R. v. De Bartolo, 2020 BCPC 220 (CanLII)
|
|
2020 BCPC 220 |
|
|
Date: |
||
|
File No: |
30177‑1‑K |
|
|
Registry: |
Prince Rupert |
|
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
ANTONIO JOHN DE BARTOLO
ORAL REASONS ON A SECTION 714.1 CRIMINAL CODE APPLICATION
OF THE
HONOURABLE JUDGE D. PATTERSON
|
K. Schille |
|
|
Counsel for the Defendant: |
K. Anderson |
|
Prince Rupert, B.C. |
|
|
Date of Hearing: |
October 23, 2020 |
|
Date of Judgment: |
October 23, 2020 |
[1] THE COURT: This is an application by the Crown to allow an essential witness in the prosecution of Antonio John De Bartolo to appear at trial by videoconference.
[2] Mr. De Bartolo has been charged with a single count of assault contrary to s. 266 of the Criminal Code. The offence allegedly occurred on the 8th day of August of 2019. The BC Prosecution Service’s case involves an allegation of intimate partner family violence by Mr. De Bartolo, resulting in physical injury to the complainant, Kirstie Lepatourel.
[3] Today is October 23, 2020. Accordingly, the alleged offence occurred approximately 14 and-a-half months ago. This is a second trial date. On February 24, 2020, the BC Prosecution Service successfully adjourned the first trial date of February 26, 2020. I am told by Mr. Anderson, who is counsel for Mr. De Bartolo, that the defence opposed the adjournment, but that it was granted in any case. Apparently the BC Prosecution Service had lost contact with Ms. Lepatourel and accordingly was not in a position to proceed to trial on February 26, 2020.
[4] The defence opposes today’s s. 714.1 Criminal Code application by the BC Prosecution Service, which asks me to allow Ms. Lepatourel to appear at the upcoming trial by videoconference. The trial is currently set to begin four days from now, on October 27, 2020. Mr. Anderson claims that the defence is opposed to the BC Prosecution Service’s s. 714.1 application because it will interfere with Mr. De Bartolo's right to a fair hearing.
Considerations:
[5] Looking at s. 714.1, as well as s. 715.26 of the Criminal Code, I have a number of factors to consider.
[6] I have been presented by counsel with two cases that are both on point: R. v. Zamora, a decision of Madam Justice Duncan, at 2020 BCSC 1259, and R. v. Glazier, a decision of my brother Judge Brecknell, at 2020 BCPC 158. The cases set out the law and they also set out the issues that are to be considered by a judge such as myself hearing one of these s. 714.1 applications.
The location and personal circumstances of Ms. Lepatourel
[7] Ms. Lepatourel now resides in Fort McMurray, Alberta. We are looking at Ms. Lepatourel being away from her family: three children aged 10, 13, and 15. We are also looking at her being exposed to COVID-19 during her travels, the disease caused by the new coronavirus called SARS-CoV-2. Ms. Lepatourel would also be spending considerable time in airplanes and at airports which, quite frankly, other than long term care facilities, group homes (community living), independent living facilities, and assisted living homes, are probably the most likely places one can get COVID 19.
[8] Ms. Lepatourel works as a nurse. I have not been told by Mr. Schille if Ms. Lepatourel will have to self-isolate upon her return to Alberta because of the nature of her work. So I am going to assume, for purposes of this application, that she will not have to self-isolate unless, of course, she was to come down with symptoms of COVID 19 during the course of her travels.
[9] I am advised by counsel, and I accept it, that Ms. Lepatourel has been less than efficient at keeping in touch with the BC Prosecution Service office, and that is one of the reasons, if not the reason, that the first trial date was adjourned, because the prosecutor had lost track of Ms. Lepatourel. Nevertheless, the BC Prosecution Service now knows where she is and apparently Ms. Lepatourel is willing to testify.
The costs that would be incurred if Ms. Lepatourel were to appear personally
[10] I am told by Mr. Schille on behalf of the BC Prosecution Service that the airfare cost would be approximately $1,933.44 for Ms. Lepatourel to fly from Fort McMurray, which is in northern Alberta, to here in Prince Rupert, which of course is in northwestern British Columbia. Although the business class ticket quote does not show this per se, I take it that the reason for a business class booking for Ms. Lepatourel is because of the flexibility required, due to the short time period involved.
[11] Air Canada, in its wisdom, is the only airline that flies commercially between Vancouver and Prince Rupert; however, it now only offers a maximum of one flight a day as a result of the COVID 19 pandemic and, even then, it is not a daily flight. No other airlines, other than the local float plane operators, fly commercially into the Prince Rupert area. And the float planes do not have the ability to take passengers to or from Vancouver.
[12] Thus, Ms. Lepatourel would have to fly from Fort McMurray to Calgary, then from Calgary to Vancouver, then from Vancouver to the Prince Rupert area. She would be flying for 20 hours and 4 minutes to get to Prince Rupert, departing Fort McMurray at 8:00 p.m. in the evening on Sunday, October 25, and she would have to either sleep at an airport or try to catch a nap on a plane during her journey to Prince Rupert.
[13] Upon arrival at the Prince Rupert Airport, Ms. Lepatourel would then have to get on a shuttle bus that takes airport passengers to the ferry. The ferry takes the shuttle bus to Kaien Island and then, once on Kaien Island, the shuttle bus drives to the shuttle bus center in downtown Prince Rupert, where passengers disembark. Ms. Lepatourel would then spend Monday night, Tuesday night, and Wednesday night in Prince Rupert.
[14] Ms. Lepatourel’s return flights to Fort McMurray would begin on Thursday, October 29, 2020, at 3:40 p.m. in the afternoon. However, she would have to be at the Prince Rupert shuttle bus center no later than 1:30 p.m. Flying home, Ms. Lepatourel would fly from the Prince Rupert Airport to Vancouver, Vancouver to Calgary, and Calgary to Fort McMurray.
[15] Now, as anybody who has ever flown in or out of Prince Rupert knows, it is not that simple to fly in or out of Prince Rupert. You fly only and if the weather allows. And we get some mighty wicked windstorms here on the northwestern coast of BC, especially in the months of October to April, sometimes for weeks on end.
[16] Ms. Lepatourel’s hotel accommodation would be another $270. She would also be entitled to her per diem at $51 a day, so another $204.
[17] Therefore, the expense of bringing Ms. Lepatourel to Prince Rupert for the trial is significant. The cost estimate does not include taxes, so we are looking at in excess of probably $2,600-$2,700.
The nature of Ms. Lepatourel’s anticipated evidence
[18] The community of Prince Rupert has far too many allegations of intimate partner violence. Many communities in the north have far too many allegations of intimate partner violence. Ms. Lepatourel is the key witness in the BC Prosecution Service’s case against Mr. De Bartolo, as she was his intimate partner and she was the victim of the alleged assault.
[19] So I am of the opinion that there is a public interest in seeing an intimate partner violence alleged assault proceed to trial.
The suitability of the location from where Ms. Lepatourel will give evidence
[20] It is interesting that s. 715.26 sets out as one of the four factors to be considered is the suitability of the location from where the judge or justice will preside, because that is not going to be an issue in relation to this matter, as I will be in my courtroom in Prince Rupert. But as I raised with counsel, we do not know where or how Ms. Lepatourel will testify, because the Fort McMurray courthouse has been less than accommodating.
[21] The Crown is hopeful that with a court order that Ms. Lepatourel be allowed to testify by way of videoconferencing, that the Fort McMurray courthouse will then accommodate that and allow it to occur.
[22] I really do not know what to make of the fact that Fort McMurray does not want to cooperate without a court order. It seems to me that they are being obstructionist and I have not been given a valid reason why they would be that way. A click on the computer should show them, “yes, there is a room available, yes, there is a video unit available, and British Columbia, here is the cost to you.” End of story. It really should be that simple.
[23] Whether or not it was that somebody at the Fort McMurray registry did not want to take the time to check or whether they have a policy in place, I simply do not know. But it leaves me wondering how it is that Ms. Lepatourel is going to testify if I allow her to do so by videoconferencing on the trial date, which is fast approaching -- October 27, 2020.
Mr. De Bartolo’s right to a fair and public hearing
[24] I am of the opinion that the number one factor is, as set out in s. 714.1(e), the accused's right to a fair and public hearing. Mr. Anderson believes that credibility will be the major issue at the trial and that I, as the trier of fact and law, will need to see Ms. Lepatourel testify in person in order to properly assess her credibility.
Conclusion
[25] Going through the s. 714.1 factors that I need to consider, I have no doubt that with Ms. Lepatourel being in Fort McMurray, Alberta, it will be a costly exercise to bring her to Prince Rupert for the trial. That said, the financial costs to the Province of BC if Ms. Lepatourel were to testify in person are, I believe in this case, irrelevant. The reality is the government has to be willing to spend money to operate the justice system, especially in cases of alleged intimate partner violence. It is the cost of doing business for the government.
[26] The personal circumstances -- I do not know why Ms. Lepatourel is in Fort McMurray, and it probably does not matter. That is where she is at, and she is with her three children. And regardless of whether or not she has a new intimate partner or some other arrangement for babysitting when she is at work, the reality is we are talking Sunday night, Monday night, Tuesday night, Wednesday night, Thursday night, and up until late Friday, away from her three children. So certainly that factor weighs in favour of videoconferencing.
[27] Ms. Lepatourel’s evidence is essential to the prosecution case. Simply put, without her evidence, the BC Prosecution Service has no case, so that weighs in favour of allowing videoconferencing.
[28] Again as I have indicated, I do not know where the location will be that Ms. Lepatourel will give her evidence, and so that weighs in favour of denying the application.
[29] As pointed out by my brother Judge Brecknell at paragraph 5 in Glazier, beginning in the -- oh, I will read the whole paragraph:
With regard to the probation officer's evidence, it is my view that such evidence could be taken by video. It is done all the time. The limitation would be the limitation of the technology. It is common, particularly in remote and more rural areas of this country, for witnesses who are in one location to give evidence by video to another. The court is well able to assess their credibility and reliability on such a video feed, and I would simply state by way of an example that we regularly allow complainants of serious sexual assault matters to appear remotely by close-circuit television and their credibility and reliability is capable of being assessed in this circumstances.
[30] And then the following at paragraph 6:
The limiting factor with regard to the probation officer's evidence would be whether the technology would work in a fashion that would allow the court to make whatever findings it needs to make on the evidence. In other words, would the probation officer be able to see clearly enough around the courtroom in Fort Nelson by a camera pan in order to point out the person that they may have dealt with on the day in question? Would the judge here in Prince George be able to see what the probation officer was seeing by way of that camera pan or would the court only see the partial screen during that part of their evidence. If it was only an application concerning that witness' evidence, I would find in favour of the Crown.
[31] In the present case, I am told that the BC Prosecution Service is not going to be looking for Ms. Lepatourel to enter any exhibits.
[32] Identification may or may not be an issue. I was not told. One would assume not, since the allegation is of intimate partner violence, but I do not know.
[33] I have considered the factors set out in the Zamora decision, and referring specifically to the quote included at paragraph 26 of Zamora from the Nova Scotia Court of Appeal’s decision in R. v. S.D.L., 2017 NSCA 58:
That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice.
[34] And then at sub (3):
When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.
[35] And then at sub (6):
Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit.
I did not receive an affidavit in this case.
[36] And at sub (7):
When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited.
I cannot do that because we do not know the location where the videoconferencing is going to be originating from.
[37] And finally at sub (8):
Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify “in a courtroom…or at the offices of Victims’ Services….” To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.
Again, I do not know if that is going to happen in this case.
[38] So while the humanist part of me wants to say, “yes, allow Ms. Lepatourel to appear and give her evidence by videoconferencing,” when I consider all the factors as set out by Madam Justice Duncan in the Zamora decision -- and by my brother Judge Brecknell in the Glazier decision -- I reluctantly come to the conclusion that with my not knowing how the technology is going to work for Ms. Lepatourel’s evidence in Mr. De Bartolo’s case, it would be inappropriate of me to grant the BC Prosecution Service’s s. 714.1 application.
[39] Therefore, the application is denied.
(REASONS CONCLUDED)