IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The accused (“Mr. N.”) is charged under s. 271 of the Criminal Code with sexually assaulting the complainant (“Ms. B.”) in August 2018. The Crown is proceeding by indictment. An eight-day trial is scheduled before me between July 19 and July 29, 2021, at the Provincial Court of British Columbia in Vancouver,

[2]         The Crown has filed an application pursuant to s. 714.2(1) of the Criminal Code. The Crown intends to call Ms. B. to give evidence by way of videoconference. The complainant lives in New Zealand.

[3]         The defence presented argument before this Court at the application heard on March 31, 2021. The defence opposes the Crown’s application and asserts that the complainant should testify at the trial in person.

[4]         My Ruling on this application is subject to a publication ban under s. 486.4(2) of the Criminal Code. That ban prohibits the publication or broadcast of any information that could identify the complainant. Although there is only a limited amount of information about the criminal charge before this Court, it is possible even that limited amount of information might possibly identify the complainant. Accordingly, I have used initials for the names of the complainant and the accused in order to comply with the publication ban.

[5]         The issue to be decided is whether allowing the complainant to give evidence at trial by way of videoconference would be contrary to the principles of fundamental justice.

[6]         The Crown provided certain factual background information in an affidavit sworn by one of its paralegals. That background information follows.

[7]         On March 11, 2020, the World Health Organization declared a pandemic. In response to that declaration, the federal government and public health authorities in Canada set out practices to be followed to reduce the spread of Covid-19. One of the directives said Canadians should practice physical distancing to reduce the spread of the virus.

[8]         On March 16, 2020, Dr. Bonnie Henry, the Provincial Health Officer for British Columbia, issued an order, which limited the number of persons who could gather together to 50 persons. The following day, March 17, 2020, Dr. Henry declared a public health emergency. On March 18, 2020, the B.C. Minister of Public Safety and the Solicitor General declared a provincial state of emergency. The state of emergency was extended over the course of the last year. British Columbia was in a state of emergency when this application was heard in court. (I take judicial notice that it remains in effect today.)

[9]         On April 14, 2020, the Provincial Court of British Columbia published a notice to the profession regarding suspension of regular court operations. The regular operations of the Provincial Court of British Columbia were suspended at all locations to protect the health and safety of court users and to help contain the spread of Covid-19. In those circumstances, individuals were strongly discouraged from attending any courthouse.

[10]      On June 5, 2020, the Provincial Court of British Colombia published another notice to the profession regarding in-person proceedings during Covid-19. That notice has been revised many times since June 5, 2020. A subsequent notice issued on February 16, 2021, provided that if any potential witnesses were reluctant to attend court due to health-related concerns or for other reasons related to the public health emergency, the parties should arrange to address the question whether the witnesses could give evidence by other means, such as by affidavit or testimony by telephone or videoconference.

[11]      On June 12, 2020, the Provincial Court of British Columbia published a notice to the profession regarding the partial resumption of in-person proceedings; that notice has been revised 11 times. The notice stated that the chief public health officers of Canada and British Columbia still required people to keep a safe distance from each other. However, there could be a cautious re-opening of public places with health and safety protocols in place to minimize the transmission of the virus.

[12]      On November 7, 2020, at a press conference, Dr. Henry announced new regional Covid-19 restrictions. Those restrictions included no social gatherings of any size with anyone other than a person’s immediate household. Dr. Henry also strongly recommended that travel into and out of the Fraser Health and Vancouver Coastal Health regions be limited to essential travel only.

[13]      On February 5, 2021, Dr. Henry extended indefinitely the public health order regarding gathering of persons and events restricting people from visiting other people in their residences, as well as, from most gatherings and events. On March 18, 2021, the public health order was amended to allow up to 10 people to gather outdoors. That order noted that social interactions in close contact resulting from the gathering of people and events promoted the transmission of SARS-CoV-2 and increased the number of people who developed Covid-19 and became seriously ill. It also noted that virus variants of concern are now present in Canada and in British Columbia and have heightened the risk to the population, if people gather together.

[14]      As of March 29, 2021, the BC Centre for Disease Control website (then last updated March 26, 2021) showed there had been 1,449 deaths in British Columbia from Covid-19. There were then 6,245 active cases with 294 persons in hospital, 81 of those persons in hospital were in critical care.

[15]      Ms. B. advised the affiant that she lives in Christchurch, New Zealand. She would prefer not to travel to Canada during the global pandemic. Ms. B. told the affiant she has had very little exposure to the pandemic in New Zealand. At the time, she was not overly anxious about the potential of contracting Covid-19.

[16]      The affiant told Ms. B. that if she came to Vancouver for the trial she would likely be away from home for approximately five weeks or so. This took into account the fact there would be quarantine periods both upon entering Canada and upon re-entering New Zealand. Ms. B. told the affiant she works casually as a nanny. Therefore, she would not be able to work remotely and would not have any income during any time she is away from New Zealand for the trial of this matter. However, notwithstanding the length of time she could possibly be away, Ms. B. said she would make the trip, if it were absolutely necessary.

[17]      The affiant obtained information about travel requirements from the Government of Canada website. As of March 12, 2021, all travellers over the age of five years must provide proof of a negative Covid-19 test, which must be taken within 72 hours of the scheduled departure time of a direct flight to Canada. Upon arrival, a traveller to Canada must complete the Covid-19 molecular test and stay at a government-authorized hotel while awaiting results of that test. After the required three-day stay at a government-authorized hotel, the traveller is required to complete the remainder of a mandatory 14-day quarantine.

[18]      The affiant made inquiries about exemptions that might be available for complainants or witnesses travelling to Canada on criminal matters. There were no such specific provisions on the Government of Canada website the affiant reviewed. The affiant also checked with the Public Health Agency of Canada. She learned there is a process to obtain an exemption, for example, for relatives who are travelling to Canada to see a family member at the end of his/her life. However, the affiant was told that this would be a “longshot”.

[19]      The affiant also reviewed travel restrictions in New Zealand by reviewing a Government of New Zealand website. The New Zealand government is currently advising its citizens not to travel overseas and that some New Zealanders overseas may need to stay where they are. It requires all travellers to New Zealand to take a Covid-19 test. If a Covid-19 test with a negative result is returned within 72 hours of the scheduled international flight. Testing facilities and private clinics are available in Vancouver that would provide testing for asymptomatic individuals for travel purposes. The cost for such tests range from $225 to $350.

[20]      Passengers returning to New Zealand from elsewhere must complete 14 days of quarantine at a managed isolation facility and test negative for Covid before entering the community. All travellers arriving in New Zealand are legally required to have a voucher allocating a place in a managed isolation facility before they can fly to New Zealand. Airlines are not permitted to board anyone who does not have a voucher. The affiant checked to see if bookings could be made. As of March 23, 2021, bookings were only being taken to July 2021. The affiant was not able to determine if there was any space in a managed isolation facility available after the trial of this matter. The basic cost to stay in a managed isolation facility is $3,100 for a single person in a room. Other costs such as meals, telephone calls etc. must be borne by the person staying in the facility.

[21]      As of March 23, 2021, a search result from a Government of Canada website of locations where a person may have been exposed to Covid-19, showed that 15 international flights into and out of Vancouver, between March 10, 2021, and March 21, 2021, had confirmed Covid-19 cases.

[22]      If Ms. B. were to travel to Vancouver from Christchurch, New Zealand, the approximate cost for return travel would be $11,550. That apparently is a conservative estimate. The return flight from Christchurch, New Zealand, to Vancouver is $4,232. The cost for Ms. B. to stay in quarantine in a hotel in Vancouver for 14 days and time to attend trial, approximately another 5 days, would be approximately $3,211. The complainant would be entitled to $53 per day for meals based on a government approved per diem rate. This is approximately $1,007 for meals. In addition, there would be a pre-flight Covid test in Vancouver at a minimum of $225 and the cost of quarantining in New Zealand on her return (hotel only) of $3,100.

[23]      The affiant made inquiries with the Crown Solicitor’s Office in Christchurch, New Zealand. She also had a Detective Constable from the Vancouver Police Department contact the Canterbury Police District in New Zealand. She learned that the Crown Solicitor’s Office might have a room available from which Ms. B. could testify by video. Additionally, it is also possible for Ms. B. to be accommodated in an office at a Canterbury Police District police station near Ms. B.’s residence to testify by video from that location.

[24]      On February 1, 2021, the affiant also participated in a test using MS Teams, which is the authorized platform being used by the B.C. Court Services Branch to facilitate video and audio court appearances. The test was run from a courtroom at the Vancouver Provincial Court. The affiant was shown how a witness and an exhibit appear on a large monitor as a split screen. The images were very clear. The affiant also tested the connection, camera, speakers, and microphone with Ms. B. On March 14, 2021, the affiant had, approximately, a 10-minute conversation with Ms. B. on MS Teams. She and the complainant had no difficulties using the equipment.

[25]      Mr. N. submits there is nothing more fundamental to the common law trial process than having oral evidence given in open court in the presence of the trier of fact.

[26]      Mr. N. acknowledges that s. 714.2(1) of the Criminal Code provides the court can receive evidence from a witness outside of Canada via technology, which permits the witness to testify in the virtual presence of the parties and the court. Mr. N. also acknowledges that the onus is on him in the circumstances of this case to object to the process, if he wants the witness in question to provide testimony in person.

[27]      In advancing his submission, Mr. N. provided a brief synopsis of the allegations against him. Those allegations are that on August 24, 2018, Ms. B. was in a club in downtown Vancouver when she met Mr. N. She consumed alcohol throughout the evening and the early morning hours of the next day. She became increasingly intoxicated. The complainant returned to Mr. N.’s residence, where she vomited and fell asleep. When the complainant awoke, Mr. N. was (allegedly) having sex with her. She told him to stop. However, Mr. N. did not, but (allegedly) continued until he ejaculated and was pushed away.

[28]      The complainant later left Mr. N.’s residence and called 911. She underwent forensic evaluation at a local hospital. On the afternoon of August 25, 2018, Mr. N. was arrested, processed for forensic evidence, and interviewed. He denied having sex with the complainant and was released shortly after his interview.

[29]      A vaginal swab taken from the complainant during the forensic evaluation, tested positive for the presence of semen. A male DNA profile on that swab matched the DNA profile of Mr. N.

[30]      Mr. N. submits that the reception of evidence from Ms. B. through technology permitting her to testify in the virtual presence of the parties and this Court would be contrary to the principles of fundamental justice. He also submits that s.7 and s.11 (d) of the Charter apply in this case. In this regard, he submits that the Criminal Code and the Charter require that the same standard be applied in addressing the principles of fundamental justice. He acknowledges, however, that those principles must be approached with a careful consideration of the context in which they are raised.

[31]      Mr. N. submits, that in considering whether the reception of the complainant’s evidence in this matter would be contrary to the principles of fundamental justice, the court should consider the factors enumerated in s. 714.1 of the Criminal Code. He maintains that the specific prescription provided in s. 714.1 is equally applicable when considering s. 714.2. In short, he submits that on this application this Court should have regard to all the circumstances including:

[32]      A significant consideration in this case, is that the credibility of the complainant is very much at issue. Mr. N. says that Ms. B.’s evidence will be vigorously contested. It is key to the Crown’s case against him. Moreover, the allegations are very serious and will have grave consequences for him should he be convicted. Additionally, Mr. N. points out that if Ms. B. is allowed to appear by videoconference there will be questions about where the evidence would be given and who would have access to Ms. B. during her testimony.

[33]      In dealing with the issue of credibility, Mr. N. acknowledges there is a difference of opinion in the case law regarding the assessment of demeanour as it relates to credibility. He acknowledges that a number of courts have ruled that remote testimony is sufficient for the purposes of cross-examination. If demeanour is a factor to be considered, it is either only one factor or irrelevant. However, Mr. N. submits other courts have concluded, where credibility is concerned, a significant witness such as a complainant should appear in court in person. The accused notes that provisions, which permit a witness to testify from a remote location, ought not to replace the established procedure of calling witnesses to the stand in criminal cases or of allowing the accused to face his accuser.

[34]      Mr. N. submits the presumption or starting point on this application ought to be that, unless circumstances warrant dispensing with the usual practice, the witness should be called to the stand to testify in person. He submits that when considering whether to dispense with the usual practice and to receive a witness’ evidence by video link, this Court must consider all of the circumstances of his case, as well as the enumerated factors from s. 714.1. He maintains that where there are serious issues of credibility, as there are in this case, a court should be reluctant to deprive the trial judge (and presumably the accused) of seeing the witness physically present in the courtroom while giving evidence.

[35]      Mr. N. further submits that, although it may seem appropriate to allow such an application in these times when we are experiencing a Covid pandemic, the court should exercise some caution. He submits just because something can be done, does not mean it should be done. He acknowledges that videoconferencing to receive evidence from a witness in a remote location is a tool available to this Court. However, it should not be used in his particular circumstances. He maintains that proper legal analysis should not be sacrificed on the altar of expediency.

[36]      The defence relied on the following cases: R. v. Turner, 2002 BCSC 1135, R. v. Chapple, 2005 BCSC 383, R. v. Hostacny, 2005 BCPC 218 (CanLII), 2005 BCPC 0218, and R. v. Raj, 2002 BCSC 193.

[37]      The Crown submits it is important to bear in mind that its application is made under s. 714.2(1) of the Criminal Code and not under s. 714.1. Section 714. 2(1) provides that, “a court shall receive evidence given by witness outside Canada …” The Crown stresses that the court has no discretion, but must receive evidence given by a witness outside Canada by use of videoconference. The Crown submits s. 714.2(1) creates a presumption in favour of receiving testimony by means of videoconferences. Moreover, the Crown points out the onus is on the defence to satisfy the court, if it objects to such an application, that receiving the evidence will be contrary to the principles of fundamental justice. Additionally, the Crown points out the onus on the defence is on a balance of probabilities and that the focus under s. 714.2(1) is much more narrow than in s. 714.1

[38]      The Crown points out that the principles fundamental justice include not only the interests of the accused, but also a consideration of the broader question of the fairness of the truth-seeking exercise a court must undertake. It requires a balancing of both public and private interests. The Crown points to case law and argues the test in s. 714.2(1), “contrary to the principles of fundamental justice”, sets a higher barrier to the exclusion of such evidence than the test, “appropriate having regard to all the circumstances”, which applies to the reception of remote evidence under s. 714.1 and s. 714.3 of the Criminal Code.

[39]      The Crown addressed issues regarding possible problems with the adequacy of the technology. The Crown notes that misgivings about the use of technology ought not to prevent such an order from being made. The Crown argues mere speculation that the connection for a videoconference might prove inadequate is not a sufficient ground to satisfy the onus placed on the defendant in this case pursuant to s. 714.2(1). Now, there is no reason to conclude that the technology available cannot be made to work at a reasonable level. The Crown submits the case law suggests that the standard for evaluating the quality of a video link cannot be to a standard of perfection.

[40]      The Crown points to the affidavit prepared by a Crown paralegal in support of this application. He notes that a test of the video link with the complainant in New Zealand using MS Teams worked perfectly. Moreover, he points out that the Provincial Court in British Columbia is currently using the MS Teams platform to conduct bail hearings, sentencings, and remand lists. Additionally, he notes even pre-pandemic cases indicate that taking evidence by video link has become an increasingly common method of taking evidence in both criminal and civil trials.

[41]      The Crown notes that technology has come a long way. The taking of evidence from the complainant in this case using videoconference would allow this Court and the parties to see and observe the witness. The Crown notes the defendant, in opposing the application to have the complainant give evidence by videoconference, is essentially asking for the gold standard. However, that is not what is required to receive evidence by videoconference in this case.

[42]      The Crown also addressed the factors in this case that favour a videoconference as a way for the complainant to give evidence. Those factors include the Covid pandemic that is affecting British Columbia and the rest of the world, the costs involved in having the complainant travel to British Columbia, and the Covid restrictions currently in place. The Crown points out there are restrictions in British Columbia in particular and in Canada generally. At the moment, a state of emergency exists. Moreover, several virus variants are now of concern to the authorities. He submits this situation is unlikely to improve in the near future.

[43]      The Crown points out the complainant now lives in New Zealand, which has restrictions on travel. If the complainant had to travel to British Columbia, she would be placed in a 14-day period of quarantine on arrival. When she returns to New Zealand, she will be placed in a further period of quarantine or managed isolation in New Zealand. That would be for 14 days in a hotel at the cost of $3,100. Additionally, she would need to prove she had negative Covid tests prior to flying to Canada and upon returning to New Zealand. Those tests typically need to be taken 72 hours prior to departure.

[44]      The total costs involved, as estimated by the Crown, are $11,550. That includes all flights, tests for Covid, hotels, and meals. Additionally, the Crown notes the complainant would lose time and wages from work. He notes she would essentially be under house arrest for 28 days.

[45]      The Crown also notes the complainant has an interest in this matter. She could be exposed to the virus. She could also expose others. The Crown asks this Court to consider the fact that the justice system wants to encourage people who have suffered to come forward. The Crown notes that between March 10 and 21, 2021, 15 international flights, flying into or out of Vancouver, had Covid-19 cases. The Crown acknowledges Ms. B. told the affiant that if it were absolutely necessary she would come to Vancouver for the trial. However, she prefers not to travel to Canada during the pandemic.

[46]      Moreover, the Crown notes that observations of physical demeanour during testimony are rarely determinative of credibility as a judge who relies solely on physical observations of demeanour is likely to fall into error. Additionally, the Crown submits there is no reason for this Court to infer that the defence will not be able to make full answer and defence in challenging the credibility or reliability of the complainant in cross-examination by videoconference.

[47]      The Crown points out that in the affidavit it filed in these proceedings, the affiant made inquiries about a suitable location from where the complainant could testify. The information provided by the affiant is that in mid-March she contacted the Crown Solicitor’s Office in Christchurch, New Zealand. A Crown solicitor advised her that they could probably have a room available depending on how long it would be needed and exactly when. Additionally, a Detective Constable with the Vancouver Police Department contacted the Canterbury Police District. The information he obtained was that the police would assist and would assign a liaison officer to manage the logistics.

[48]      The Crown notes that an appropriate location has been found in New Zealand, at a police station in Canterbury Police District. He notes correspondence entered as an exhibit on this application confirms that an officer can be present when the complainant gives her testimony, if it is felt that is necessary. He acknowledges that the defence has said there could be a perception of possible bias. However, the Crown does not believe this is a significant issue. The Crown submits there is no directive or provision that remote testimony must only be given from a courthouse. The issue is the general suitability of the location. The Crown submits what is important, in terms of finding a suitable location, is the nature and quality of the equipment that may be available from that location.

[49]      The Crown also addressed the issue of what would happen if the complainant were found to have lied or perjured herself. He points to s. 714.6 of the Criminal Code, which provides that evidence given outside of Canada is deemed to be given in Canada. This means that a person who does not tell the truth can be charged with perjury or contempt.

[50]      The Crown also made submissions on the issue of credibility that will no doubt arise at trial. The Crown submits that in enacting s. 714.2(1) of the Criminal Code, Parliament did not create an exception to be applied to key witnesses or to cases where credibility is in issue. The credibility of witnesses is usually a factor in trials to one degree or another. Additionally, the Crown notes that in enacting s. 714.2(1), Parliament must have considered the impact of technology generally.

[51]      The Crown reviewed the cases it relied on, namely, R. v. Turner, 2002 BCSC 1135; R. v. Christhurajah, 2016 BCSC 2399; R. v. Mapp-Farouk, 2020 ONSC 5040, R. v. Stevens, 2019 NSSC 2008, R. v. Sears, 2020 SKQB 239; R. v. Galandie, 2008 BCPC 6, and R. v. Liu, (22 January 2021), Vancouver 256801-1 (BCPC).

[52]      The application before this Court was filed pursuant to s. 714.2(1), which was amended in 2019 when Bill C-75 was enacted and reads:

[53]      The previous version of s. 714.2(1) was worded a little differently and read:

[54]      Section 714.2(1) applies in cases of videoconference evidence that is proposed to be received from an out-of-country witness. Section 714.1, which immediately precedes it, applies to cases where videoconference evidence is proposed to be provided by a witness in Canada. That section was also amended in 2019 and provides that a court may order a witness in Canada to give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate, having regard to all the circumstances.

[55]      The onus in the two sections is very different. Under s. 714.1 (which is a discretionary provision) the onus is on the party proposing to call the witness to satisfy the court that the proposed means of giving evidence “would be appropriate having regard to all the circumstances”. However, in contrast, s. 714.2(1) (which is mandatory) reads, “A court shall receive evidence given by a witness given outside Canada by videoconference …” Moreover, the onus is on the party opposing the admission of such evidence to do so on the basis that it would be “contrary to the principles of fundamental justice”.

[56]      Several cases have compared s. 714.2(1) and s. 714.1. In Galandie, Blake PCJ noted that the standard established by s. 714.2(1) for dealing with proposed testimony of witnesses from outside Canada, differs significantly from that referred to in s. 714.1 dealing with witnesses who are inside Canada. He noted at paragraph 10 that the difference in standards between the two sections reflects the nature of the mischief being addressed by the provisions underlying the reception of electronic evidence generally:

[57]      In Mapp-Farouk, Dunphy J. reviewed the scheme of the Criminal Code. He noted the regime that applies to the videoconference evidence of in-country witnesses is quite different from that which applies to out-of-country witnesses. In particular, he wrote, “The differences between them are meaningful and shed light upon the intentions of Parliament in the case before me”.

[58]      Section 714.1 describes a single regime for both audioconference and videoconference testimony of witnesses who are in Canada. He also noted that in cases under s. 714.1, the onus is on the party who wishes to call the witness to satisfy the court that the proposed means of giving the evidence is appropriate having regard to all the circumstances.

[59]      By contrast, as he put it, s. 714.2 places the shoe on the other foot in the case of out-of-country witnesses. In that section, the party opposing the receipt of the evidence in question bears the onus of satisfying the court that this method of receiving the evidence would be contrary to the principles of fundamental justice.

[60]      Dunphy, J. came to some conclusions from the comparison of s. 714.1, s. 714.3, and s. 714.2, namely:

[61]      In Stevens, Jamieson J. noted that s. 714.2(1) is presumptive and mandatory. She acknowledged this reflects the reality that a potential witness who is out of the country cannot be compelled to return to Canada to testify. See paragraph 12.

[62]      In R. v. Schertzer, 2010 ONSC 6686, Pardu J. wrote that the mandatory terms of s. 714.2(1) reflect the reality that a potential witness out-of-the-country cannot be compelled to return to Canada to testify. Admission of the hearsay statement of such a witness, without the opportunity to cross-examine by defence counsel, or doing without the evidence, are less likely to promote the truth-seeking function of the trial. See paragraph 34.

[63]      In Sears, Robertson J. commented on whether the factors enumerated in s. 714.1 are relevant to an application under s. 714.2. He noted that the two sections involved distinct and different factors. Applying the criteria of one section to the other could lead to error. See paragraph 6.

[64]      It is trite law that the principles of fundamental justice require that an accused person have a fair trial, which among other things, includes the right to make full answer and defence. In R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, the Supreme Court of Canada considered whether an accused’s right to a fair trial was compromised by legislation which allowed a child complainant to testify from behind a screen. At paragraph 13, the Court noted:

[65]      In that case, the Court considered whether s. 486 (2.1) of the Criminal Code violated the appellant's right to a fair trial and the principles of fundamental justice under either s. 7 or s. 11 (d) of the Charter. Section 7 of the Charter provides that everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Whereas s. 11(d) provides that, any person charged with an offence has the right to be presumed innocent until proven guilty according to law and a fair and public hearing by an independent and impartial tribunal.

[66]      In Levogiannis at paragraphs 18 and 19, the Court noted the accused asserted his liberty and security interests were at stake and that the legislation in question (s. 486 (2.1) of the Criminal Code) offended the principles of fundamental justice, because he was prevented from facing his accuser because the complainant testified from behind a screen. The appellant/accused also argued that the screening device undermined his right to the full range of cross-examination.

[67]      In addressing those concerns, the Court noted at paragraph19:

[68]      The Court continued its analysis of the issue before it and said the following at paragraphs 22 and 23:

[69]      I appreciate that the Court in Levogiannis was addressing a different set of circumstances and a different criminal charge. However, the comments articulated by the Supreme Court of Canada regarding the principles of fundamental justice and an accused’s right to a fair trial are apposite to the application before me.

[70]      In Mapp-Farouk, the judge noted that the test to be applied was whether the reception of the proposed evidence by videoconference would be contrary to the principles of fundamental justice. However, Dunphy J. also noted that those principles are not focused solely upon the interests of the accused person, but consider the broader question of the fairness of the truth-seeking exercise and require a balancing of both public and private interests. See paragraph 32.

[71]      In Mapp-Farouk, the judge further noted that what might be described as the “convenience of the witness” is a factor that enters into that analysis. Moreover, in the case before the court in Mapp-Farouk, there was the prospect of losing access to the evidence of the witness. That was something the court had to consider in relation to the principles of fundamental justice. See paragraph 32.

[72]      In Stevens, the judge noted it is indisputable that an accused has a right to a fair trial and the right to make full answer and defence. The criminal process must be a fair process. However, the entitlement to procedural fairness does not entitle the accused to the most favourable procedures that could possibly be imagined. The ability of the court to fulfil its truth-finding function is also an important consideration. See paragraph 17.

[73]      It has often been suggested that assessment of credibility depends on observations of physical demeanour during the course of a witness’ testimony. In Turner, Macaulay J. noted that in his experience such observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err. See paragraph 12.

[74]      In Mapp-Farouk, Dunphy J. noted that in s. 714.2, Parliament has not created an exception to be applied to key witnesses or cases where credibility is at issue. He further noted that credibility of witnesses is almost always a factor in trials to some degree. See paragraph 23.

[75]      In Stevens, Jamieson J. noted that the mere fact credibility is in issue does not mean video link evidence is contrary to the principles of fundamental justice – even when the witness is the complainant. In s. 714.1, the court is specifically directed to consider the nature of the witness’ anticipated evidence. However, s. 714.2 is presumptive. It does not require such an assessment. Jamieson J. noted Parliament determined that the unique nature of out-of-country witnesses, who are not compellable, warranted a presumptive provision. It must also have considered that out-of-country witness’ credibility may be an issue. Despite this, Parliament did not require an assessment of the nature of the witness’ anticipated evidence under s. 714.2. See paragraph 27.

[76]      Nevertheless, Jamieson J. acknowledged it could not be said that credibility will never be a consideration under s. 714.2. Where the credibility of the witness who is proposed to give evidence by video is in issue, a court may consider this as a factor when assessing whether a party has established that the reception of out-of-country evidence is contrary to the principles of fundamental justice. However, it is not determinative in and of itself. See paragraph 28.

[77]      In Galandie, Blake PCJ acknowledged that on a s. 714.2 application it is proper to consider, as a fact, the extent to which the credibility of the witness is likely to be an issue at trial. However, that consideration alone is not likely to be determinative. See paragraph 13.

[78]      In R. v. S. D. L., 2017 NSCA 58, MacDonald C. J., in the context of an s. 714.1 application, considered whether an accused person has the constitutional right to have a key witness testify against the accused, face-to-face in the courtroom. He noted that although an accused person has a right to be present for his/her trial and to make full answer and defence, it is not necessary that witnesses testify in the accused’s presence. Nevertheless, MacDonald C.J. acknowledged that an accused’s right to face his or her accuser in the courtroom remains a fundamental aspect of most criminal trials.

[79]      In Turner, Macaulay J. acknowledged that the virtual presence of a witness is not equal to actual presence. However, he noted Parliament must have intended that the court receive such evidence, except where it is demonstrably contrary to the principles of fundamental justice. In enacting s. 714.2, Parliament must have considered the impact of technology generally on the ability to conduct cross-examination and the ability of the court to assess credibility. See paragraph 11.

[80]      In Mapp-Farouk, the judge noted that the physical presence of a witness at trial may be desirable, but it has never been the only means of obtaining evidence for purpose of a criminal trial. The judge also noted that while there are exceptions to the in-person confrontation of witnesses, our system of justice has traditionally considered the ability of an accused person to confront his or her accuser as the gold standard for testing credibility. However, these traditions evolved at a time where the level of available technology offered few, if any, realistic alternatives. See paragraphs 19 and 20.

[81]      Section 714.2 recognizes that the virtual presence of a witness in court, by way of a videoconference, is sufficiently capable of being a substitute for in-person testimony in the case of witnesses located abroad that it is presumed to be acceptable. The only subject to the use of this method is for a party to establish that it is contrary to the principles of fundamental justice on the particular facts of an individual case. See paragraph 21 in Mapp-Farouk.

[82]      In Stevens, the judge noted there is no requirement that witnesses, including complainants, testify in the presence of the accused. See paragraph 18.

[83]      In Sears, Robertson J. noted the principles of fundamental justice require that the accused person have a fair trial. However, a fair trial does not always require that an accused physically confront a witness in person. Moreover, the principles of fundamental justice must reflect the diversity of interests, including the rights of an accused as well as the interests of society. See paragraph 27.

[84]      In Christhurajah, Ehrcke J. noted that s. 714.2 is mandatory. However, he also noted that the mandatory use of audio-visual technology is subject to the two limitations contained in that section (at the time). See paragraph 13.

[85]      In Christhurajah, Ehrcke J. reviewed evidence of a Crown witness, which had already been audio-video recorded. He noted that the technical defects in the quality of an audio-video recording could render doubtful whether it could meaningfully be said that the witness was testifying, “in the virtual presence of the parties and the court”. I note, parenthetically, that requirement was removed by the passage of Bill C-75 in June 2019.

[86]      In Mapp-Farouk, Dunphy J. noted that the regime, which applies to videoconference evidence of an in-country witness, is quite different from that which applies to an out-of-country witness. More importantly, he noted the differences between the two regimes are meaningful and shed light upon the intention of Parliament. He noted that the regime set out in s. 714.1 applies to both audioconference and videoconference testimony of a witness present Canada. That same regime applies essentially to out-of-country witness who is appearing by virtue of audioconference only under s. 714.3.

[87]      By contrast, s. 714.2, “places the shoe on the other foot in the case videoconference evidence proposed to be received from an out-of-country witness”. Dunphy J. made observations that flowed from contrasting and comparing the three provisions (s. 714.1, s. 714.3, and s. 714.2). Those observations are set out in this Ruling at paragraph 60.

[88]      In Stevens, the judge noted that s. 714.2 is presumptive and mandatory. She also noted that the mandatory terms of the section reflect the reality that a potential witness who is out of the country cannot be compelled to return to Canada to testify. See paragraph 12.

[89]      There is a presumption under s. 714.2 that the evidence must be received unless a party satisfies the court that the reception of the evidence is contrary to the principles of fundamental justice. The burden on the party opposing the application is a persuasive or legal burden, not an evidentiary burden. Additionally, the onus is on a balance of probabilities. See Stevens at paragraph 16.

[90]      In Stevens, Jamieson J. also noted that in today’s world of technology taking evidence by video link is becoming increasingly common in both the criminal and civil contexts. It seemed to her that s. 714.2 assumed technology is such that testimony by video link can be easily accomplished. The section came into force in 1999. Advancements in technology since then served only to reinforce the assumption. See paragraph 20. In this regard, I parenthetically note that s. 714.2(1) was amended by Bill C - 75 in 2019. That amendment refers specifically to videoconference evidence. Nevertheless, Jamieson J. noted that issues with technology could pose real problems for meaningful cross-examination. In particular, she noted the situation in the Christhurajah case. See paragraph 24.

[91]      In Sears, Robertson J. commented on the relationship between s. 714.1 and s. 714.2. In Sears, a submission had been made that the factors enumerated in s. 714.1 were relevant in considering an application under s. 714.2. Robertson J. noted, as he read the two sections, they involved distinct and different factors. Applying the criteria of one section to the other could lead to error. However, because the Crown had reviewed the s. 714.1 factors in support of its application and the defence in the Sears case responded referring to those factors, Robertson J. reviewed some of the factors. See paragraph 6.

[92]      Section 714.2 does not specifically require a detailed plan on the date of application. However, Jamieson J. noted that the preferable procedure on a s. 714.2 application is for the Crown to set out its detailed plan for the taking of video evidence in its application materials. See Stevens at paragraph 30 and paragraph 33.

[93]      Starting at paragraph 41 in Stevens, the judge set out the principles that emerged from the case law. She also set out the matters that ought to be considered in developing a plan for presentation of such evidence.

[94]      A videoconference is defined in s. 2 of the Criminal Code as meaning any means of telecommunication that allows the judge and any individual to engage in simultaneous visual and oral communication in a proceeding. Parliament has clearly been satisfied that videoconference technology has advanced to the point that such evidence is at least potentially capable of offering a reasonable and adequate substitute for the more traditional “in person” form of trial testimony. In Mapp-Farouk, Dunphy J. observed that the experience in the courts in conducting virtual proceedings using “Zoom”, and other similar technologies during the course of the pandemic, has gone a long way to convincing the bench, and the bar, that virtual court proceedings are possible, and of a degree of quality and ease of use that would not have been thought possible a few years ago. See paragraph 15.

[95]      Mere speculation that the connection might prove inadequate is not a sufficient ground to satisfy the onus prescribed in s. 714.2. Dunphy J. found there was no reason, at present, to conclude that the technology available could not be made to work at a reasonable level. See Mapp-Farouk at paragraph 17.

[96]      In Mapp-Farouk, the Crown argued there was a serious risk, indeed a probability that the witness Mrs. Mapp would simply not agree to attend trial. This was based on fear she had expressed about travelling to Toronto during the pandemic. Dunphy J. noted he had no hesitation in concluding there was indeed a very real risk Mrs. Mapp’s evidence would be lost if it was not made available by way of videoconference. He noted there were very real uncertainties that arose from closed borders and cancelled flights. Moreover, he also noted that the prospect of up to a month of quarantine on a witness was more than a simple matter of inconvenience, particularly where a reasonable alternative such as videoconference evidence was available. See paragraph 30.

[97]      I begin this section of my analysis by acknowledging, as asserted by the defence in argument, that there is nothing more fundamental to the common-law trial process than having oral evidence given in open court in the presence of the accused and of the trier of fact. However, in making a decision on the application before me, I must apply the common-law as modified by legislative provisions provided by our Parliament. Sections 714.1 and 714.2, in their present form, have been in force since Bill C - 75 was assented to in June 2019.

[98]      The applicable legislative provisions (in particular s. 714.2) mandate that courts can permit evidence to be adduced at trial from a witness by means of technology rather than in person. Since June 2019, the references in s. 714.2(1) to technology that permit the witness to testify in the virtual presence of the parties and the court, were removed. That section now simply provides that, “A court shall receive evidence given by a witness outside of Canada by videoconference ….” subject of course to not being contrary to the principles of fundamental justice.

[99]      Both s. 714.1 and s. 714.2(1) clearly permit the courts to allow witnesses to give evidence from outside the courtroom. In fact, s. 714.2(1) makes it mandatary. As noted by Blake PCJ in Galandie, these legislative provisions operate on the assumption that technology has advanced to a point where the reception of testimony by electronic means is assumed to be easily accomplished at a high quality level.

[100]   One of the points advanced by the defence on Mr. N.’s behalf is that this Court should give careful consideration to the factors enumerated in s. 714.1. The defence submitted that the non-exclusive factors set out in s. 714.1 ought to form part of my judicial analysis under s. 714.2(1) in determining whether having Ms. B. testify by videoconference is contrary to the principles of fundamental justice.

[101]   Judges from different courts, who have considered the application of s. 714. 2, have concluded that section differs significantly from s. 714.1, which deals with witnesses who are in Canada. I agree with that conclusion. While it is possible that in some circumstances the same or similar factors as those set out in s. 714.1 may be considered on a s. 714.2 application, there is no requirement for a judge to invariably do so.

[102]   In fact, in Mapp-Farouk, Dunphy J. appropriately noted that the differences between the two sections are meaningful and shed light upon the intentions of Parliament. Pardu J. in Schertzer, noted in part, that s. 714.1 and s. 714.2 require judges to undertake a balancing exercise having regard to the legal and practical distinctions that exist between compelling witnesses from within Canada and witnesses outside of Canada to attend trial.

[103]   Robertson J. in Sears put it more strongly. He wrote that the two sections involved distinct and different factors. He pointed out that applying the criteria of one section to the other section could lead to error. Although, strictly speaking, these three Ontario decisions are not binding on me, I nevertheless find them persuasive.

[104]   I am satisfied that Parliament created two different regimes for addressing the reception of evidence from witnesses inside Canada and from witnesses outside Canada. The enumerated circumstances in s. 714.1 only apply to the consideration of audioconference and videoconference proposed evidence from a witness in Canada. It is significant that in s. 714.3, which deals with the reception of audioconference evidence from a witness outside Canada, Parliament specifically adopted the test and the “circumstances” set out in s. 714.1 (a) to (g).

[105]   Those same factors do not automatically have to be reviewed or addressed, in whole or in part, when an application is made under s. 714.2. The issue under s. 714.2 is whether, in the circumstances of each specific case, the proposed testimony by videoconference from a witness outside Canada would be contrary to the principles of fundamental justice. Accordingly, I do not accept the defence submission that I should take into account the factors listed in s. 714.1 of the Criminal Code.

[106]   The defence also raised a concern about the efficacy of making credibility assessments of a witness who testifies by videoconference. Mr. N. submitted that the complainant’s evidence would be vigorously contested, as it is key evidence to the Crown’s case. Mr. N. candidly acknowledged there is a difference of opinion regarding the assessment of demeanour as it relates to credibility. However, he asserted that where credibility is concerned a significant witness, such as the complainant in this case, should testify in person and in court. He also submitted, as a starting point that Ms. B. should be called to the stand in person, unless circumstances warrant dispensing with the usual practice.

[107]   Mr. N. also noted that context is a primary factor to consider given the nature of Ms. B.’s anticipated testimony and the surrounding circumstances in which her testimony was provided (I take that to mean her statement to the police). Therefore, the witness should give evidence in person.

[108]   In Turner, Macaulay J. stated that observations of physical demeanour of a witness while testifying are rarely determinative of credibility. In Galandie, Blake PCJ agreed with Macaulay J.’s comments. He noted that although it is proper to consider the extent to which the credibility of the witness in question is likely to be an issue at trial on a s. 714.2 application, “that consideration alone is not likely to be determinative”.

[109]   I acknowledge that under our system of justice, particularly in criminal cases, the traditional way to examine witnesses has been have to witness appear in person to give their evidence, viva voce, in open court. It is noted in several of the cases reviewed on this application that the right of an accused person to confront his accuser at trial is the gold standard for testing credibility. For example, see Mapp-Farouk. However, the case law also establishes that the physical presence of a witness at trial is not the only way that a witness can provide evidence to the court. Moreover, in criminal cases involving children and complainants in sexual assault trials, witnesses have been allowed to testify from behind a screen or virtually from another location in the courthouse.

[110]   More important, however, in this application s. 714.2(1) of the Criminal Code specifically and mandatorily provides that a witness outside Canada shall be able to give evidence by videoconference. Several of the cases reviewed in this Ruling have specifically recognized that s. 714.2 is a recognition by Parliament that the virtual presence of a witness by videoconference is an acceptable substitute for in-person testimony. For example, see Mapp-Farouk, Turner, and Galandie.

[111]   In this application, the defence has not satisfied me that Mr. N. will be denied his ability to make full answer and defence by not being able to challenge the complainant’s evidence in person. In assessing credibility, demeanour is simply one factor to consider. However, even when it is considered, a trial judge must proceed cautiously. Moreover, a trial judge’s ability to assess the quality of a witness’s evidence and to apply the factors outlined in the case law for the assessment of credibility is unlikely to be negatively affected by the fact a complainant is testifying by videoconference.

[112]   My understanding from reading the affidavit prepared by a Crown paralegal in these proceedings is that the witness would be appearing on a large monitor. Accordingly, the trial judge, defence counsel, Mr. N., and the Crown will be able to see Ms. B. while she is testifying. On the information and materials available to me, there is no basis to conclude that Mr. N. will be denied the right to a full and fair cross-examination of Ms. B. or the right to test the credibility, reliability, and quality of her evidence.

[113]   One of the factors raised by the Crown for receiving evidence from Ms. B. by videoconference is the current Covid pandemic that is affecting British Columbia and the world. The clear implication of the Crown’s argument is that Ms. B. would be placed at risk if she attended the hearing in person. Moreover, she would be in quarantine for a total period of 28 days to comply with both Canada’s and New Zealand’s Covid safety precautions.

[114]   The Covid pandemic has created a global emergency that is ongoing and now in its third wave in British Columbia. There is some evidence in this regard in the affidavit and attached exhibits filed by the Crown in this application. Moreover, in the circumstances, it is appropriate to take judicial notice (see R. v. Find, 2001 SCC 32) that:

[115]   In Mapp-Farouk, Dunphy J. noted that apart from the very real uncertainties relating to closed borders and cancelled flights, the prospect of up to a month in quarantine on a witness was more than a simple matter of inconvenience, especially where a reasonable alternative such as videoconference was available. In that case, of course, there was the added factor there was a very real risk that Ms. Mapp’s evidence would be lost if she could not testify by videoconference. See paragraph 30.

[116]   In Sears, Robertson J. noted that if the complainant in that case attended to testify in person, he would effectively be under “house arrest” for two weeks before trial. Robertson J. acknowledged that witnesses must accept some inconvenience but the situation (i.e. Covid and the resultant restrictions) went beyond the norm.

[117]   In the instant case, if Ms. B. were asked to attend in person, she would have to leave a location, which according to her has had very little exposure to the Covid pandemic. She would need to travel many hours on a flight from New Zealand to British Columbia and back again. She would need to quarantine for a total of 28 days at government-authorized locations.

[118]   I am satisfied that Ms. B. does not want to travel to Canada during this Covid pandemic. However, she has said she would do so if it were absolutely necessary. In the current circumstances, it is possible Ms. B. might put her health at risk by contracting a Covid virus if she travelled from New Zealand to Canada. Several cases (Stevens and Mapp-Farouk come to mind) have noted that the principles of fundamental justice are not only focused on the interests of the accused, but also on broader questions of the fairness of the truth-seeking exercise which requires a balancing of both public and private interests.

[119]   In all of the circumstances, it is appropriate to consider current Covid-related risks. I appreciate that steps have been taken at various Provincial Court courthouses in B.C., including in Vancouver, to mitigate the risk of Covid transmission. However, in this case, the concerns identified by the Crown are not with the court facilities but with the risks, cost, inconvenience and uncertainties that arise because of the international travel (by air) and the related requirements Ms. B. would need to undergo to get to Vancouver.

[120]   On this application, the defence offered to waive delay, if it became necessary, so that the complainant could safely attend in person at a future date when the Covid pandemic is under control. At first blush, that option presented an easy compromise to the issue between the parties. However, on reflection, I considered the exhortation of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, that the culture of delay and complacency in pursuing matters to trial is a factor that all justice system participants, including judges, ought to avoid. The Court suggested that the judiciary has an important role in managing delay.

[121]   In Jordan, the majority of the Court noted at paragraphs 1 to 3:

[122]   In Mapp-Farouk, the judge noted that backlogs growing within the court system because of the pandemic are already considerable and will require a long time to be worked through. Additionally, adjournments of matters that are ready for trial run the risk not only of losing available court time (due to the adjournment) but also of adding to the backlog. See paragraph 31.

[123]   I have concluded in this case that adjourning this matter until the Covid-19 situation improves is not appropriate having regard to all of the circumstances. First, none of us has a crystal ball that will tell us when Covid-19 will be sufficiently under control. Second, as the old judicial adage goes – justice delayed is justice denied. The alleged offence in this case occurred on August 25, 2018. The Information was sworn on September 26, 2019. We are now in April/May 2021. I was not given any information about the timeline for setting this matter for trial. It is possible that the Covid-19 pandemic itself has contributed to the time it has taken to set this matter for trial. However, an almost two-year delay from the time the Information was sworn is considerable, no matter the cause. Third, Parliament has provided a tool, and a mandatory one at that, which alleviates the need for delaying the trial further.

[124]   In the affidavit material filed by the Crown, the affiant reviewed the steps taken to arrange for a suitable venue from which to provide videoconference evidence. This included, if necessary, consideration of who might be available to monitor the videoconference proceedings.

[125]   The defence argued there might be questions regarding where the evidence should be given and who has access to the witness during her testimony. In particular, the defence expressed some concerns about the suggestion that the videoconference could take place from a room at the Canterbury Police District in the city of Christchurch and that police services appear to have volunteered to assign a liaison officer to assist in managing the logistics.

[126]   In Stevens, Jamieson J. pointed out that s. 714.2 does not specifically require a detailed plan to be made available on the date of application. Moreover, in Mapp-Farouk the judge said mere speculation that the connection might prove inadequate is not a sufficient ground to satisfy the onus on the objecting party.

[127]   I am satisfied that an application under s. 714.2(1) to have a witness from outside Canada testify by videoconference must be granted, unless it is established that to do so would be contrary to the principles of fundamental justice. The defence on this application has submitted that allowing Ms. B. to testify by videoconference would be contrary to the principles of fundamental justice. In particular, the defence raised issues about the assessment of credibility, the seriousness of the offence, the consequences that could be visited on the accused if convicted, and the adequacy of the technology and location. The defence also provided an alternative, namely, to adjourn the trial until the Covid-19 pandemic is brought under control. In doing so, it offered to waive delay.

[128]   After considering the applicable law and the merits of Mr. N.’s submissions, I find Mr. N. has not discharged the onus under s. 714.2(1) to establish that it would be contrary to the principles of fundamental justice to allow the complainant to give her testimony by videoconference. I note that considerations regarding the Covid-19 pandemic and the risks related to it are one of the factors I considered in reaching my conclusion. However, that was not the only factor. Section 714.2(1) is a mandatory section. To dismiss the Crown’s application, I would need to find that taking evidence by videoconference in this case would be contrary to the principles of fundamental justice. However, the points raised by Mr. N., in the circumstances of this case, do not amount to a breach/denial of the principles of fundamental justice.

[129]   I will now comment on procedural/technical issues. In this application, there was affidavit evidence of the steps taken by the Crown to secure a suitable venue from which Ms. B. could testify remotely. The defence raised an issue about the complainant testifying from a police station. I asked the parties to address this again, if necessary, once they received this Ruling on the substantive merits of the Crown’s application. However, I wish to make it clear there is no obligation on Mr. N. to come up with a plan. However, it may be possible for the parties to co-operate regarding suitable arrangements in this regard.

[130]   The Crown needs to ensure that appropriate steps are taken for this Court to receive Ms. B.’s testimony by videoconference. This includes but is not limited to:

[131]   I retain the option to review how well the videoconference is working during the course of the trial. If issues arise in that respect, I will hear submissions at trial. Additionally, if there are difficulties with implementing the plan for the videoconference, including problems with the facility arrangements or with the technology and if there is a possibility the trial may not be able to proceed as scheduled, the court must be advised. I am the designated trial judge and if any difficulties arise that affect the trial dates the court should be advised forthwith. Additionally, if other pre-trial applications are necessary, the court should also be advised as soon as possible.