IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         This was an application by Mr. Peters, who is counsel for Ms. Kanahus Manuel, also known as Amanda Soper, to transfer the file from Clearwater to Kamloops and to conduct the trial by MS Teams. Mr. Peters cited the cancellation of his flight, the risks of travel on BC Highways at this time of year, the additional costs of travelling from Kelowna where his flight was diverted, the dangers of the COVID-19 pandemic, and the right of his client to counsel of choice and trial in a timely fashion. One of these factors alone would not likely compel me to make such an order, but the constellation of them demands that I do so. The other counsel and accused took no position on the applications and agreed that if the trial could not be conducted by a hybrid of MS Teams and in person, that it could be conducted by MS Teams entirely. I have allowed both orders but am required to state my reasons for the video appearance on the record.

[2]         The pandemic has created challenging circumstances in obvious but also unexpected ways. The obvious is the concern over the possible exposure not only of participants to infection inherent in such gatherings, but in possibly bringing infection from one community to another. The less obvious are the challenges of keeping matters moving forward; imposing new technology on old structures; the expected and unexpected consequences of the economics of a pandemic; and the impact on various communities when they come together for trials. This all creates possible frictions with trial fairness and the Charter rights of the accused.

[3]         The trial was scheduled for five days in the Clearwater circuit court commencing February 22, 2021. The circuit court is held in the District hall. It becomes a large courtroom and could accommodate the number of people who would be in attendance with COVID-19 protocols in place. The challenges of the courtroom in Clearwater are centred around technology rather than space. There is no ability to conduct a hybrid technology trial in that location.

[4]         One of the most compelling factors in my decision is the COVID-19 pandemic. According to the BC Centre for Disease Control, an authoritative public organization whose findings and orders may be the subject of judicial notice, the number of cases between January 2020 and 2021 in the Interior, which includes Kamloops, was 774. The number for the North Thompson in that same period, which includes Clearwater and Blue River, was 8. There were thousands more from the Coastal and Fraser Health Region combined.

[5]         The province has now extended the state of emergency to March 2, 2021. Public health orders are now extended indefinitely with strongly worded recommendations against non-essential travel, particularly back and forth to and from the Lower Mainland.

[6]         Air Canada cancelled all of its flights between Kamloops and Vancouver as a result of the loss of passengers arising from the pandemic travel restrictions and recommendations. No other airline was offering direct flights at the time of the application.

[7]         I note that Pacific Airways recently announced after this application that it would have one flight in and one flight out of Kamloops daily but its current schedule does not accommodate court sitting times or the days of this trial. Flights are not the only challenge, however.

[8]         Winter travel has been atrocious this year. Several times, there have been closures of the routes between Vancouver and Kamloops due to weather and weather related accidents. Even the route between Kelowna airport and Kamloops has seen tragedy already in 2021. Driving is not a particularly safe option.

[9]         MS Teams could accommodate a hybrid trial with all participants attending a courtroom with COVID protocols and only Mr. Peters attending by MS Teams. However, both of the accused, all three counsel, the clerk, the witness box and I would need to have laptops capable of running the MS Teams video for the full day each day. There are not sufficient ports in the Kamloops courtrooms for all these internet cables, but we could get splitters enough for all laptops. We do not have adequate bandwidth, however, to support that load. We do not have wireless access in the courtrooms and the wireless access in the building is not adequate to the task, either.

[10]      Section 650 requires the accused be present in court during the whole of the trial. Video appearances are only permitted under that section by agreement of the prosecutor and accused but not when evidence of a witness is being taken. That renders the section largely unhelpful in modern circumstances except for preliminary applications, Voir Dire arguments, Charter arguments and the like. However, under section 650(2), the court may permit the accused to be out of court during the whole or any part of the trial on conditions the court considers proper.

[11]      This section must be read with sections 714.1, 715.23, 715.25 and 715.26 in mind. The purpose of this part of the Code is to permit participants, including accused people, to attend court remotely. It is essential we have this option in this day and age given the distance some of our communities have from brick and mortar courthouses; the challenges of winter driving even for those from this area; the ease with which COVID-19 seems to transmit, particularly with the variants now being present; the risks of a delay in trial if a person’s symptoms make them inadmissible to a brick and mortar courthouse; and the costs to the participants that are attendant on all of this. Overarching is the right of these two accused people to a fair trial, their counsel of choice, and the right to make full answer and defence. In this case those rights of the accused align with the principles afforded by a trial conducted by MS Teams.

[12]      Section 714.1 permits witnesses to attend remotely if appropriate in the circumstances, given the location and personal circumstances of the witness, the costs for the witness to appear personally, the nature of the witness’ anticipated evidence, the suitability of the location where the witness will appear, the right of the accused to a fair and public hearing, and the nature and seriousness of the offence.

[13]      The witnesses in this case are the complainants and the attending police officers. There is video footage as well which crown will have to play through the shared feature on MS Teams. All of the witnesses have the ability to appear in person in Clearwater or Kamloops, or by video either from the Blue River area or in Kamloops at the crown office. The issue of costs for them to attend was not addressed since they are prepared to appear in person or by technology. The issue is entirely linked to the lack of ability for the courts to provide a hybrid trial.

[14]      Section 715.23 permits the court to order that an accused person appear by audio or video conference if the court determines it would be appropriate given the five factors of the location and personal circumstances of the accused, the costs for the accused to appear personally, the suitability of the location where the accused will appear, the right of the accused to a fair and public hearing, and the nature and seriousness of the offence. The court always maintains the jurisdiction to end the technological appearance if appropriate. It is not so much the ability of the accused to attend by video as it is the inability of her counsel of choice to attend in these circumstances.

[15]      Similarly, the court may permit remote attendance of counsel under section 715.25 on considering those same five factors. Finally, a judge may also, after a consideration of those same factors, appear remotely pursuant to section 715.26.

[16]      All of the accused, witnesses and lawyers will avoid the COVID and winter driving risks of travelling whether from Vancouver, Kamloops, Kelowna or Blue River, except where the Crown requires the witnesses to attend if she requires them to be available to her or if their internet is not adequate to support video appearances. If the public or press wish to attend this trial, they may obtain the login details from the registry to enable them to do so.

[17]      I therefore find that the combination of factors make it appropriate in the circumstances for this trial to be conducted by MS Teams with everyone attending court electronically. If at any stage of the proceedings the technology does not afford a fair and public hearing, any participant may raise that concern and we will revisit how and when the trial may continue.