R. v. Ikalukjuak, 2022 NUCJ 17

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ikalukjuak, 2022 NUCJ 17 Date: 20220413 Docket: 10-20-32-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tommy Ikalukjuak __________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): F. Alibhai Counsel (Accused): L. Shadley Location Heard: Iqaluit, Nunavut Date Heard: March 25, 2022 Matters: Application pursuant to s.714.1 of the Criminal Code , R.S., c. C-34, s. 1. to allow a witness to testify via videoconference. REASONS FOR DECISION (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Ikalukjuak has a judge alone trial scheduled to proceed in Pangnirtung. The crown brought an application to have two witnesses, both police officers, testify by either video or audio conferencing. The defence agreed to having one of the witnesses testify remotely. They oppose the application in relation to the other witness. II. LEGISLATION [ 2 ] Pursuant to s.714.1 of the Criminal Code , R.S., c. C-34, s. 1. a court may order that a witness give evidence by audio conference or videoconference if doing so would be appropriate having regard to all the circumstances, including: (

a) the location and personal circumstances of the witness; (

b) the costs of having the witness appear personally; (

c) the nature of the witness’ evidence; (

d) the suitability of the location the witness will be testifying from; (

e) the right of the accused to a fair and public hearing; (

f) the nature and seriousness of the offence; (

g) any potential prejudice to the parties if the witness cannot be seen. [ 3 ] The list of factors to be considered is not exhaustive. III. ANALYSIS [ 4 ] The accused is charged with serious offences arising from a firearms incident. The mandatory minimum penalty, should he be convicted, is four years in custody. [ 5 ] The witness the crown seeks to have testify remotely currently lives in Alberta. Appearing personally would require at least two days of travel each way. The cost is high, as is the norm with northern travel. The witness does not have a medical condition that prevents such travel.

There are no extraordinary circumstances that make such travel particularly difficult or risky for the witness, although she would be inconvenienced to a greater extent than a witness who lives in the community. The witness is an RCMP officer and would be testifying in her capacity as an RCMP officer who responded to the call. Testifying in court is part of the job of an RCMP officer. She would not be losing any time from work, in the sense of losing pay. This is a difficult factor to consider as RCMP officer are relocated routinely.

The relevant factors with respect to the circumstances of the witness are inconvenience and cost. While these factors must be given weight, they cannot be the driving or decisive factors, as doing so would result in RCMP officers routinely being granted permission to testify remotely, thereby almost creating a separate category of witness. [ 6 ] There is a dispute between counsel as to the nature of the evidence to be given by the witness. Crown counsel submits that the witness is not a crucial witness.

They submit that the witness was not present during the incident and will only be able to testify as to things she observed after the incident. To support its submission the crown filed a copy of the officer’s general report. Defence counsel

submits that the reliability of the witness will be an issue and that this is best assessed by in person attendance. [ 7 ] The court is not in the best position to determine this issue. The scope of the evidence of some witnesses, such as expert witnesses, are clearly defined and make it easier to assess whether in-person attendance is required. With other types of witnesses the assessment is much more difficult. [ 8 ] The court does not know the full nature of the evidence in the case nor what the defence will be.

Defence counsel is not restricted to cross-examining only on issues testified to in direct examination. Defence counsel advises that the witness may be required to locate things and position on maps and photos, a process which can be very difficult using video technology. [ 9 ] The most significant concern in this application is the suitability of the technology.

I appreciate that there was confusion over the trial date and whether the matter would be proceeding as scheduled, so counsel perhaps did not take the steps they might otherwise have taken. [ 10 ] Crown counsel advises that arrangements were made to have the witness testify with a video link at the local health centre. Alternatively, counsel submits that MS Teams could be used for a video link. [ 11 ] If the link at the local Health Centre were used the court would be required to relocate mid-trial. While this is inconvenient, it is not reason to deny the application.

The court must often be creative in how it provides its services. The concern is that such a process restricts the access of the public and offends the open court principle. [ 12 ] The use of MS Teams is also problematic. Counsel proposes the use of a lap top computer for this technology. This is not satisfactory as it does not provide a screen of sufficient size that all participants can view it.

Further, my experience with this type of technology in the communities is unsatisfactory. [ 13 ] The practice in this jurisdiction when video conferencing is to be used is to submit a form well in advance of the trial date to Court Services requesting videoconferencing facilities. This allows Court Services to make the necessary arrangements, including arranging for a large screen so that court participants and members of the public can see the witness testify. Discussions and arrangements regarding the use and sharing of exhibits can also occur. IV.

CONCLUSION [ 14 ] The application to have the witness testify remotely is dismissed. Dated at the City of Iqaluit this 14th day of April 2022, ___________________ Justice S. Cooper Nunavut Court of Justice