided no real protection for the innocent.

The process of change was too slow for Parliament. [ 22 ] By statute enacted in 1533, statute 5 Edw VI, c 12, s 22, Parliament required the production of witnesses for trial purposes. This was followed by a similar provision in 1564, statute 1 & 2 P & M, c 10, s 11. The destruction of the old canonical practice involving reliance upon deposition evidence and the development of the right of cross-examination was assured by these measures, at least for the common law courts.

Thus was born the greatest engine for the discovery of truth known to the common law. [ 23 ] The statutory measures enacted by Parliament did not initially bind the Court of Chancery, the Court of Admiralty, the Court of Courts-Martial, the Court of Star Chamber, or the High Court of the House of Lords. These courts did not generally use juries and their practice and procedure continued to be heavily influenced by the canon law. The problem with hearsay evidence persisted in these courts long after the statutory intervention of Parliament in the common law courts of the realm.

The lack of cross-examination, the inability to challenge or “confront” the accuser through an open process of questioning before the trier of fact, remained a significant problem well into the late 1600s until statute again intervened. [ 24 ] The Long Parliament abolished the Court of Star Chamber in the Habeas Corpus Act of 1640,

An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber, 16 Cha I, c 10. The legal process employed by the Court of Star Chamber was perceived by Parliament to be flawed in its approach and inequitable in its result. By the early 1700s, the exclusion of hearsay evidence was firmly established in all royal courts in conjunction with a general right of cross-examination. The final triumph of the hearsay rule, the rule of law, and Parliamentary supremacy was complete. [ 25 ] Both concepts, the rule against hearsay and the right of cross-examination, have thus stood for years as legal safeguards of

individual liberties. Both have been viewed as essential components of the rule of law. C. The common law “right” of confrontation [ 26 ] The common law right of confrontation was a right to test the accuracy and reliability of the accuser’s allegations through cross- examination. It was a right, vested in a Defendant, to be present when contrary evidence was presented. The common law rule relating to cross-examination ensured that the Defendant was given an opportunity to “confront,” to test or challenge, a witness before the trier of fact, nothing more.

No other independent right to “confront” an accuser appears in common law jurisprudence after the disappearance of wager of battle, except in conjunction with the development of a right of cross-examination. All references to “confrontation” in common law jurisprudence must be understood in this historical context. [ 27 ] The rule against hearsay ensured that the Defendant, along with the trier of fact, could hear and see the accusation being made.

The common law recognized that observations made of a witness’s demeanour under the “challenge” of cross-examination could give valuable insight into both the reliability and accuracy of a witness’s testimony. The demeanour of the speaker was important for both the cross-examiner and the trier of fact to observe.

This was a central component of the credibility assessment to be undertaken by a trier of fact. [ 28 ] The only way for the common law courts to address both the right to cross-examine and the need to observe demeanour was to ensure that the process occurred in the presence of both the trier of fact and the accused. This spatial relationship, the proximity of the accused to the accuser in a courtroom, was dictated by the limitations of the technology available to the courts during the early development of the right of cross-examination. D.

Contemporary common law jurisprudence [ 29 ] While contemporary jurisprudence continues to recognize the importance of cross-examination to a fair trial, the same cannot be said for claims advanced by Defendants to a right to physically and publicly “confront” adverse witnesses.

The common law has been supplemented by a number of statutory developments in an effort to address the testimonial needs and sensitivities of the vulnerable witness. [ 30 ] In the New Zealand case of R v Accused (T 4/88), [1989] NZLR 560 (CA), [T 4/88], the Appellant challenged the trial court’s use of a screen to shield a young complainant in a sexual offence from seeing the accused. It was suggested that this arrangement prejudiced the Appellant and denied him his right to a fair trial.

It was argued that anything that prevented a witness from looking upon a Defendant as they testified would potentially undermine the effect of cross-examination. It was proposed that having to face an accused as they testified would encourage a witness to tell the truth. [ 31 ] Mr.

Justice Cooke, delivering the judgement of the majority had this to say (at page 664): The real question is whether by the common law or natural justice or fundamental concepts of adversarial criminal procedure – and those three possible sources of rights are not materially distinguishable for present purposes – the accused has a right that the witness testifying orally should be able to see the accused. Since a witness cannot be compelled to look at the accused, and may even be unable to do so if blind or of defective vision, the definition of such a right presents some difficulty.

Counsel for the accused in this case did not, as we understood them, go quite to the length of contending that the accused is entitled to an opportunity of influencing the testimony of a witness by gaze or demeanour. [ 32 ] The Court noted that many witnesses choose not to look at the accused as they testify and there is no practical way to force them to do so. The Court was unable to find that the Defendant (Appellant) had any right in law to require a young child witness to look upon him as she testified. The appeal was dismissed. [ 33 ] In a concurring judgement in T 4/88, Mr.

Justice McMullin at page 672 says this: Confrontation in the sense of being in the presence of one’s accusers is one thing; but confrontation merely to afford the opportunity to

glower at and thereby intimidate witnesses is another. The sight of an accused person from whose actions a child has lived in terror in thepast is very likely to intimidate that child in the giving of evidence about that accused, particularly when the evidence involves him inincidents of the most intimate and degrading kind. [34] In the case of R v R(ME) (1989), (NS CA), 90 NSR (2d) 439, 49 CCC (3d) 475, (NSSCAD), the Appellantchallenged the use of videoconferencing by a young complainant to testify in a sexual assault trial. It was argued that in denying theAppellant the opportunity to face his accuser, the Appellant had been denied his right to a fair trial guaranteed by

section seven of theCharter. [35] The Court dismissed this argument. It held that the use of videoconferencing by this complainant did not violate the accused’scommon law “right” to face his accuser. MacDonald J.A., speaking for the Court, at page 484 says: The right to face one’s accusers is not in this day and age to be taken in the literal sense.

In my opinion, it is simply the right of anaccused person to be present in court, to hear the case against him and to make full answer and defence to it. [36] In the case of R v Levogiannis (1990), (ON CA), 1 OR (3d) 351, 62 CCC (3d) 59, (Ont CA) [Levogiannis],aff’d (SCC), [1993] 4 SCR 475, 85 CCC (3d) 327, the Ontario Court of Appeal considered the constitutional validity ofa

section of the Criminal Code, section 486(2.1), the predecessor to the current

section 486.2, that allowed a young witness to testify on asexual assault allegation behind a screen. The Court found that this provision did not offend an accused’s right to fundamental justice nordid it deny the right to a fair trial. The use of a screen did not prevent the accused or the trier of fact from seeing the complainant testify.The screen did not interfere with the accused’s right to cross-examination or the trier of fact’s ability to assess demeanour and credibility. [37] The Court found that, if a right of face-to-face confrontation with a witness exists at all, such a right is not absolute.

The Courtdetermined that any such “right” is one subject to qualification in the interests of justice. [38] The Court in Levogiannis determined that a face-to-face confrontation might affect younger witnesses differently than adultwitnesses. The Court, at paragraph 71, quotes with approval from the judgment of McMullin J. in T 4/88 (supra): For children, fear of the Defendant’s presence in the courtroom is frequently mentioned as one of the most traumatic aspects of thecriminal justice system.

Historically, looking the Defendant in the eye as one accuses him or her of a crime was held to be an acid test ofthe truth.

But when the accuser is a child, this confrontation may offer a convenient means of intimidating the witness, resulting inserious, damaging effects on the child’s testimony. [39] In dismissing an appeal of Levogiannis to the Supreme Court of Canada, (SCC), [1993] 4 SCR 475, 85 CCC (3d)327, L’Heureux-Dube J. at paragraph 13 says this: The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given ina way that is most favourable to eliciting the truth.

In ascertaining the constitutionality of section 486(2.1) of the Criminal Code, onecannot ignore the fact that, in many instances, the court process is failing children, especially those who have been victims of abuse, whoare then subjected to further trauma as participants in the judicial process. [40] In 2006, Parliament replaced

section 486 of the Criminal Code and provided, in

section 486.2, that upon Crown application a childwitness under 18 years of age shall presumptively testify with the assistance of a testimonial aid (screen or videoconferencing). Thisprovision dispensed with the previous legislative requirement (section 486(2.1)) for a pre-testimonial inquiry to determine whether atestimonial aid was necessary to facilitate the witness giving a full and candid account of the anticipated evidence. [41] In the case of R v JZS, 2008 BCCA 401, 238 CCC (3d) 522, aff’d 2010 SCC 1, [2010] 1 SCR 3, this amendment was challenged asa constitutional infringement of the Appellant’s rights under

section seven of the Charter. The constitutional challenge was dismissed bythe British Columbia Court of Appeal. [42] In upholding the new legislative provision, the Court of Appeal found that the use of testimonial aids did not disturb any of the

traditional safeguards of trial fairness. The Court found that the presumptive use of a testimonial aid (screen or videoconferencing) didnot infringe any fair trial rights. The Court put an end to the debate surrounding the common law right to publicly confront a witness and,speaking through Smith J.A. at paragraph 41, proclaimed that “[u]nder our criminal justice system, an accused has no constitutional rightto a face-to-face “confrontation” with the complainant.” E.

Fair trial rights and witness interests [43] The right to a fair trial is a constitutionally protected right inuring to any citizen accused of a crime. A fair trial may be the ultimategoal of the criminal trial process, but there are also other interests at stake. There are many other citizens who stand to be affected by thecriminal trial process. [44] Trial fairness cannot be measured exclusively from an accused’s perspective. Broader social interests must also be taken intoaccount, including the interests of witnesses and other users of the justice system.

Society expects that the trial process will achieveaccurate verdicts, but it also expects that this will be done in a way that respects the rights and dignity of all participants involved in theprocess. This certainly includes an accused, but it also includes witnesses who are required by law to participate in the trial process. SeeR v Osolin, (SCC), [1993] 4 SCR 595 at 667-72, 86 CCC (3d) 481; R v Seaboyer, (SCC), [1991] 2SCR 577 at paras 19-21, 66 CCC (3d) 321; R v Mills, (SCC), [1999] 3 SCR 668 at paras 72-76, 139 CCC (3d) 321; Rv L(DO), (SCC), [1993] 4 SCR 419, 85 CCC (3d) 289. F.

The value of proximity and eye contact as a measure of truthfulness [45] There are references in common law jurisprudence to direct eye contact between accuser and accused as being a reliable measure oftruthfulness. The demeanour of a witness is culturally determined. For this reason, demeanour alone is an uncertain measure of reliabilityor truthfulness. Direct eye contact by speakers in some circumstances is considered to be a mark of profound disrespect. This isparticularly true in many aboriginal cultures where a child may be taught to avoid direct eye contact.

It makes little sense to apply Anglo-European values to a credibility assessment involving citizens from a different culture. [46] There can be no justification for requiring proximity in order to facilitate direct eye contact between accused and accuser. G. Conclusion: the right to publicly confront a witness [47] There is no common law right to publicly confront a witness as defined by counsel in submissions.

There is no jurisprudencesupporting the existence of such a right outside that provided by the common law with respect to the right of cross-examination. [48] There is no statutory provision conferring a right of public face-to-face confrontation upon a citizen accused of a crime. To thecontrary,

section 486.2 of the Criminal Code now provides witnesses less than 18 years of age with a presumptive right to use testimonialaids when called upon to testify in a criminal proceeding. This includes the right to testify by videoconferencing at a location outside thecourtroom. [49] The new statutory provisions allowing videoconferencing have survived constitutional scrutiny. Physical confrontation, and theintimidation associated with it, has no place either in a courtroom or in a process that is intended to elicit truth.

If truth is to be an endproduct of the trial process, the needs and sensitivities of all witnesses need to be recognized and respected. This is particularly true ofvulnerable witnesses. A child or youth’s fears could quickly overwhelm their ability to speak about frightening events. In the result,justice and the public’s perception of justice will suffer. [50] The “right” of face-to-face confrontation forms no part of the tenets of fundamental justice guaranteed by the Charter. It is the rightto a fair trial and the right to make full answer and defence that is protected.

It is only where the use of a testimonial aid infringes upon aprotected right that Charter relief becomes available.

Section 486.2 of the Criminal Code vests discretion in the Court to order a witnessto testify without a testimonial aid in an appropriate case. This is as it should be. [51] The proposed use of videoconferencing in the applications before the Court does not affect the Defendants’ rights to make full

answer and defence. The Defendants, together with the trier of fact, will see and hear the witnesses testify. They will be able to assess the demeanour of the witnesses as they speak. The appearance of the witnesses by videoconferencing does not affect either the right or the ability of the Defendants to conduct comprehensive cross-examinations. There is no evidence before this Court to suggest otherwise. There is no empirical evidence before this Court to suggest that the truth telling function of a witness is impaired when they speak outside the courtroom through the use of this technology.

There is no evidence to suggest that the proposed use of videoconferencing will in any way affect the Defendants’ rights to a fair trial as this right has been defined in the jurisprudence. H. Technology, the courtroom, and the 21st century [ 52 ] Technology has shaped the modern world. Technology has transformed the way government, business, and industry deliver their services. Technology has changed, and is changing, the way we relate to each other as people, as communities, and as nations. [ 53 ] Transportation technology of the 19th and 20th centuries created an extremely mobile society.

We are now a global village. Physical proximity has receded in importance as technology has enhanced access to services over greater and greater distances, and to larger and larger populations. The design of our cities reflects this. [ 54 ] If the development of machine technology touched off the industrial revolution of the 19th century, the communications technology of the 20th and 21st centuries has similarly ushered in a new social revolution that is global in its scope. Modern communications technology and internet based social media now shape public opinion.

The newspaper and the book are under threat by electronically distributed mediums. [ 55 ] As referenced earlier in this judgment, the spatial proximity of the witness to the accused in the courtroom was mandated in early common law jurisprudence by the absence of any technology that would allow the accused and the trier of fact to simultaneously see and hear a witness testify. [ 56 ] Much has changed since the early common law jurisprudence was pronounced.

Communications technology of the 21st century now allows for a “virtual presence” even though a speaker may be many thousands of kilometres away from a courtroom. All the ingredients necessary for the “confrontation” envisaged by the common law can now be achieved without any need for physical immediacy. [ 57 ] Videoconferencing technology enhances and improves access to justice. This technology substantially reduces the cost of delivering justice services. By eliminating the uncertainties and delay associated with witness travel, the use of this technology promotes more expeditious justice.

More importantly, videoconferencing technology allows the Court to balance the needs and sensitivities of witnesses with the need to ensure trial fairness. This can be done without impairing the full and effective right of cross-examination that is so essential to a fair trial. [ 58 ] The strength of the common law lies in its flexibility and adaptability. The clanking of medieval chains should not dictate how a Court in the 21st century conducts its proceedings.

As new technologies become available, the common law must either adapt to new social and technological realities or risk redundancy by losing touch with a world that is now being defined by technology. VI. VIDEOCONFERENCING AND EFFECTIVE CROSS-EXAMINATION [ 59 ] Defence counsel submits that no effective cross-examination is possible where a witness testifies by means of a videoconferencing link with the courtroom. [ 60 ] There is no affidavit or other evidence before me to substantiate such a claim.

There is no real explanation advanced as to how the reception of testimony by videoconferencing renders cross-examination less effective than cross-examination in the courtroom. This Court’s experience with videoconferencing suggests otherwise. [ 61 ] Videoconferencing has been in common use in the Nunavut Territory for four years. It has been used to facilitate long distance testimony in every conceivable type of criminal allegation, including homicides. It has been used effectively in preliminary inquiries and

at trials. [ 62 ] There have occasionally been technical problems with a videoconferencing link. This is possible with any technology. In this Court’s experience, where videoconferencing works appropriately, it works exceedingly well. The overall merits of the use of a particular technology should not be assessed on the basis of those few incidents where the technology has failed or where the videoconferencing facility being used has proven to be substandard. [ 63 ] If cameras are mounted properly, both the Court and the cross-examiner can have a close-up image of the speaker’s face as they are speaking.

Minute changes in demeanour and voice inflection can be readily detected. The sound available through videoconferencing is usually clearer than that heard from a witness in the courtroom, particularly in the makeshift courtrooms in common use in communities outside Iqaluit.

The close-up image of the speaker appearing by videoconferencing is usually a better vantage point to assess a witness’s demeanour than a witness speaking from a witness box at considerable distance from the trier of fact. [ 64 ] In Nunavut, there is a split second delay between the speaker speaking and the reception of the video transmission in the courtroom. This delay is caused by distance and the use of a satellite feed. [ 65 ] The Court rejects the submission that this delay causes any appreciable damage to the “flow” of cross-examination.

In Nunavut and elsewhere in Canada, the flow of cross-examination is frequently delayed, and delayed significantly, by the need to translate the speaker’s words into a language that is understood by counsel and the Court. Counsel has never suggested that this significant delay renders a cross-examination ineffective.

The Court finds that any delay occasioned by satellite technology is of little consequence compared to the larger benefits accruing to the administration of justice by the use of this technology. [ 66 ] It is unknown if the Crown or Defence proposes to show the complainants any exhibits during the witnesses’ examination-in-chief or cross-examination. There was no evidence given, and no submissions made, on this point. Crown counsel will have to ensure that there is an effective mechanism available to do so. The Court expects Defence counsel to be consulted on this point.

If counsel cannot agree on an appropriate mechanism, the matter can be returned to court for further directions. [ 67 ] Parliament has embraced the use of videoconferencing technology as an effective means of balancing broader societal interests with the right of an accused to a fair trial. Videoconferencing is not only presumptively available for witnesses under the age of 18, but it is now also available for vulnerable adult witnesses. Testimony by videoconferencing is now presumptively required where a witness is located outside of Canada (see

section 714.2 of the Criminal Code ). [ 68 ] If evidence does exist to suggest that cross-examination is in fact impaired by this use of technology, then neither this Court nor Parliament is aware of it. There is little doubt that the constitutionality of these provisions would be successfully challenged if this was the case. All constitutional challenges to date have failed. The jurisprudence suggests that the use of this technology does not interfere with either the right of cross-examination or the right to a fair trial. VII.

VIDEO CONFERENCING TECHNOLOGY AND THE ASSESSMENT OF CREDIBILITY [ 69 ] The Crown’s application with respect to the Defendants Hainnu, Kuniliusee, and Paniloo involves the proposed use of videoconferencing technology at a preliminary inquiry, not a trial. It has long been settled law that a justice presiding at a preliminary inquiry is not to weigh the evidence or make findings of credibility. This is the exclusive legal responsibility of the trier of fact during the trial proper.

This ground of argument in relation to the preliminary inquiry is therefore without merit. [ 70 ] The Defendant Illauq awaits his trial. The Crown proposes to use videoconferencing to receive the complainants’ testimony at this trial. The issue of the complainants’ credibility will have to be determined by the trial judge. This ground of objection is clearly applicable to the trial arena. [ 71 ] Defence counsel argues that the use of videoconferencing technology will impair the Court’s ability to properly assess the witness’s credibility at the trial of Defendant Illauq.

There is, once again, no affidavit or other evidence to explain how or why this might be so. For all the reasons outlined in the preceding section, I reject this argument. The trier of fact will have an excellent opportunity to assess both the demeanour and the credibility of the two young complainants as they testify by videoconference. This opportunity will be every bit as good, if not better, than observations ordinarily made by the Court in the courtroom at a distance from the speaker.

[ 72 ] This ground of objection also fails. VIII. THE SUFFICIENCY OF GROUNDS FOR THE CROWN APPLICATION [ 73 ] Through an oversight, the Crown has failed to reference

section 486.2 of the Criminal Code in its prayer for relief. The Crown application is thus ostensibly made pursuant to

section 714.1 . This

section provides as follows: 714.1 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. [ 74 ] Three concerns are raised by counsel for the Defendants. [ 75 ] Firstly, it is said that the affidavit of K. Kitz is insufficient because it is not explained why the witnesses’ attendance would interfere with any important aspect of their lives, such as the witnesses’ employment or personal lives. [ 76 ] Secondly, it is said that the affidavit is insufficient because it does not state what videoconferencing equipment will be used and who will monitor the witnesses when they are speaking.

It is suggested that the integrity of the proposed videoconferencing site is suspect. [ 77 ] Thirdly, it is argued that the affidavit is insufficient because it offers information that is now stale-dated. The affidavit used in support of these applications was sworn on April 6, 2011. [ 78 ] The Court will deal with these issues in the order in which they appear. A. Why attendance in court would interfere with the witnesses’ lives [ 79 ] The uncontested affidavit suggests that the two complainants are young and vulnerable.

The affidavit material suggests that both teens are undergoing treatment and stabilization for a variety of needs. The affidavit material suggests that both teens struggle with depression and suicidal ideation. The affidavit suggests that both complainants presently benefit from a support network that has been created at their treatment facility to ensure their stabilisation.

The uncontested affidavit evidence suggests that these vulnerable teens may be put at greater risk if they are moved back to their home community for a court hearing and are required to testify in the presence of the Defendants. [ 80 ] A move away from a support network to go to court in any location will obviously separate these young witnesses from their support network. The trial process for witnesses of any age is very stressful. This is particularly true for complainants in sexual offences. There is nothing before me to suggest that the youth are now out of risk.

There is nothing before me to indicate that the teens no longer suffer from depression or suicidal ideation. Defence counsel urges this Court to take a chance and order personal attendance because the Crown’s affidavit does not spell out how and why going to court under these circumstances might elevate the risk of further emotional or

psychological harm to these teenagers. [81] The Court rejects the submission that the affidavit material is deficient. In the circumstances of this application, it is not necessaryto state the obvious. It is not necessary to state with precision how movement away from a support network will impact these witnesses’lives. It is not necessary to state with precision how and why removal from a support network and subsequent exposure to the trauma oftestifying in open court in the presence of the Defendants might be a source of additional harm. [82] This ground of objection is without merit. B.

The integrity of the proposed examination site is suspect [83] In advancing this ground of objection, Defence relies on the cases of R v Young, 2000 SKQB 419, 150 CCC (3d) 317 and R vOsmond, [2010] NJ No 54, , (NL Prov Ct). These cases suggest that in support of a videoconferencing applicationthere needs to be evidence given with respect to the integrity of the proposed examination site. There must be some assurance that thewitness will be free from outside influences or interruptions.

The solemnity of the courtroom must be carried into the presence of theperson testifying by videoconferencing. [84] This Court is not bound by the decisions cited by the Defence. The Court does not agree that all of the criteria outlined in thesejudgments are applicable to this type of application. More specifically, this Court does not agree that a failure to outline the integrity ofthe proposed examination site is fatal to an application of this kind. [85] The Criminal Code sets out the criteria to be considered on this type of application. There is no reference in

section 714.1 to thecriteria that the Defence now relies upon to deliver a mortal blow to the Crown applications before this Court. [86] A degree of common sense must prevail. This Court will jealously guard the right of any accused to a fair trial within those limitscontemplated by law. This Court is not about to allow videoconferencing by Skype from a busy high school cafeteria. It will not allowany witness to be subject to distractions while testifying, whether speaking in court or out. The videoconferencing location must besecure.

The Court expects the undivided attention of any witness as he or she testifies. This is so whether the person is physically presentin court or “virtually present” by means of a videoconferencing link. [87] The Court expects any party, be they Crown or Defence, to ensure that reasonable steps are taken to maintain the dignity andsolemnity of the proceedings that bring the witness to court.

The Court expects the party seeking to use videoconferencing testimony toensure that the equipment in use at the proposed examination site is suitable for the task at hand and that the facility itself meetsreasonable standards for taking testimony by videoconferencing. This is not the responsibility of Court Services. [88] This Court does not propose to supervise officers of the court in advance of a hearing as they go about meeting these standards. Ifthe videoconferencing equipment or facility used by a party fails to meet the standards necessary for a fair trial, the videoconferencingwill be discontinued.

Any resulting delay will then lie at the foot of the party that has failed to meet the Court’s expectations. [89] This ground of objection to the affidavit material filed in support of the Crown’s application also fails. C. The affidavit material is stale-dated [90] The affidavit filed in support of these applications was sworn in April of this year. The Defence argues that the complainants’conditions may have changed since the affidavit was sworn. Anything is possible. The Court is not here to speculate about evidence thatis not before it.

Having led evidence with respect to certain facts and an opinion based on those facts, the Crown having conduct of theseapplications is bound to ensure that the Court is not being misled. The Crown is an officer of this court. [91] There is no evidence before me to suggest that the two young witnesses’ needs or circumstances have changed since the affidavit

was sworn. While it may have been prudent to bring these applications earlier, the Court notes from its records that in the case of the three Defendants awaiting preliminary inquiry, the Defence election was not entered until February 23 of this year. The affidavit was sworn six weeks later. [ 92 ] The Court is not prepared to take a chance on the health or safety of these young witnesses on the strength of a mere possibility that their conditions may have changed for the better. More is required than speculation. [ 93 ] The Court is not satisfied that this objection is made out. IX. OTHER CONSIDERATIONS [ 94 ] In applications of this kind, the Court is required by

section 714.1 to also consider the materiality of the witnesses’ evidence and the cost of transporting these witnesses to the site of trial, if personal presence is to be required. This Court has done so. [ 95 ] The witnesses’ evidence is central to the prosecution. These witnesses are the complainants on a number of sex-related offences. Sexual allegations usually arise in circumstances where there are no independent witnesses to the events at issue. The materiality of this evidence militates in favour of requiring the witnesses to attend court in person.

However, the materiality of the witnesses’ evidence is only one of three factors to be considered. [ 96 ] The witnesses are currently residing in Saskatchewan. The Court sits in the Nunavut Territory. Whether the trial or preliminary hearings are held in Iqaluit or Community X, travel expenses will be significant. Nunavut, unlike every other part of Canada, has no road system. Movement of citizens from southern Canada and between different communities within Nunavut is contingent upon air travel.

The costs associated with transportation in Nunavut exceed by many times the costs associated with transportation in other parts of Canada. [ 97 ] In Nunavut, transportation by air is also contingent upon the weather. This Court has many years of experience dealing with the vagaries of weather with a circuit court system that depends upon air links to service the Territory’s twenty-four circuit points. Harsh weather frequently pre-empts travel by air in the spring, fall, and winter.

The certainty of an appearance by videoconferencing must be weighed against the possibility of further delays in the movement of witnesses occasioned by bad weather. In Nunavut nothing is certain except the unexpected. [ 98 ] Nunavut’s geography, the significant costs associated with witness travel, the uncertainty of air travel in an area known for its extreme weather, and a highly mobile population all combine to highlight the advantages of using videoconferencing technology in Nunavut’s courtrooms.

As Nunavut’s isolated communities are hard-wired to accommodate videoconferencing at court locations outside Iqaluit, the use of videoconferencing will likely increase. X. CONCLUSION [ 99 ] Having given anxious consideration to the criteria set out in

section 714.1 of the Criminal Code , the Court is satisfied that it is appropriate in the circumstances of this case to permit the complainants to testify by way of videoconferencing link in proceedings involving the four named Defendants. There is a balancing of interests involved in reaching this decision. The right of the Defendants to a fair trial must be balanced against the needs and vulnerabilities of the young complainants who are the subject of these applications. The Defendants’ rights to a fair trial must not be compromised. A.

Defendants Hainnu, Kuniliusee, and Paniloo [ 100 ] This Court is satisfied that the ability of Defendants Hainnu, Kuniliusee, and Paniloo to make full answer and defence will not be harmed by allowing the complainants to testify by videoconferencing at their preliminary inquiries. The right to full cross-examination is not touched by granting this permission. The judicial officer presiding at the preliminary inquiry can see and hear the witnesses testify.

Credibility is not an issue. The only issue to be decided at the preliminary inquiry is whether there is some evidence upon which a jury, properly instructed, might reasonably convict. B. Defendant Illauq [ 101 ] In the case of Defendant Illauq, the use of videoconferencing has no real impact on the Defendant’s ability to mount a defence. The Crown has proceeded summarily. No jury is involved.

The Court is satisfied that a legally trained and experienced judicial officer can properly assess the credibility of witnesses who are appearing by videoconferencing and will not be improperly swayed or influenced by that fact. [ 102 ] In the circumstances of this case, given the age, vulnerability, and special needs of these witnesses and the time, distance, and cost associated with travel to a distant court location, the Court is satisfied that justice is better served by permitting these witnesses to testify by videoconferencing at Mr.

Illauq’s trial, notwithstanding the materiality of their anticipated evidence. XI. THE REQUEST FOR A CHANGE OF VENUE FROM COMMUNITY X TO IQALUIT [ 103 ] The Court is not able to provide videoconferencing in Community X to the standard that is necessary for a trial. While videoconferencing is available through the telehealth network at the local nursing station, it is not available at the location where court is held.

The community centers and schools that serve as courtrooms in Nunavut outside of Iqaluit are not yet hard-wired for videoconferencing. [ 104 ] The small room available at the nursing station for telehealth may be adequate for a consultation with other medical professionals, but it is unsuitable for use by a court. The court reporter, Crown, Defence, Defendant, and Judge cannot easily be accommodated in this space. The nursing station telehealth room is also not generally open to the public.

The room is so small that members of the public wishing to observe the proceedings cannot be accommodated. [ 105 ] Having approved the Crown applications to allow testimony by videoconferencing, the Court finds it necessary to order a change of venue from Community X to the City of Iqaluit in order to facilitate the videoconferencing process. The courthouse in Iqaluit has been wired for videoconferencing. [ 106 ] Counsel for the Defendant Hainnu does not oppose the change of venue to Iqaluit.

Counsel for the Defendants Kuniliusee, Paniloo, and Illauq does oppose any change of venue for the purpose of preliminary inquiry and trial. [ 107 ] There is no specific prejudice to the Defendants alleged by counsel in opposition to this request. The Court will cover any travel costs of a Defendant associated with the movement of proceedings to a different community. The individual preliminary inquiries for the Defendants Hainnu, Kuniliusee, and Paniloo will likely be completed within a half day. The trial of Mr. Illauq will not likely take more than a day.

Disruption to the Defendants’ daily lives and routines would be minimal. [ 108 ] Given the jury election, if the preliminary inquiries proceed in Community X, it is likely that the Court would have to order that the courtroom be closed. Many citizens attend court in the smaller communities outside Iqaluit. Closure of the courtroom for the preliminary inquiry may be necessary to avoid contamination of a potential pool of jurors. [ 109 ] This Court does not lightly entertain changes of venue to a different community. Every effort is made to hold trials in the community of origin.

There is great value to the community in doing so. It is particularly important in Nunavut for the local community to see justice being done. However, the long-standing practice of this Court may occasionally have to yield to necessity. [ 110 ] In the circumstances of this case, the Court is satisfied that the overall benefits accruing to the administration of justice through a change of venue exceed the public benefits associated with access to justice in the community of origin. A change of venue from Community X to Iqaluit is therefore ordered with respect to all four matters.

XII. THE EFFECT OF

SECTION 486.2 OF THE CRIMINAL CODE [ 111 ] The Crown, through an oversight, failed to direct its mind to the provisions of

section 486.2 of the Criminal Code when bringing these applications for videoconferencing. In open court, the Crown has stated its intention to bring further motions under

section 486.2 , if necessary, to allow the 15 year old complainants to testify by videoconferencing at both the trial and preliminary inquiries. [ 112 ] By virtue of the latest amendments to the Criminal Code , these 15 year old witnesses now have a presumptive right to testify by way of videoconferencing in “any proceedings against an accused” (

section 486.2(1) ). This right applies equally to preliminary inquiries and trials. The Court still has the discretion to order personal attendance for testimonial purposes, but may do so only where the Judge is of the opinion that the use of a testimonial aid would “interfere with the proper administration of justice” (ibid.). [ 113 ] This Court does not encourage a multiplicity of motions. The Court has elected to decide the merits of the Crown application on the basis of

section 714.1 alone because the issue of videoconferencing and its impact upon the alleged common law “right of public confrontation” is a matter of pressing importance to the administration of justice in Nunavut. [ 114 ] For greater certainty, this decision relates only to the judge alone trial of the Defendant Illauq and to the preliminary inquiries now scheduled for Defendants Hainnu, Kuniliusee, and Paniloo. Further applications will be necessary for trial purposes in the event that any of these three citizens are committed to stand trial. [ 115 ] All existing hearing dates set for Community X are cancelled.

All four matters will be spoken to on the next assignment court in Iqaluit on August 8th 2011 at 1:30p.m. Dated at the City of Iqaluit this 12th day of July, 2011 ___________________ Justice R. G. Kilpatrick Nunavut Court of Justice