====== R. c. Trottier, 2021 BCSC 2697 ======

Original Source: [[https://www.bccourts.ca/jdb-txt/sc/21/26/2021BCSC2697.htm|BC Supreme Court]]

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**SUPREME COURT OF BRITISH COLUMBIA**

Citation: //R. c. Trottier//,
2021 BCSC 2697

Date: 20210723 \\
Docket: X082060 \\
Registry: New Westminster

**Regina**

v.

**Mikael Trottier**

Before The Honourable G.R.J. Gaul

**Oral Reasons for Judgment on s. 714.1 Application for Testimony by Videoconference**

Counsel for the Crown: J.B. Deschamps

Counsel for the Accused: G. Garih

Place and date of hearing: New Westminster, BC; July 16, 2021

Place and date of judgment: New Westminster, BC; July 23, 2021

[1] **THE COURT**: The accused Mikael Trottier is charged with sexual assault contrary to s. 271 of the //Criminal Code//.

[2] A trial by jury is scheduled to begin on Monday August 23, 2021 in New Westminster, British Columbia.

[3] By way of notice of application filed July 9, 2021, the Crown seeks an order allowing Simon Fournier, a witness, to testify remotely by videoconference.

[4] This application is based on s. 714.1 of the //Code// which reads:

<blockquote>714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the witness; \\
(b) the costs that would be incurred if the witness were to appear personally; \\
%%(c)%% the nature of the witness' anticipated evidence; \\
(d) the suitability of the location from where the witness will give evidence; \\
(e) the accused's right to a fair and public hearing; \\
(f) the nature and seriousness of the offence; and \\
(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.(([[https://laws-lois.justice.gc.ca/eng/acts/c-46/20210506/P1TT3xt3.html|Criminal Code, version from 2021-05-06 to 2021-08-26]]))</blockquote>

[5] In support of its position, the Crown counsel, Mr. Deschamps, notes that even with the rollout of the vaccine and the lower infection rate in the country, the COVID-19 pandemic continues to affect the world and there is a real risk of a fourth wave occurring in Canada. For this reason, the Crown argues that public health should be a primary consideration in this application.

[6] Mr. Deschamps emphasizes that Mr. Fournier is an important eyewitness for the Crown who was with the accused and the complainant on the night of the events in question. Additionally, the Crown submits that Mr. Fournier will give testimony on the conversation he and the accused had that night, during which Mr. Fournier told the accused to stop making gestures towards the complainant. According to the Crown, this conversation between the accused and Mr. Fournier is important evidence.

[7] The accused's counsel, Mr. Garih, highlights the conventional practice that a witness should testify in the courtroom to allow the court to hear the testimony and observe how the witness behaves at the witness stand, especially during cross-interrogation.

[8] Furthermore, the accused submits that the Crown's evidence on this application is manifestly insufficient to support the order sought. In this regard, Mr. Garih argues that Mr. Fournier does not claim to be in poor health such that he is more susceptible to contracting the virus and that the Crown's alleged consequences of a journey to Vancouver are vague and insufficient.

[9] The accused accepts that there would be considerable expenses incurred if Mr. Fournier has to travel to New Westminster for the trial. Additionally, Mr. Fournier may be subject to quarantine which would lead to further consequences for him and his employment when he returns to Quebec. However, the accused argues that the seriousness of the offence and the importance of the trial weigh in his favour.

[10] In para. 32 of //R. v. S.D.L.//, 2017 NSCA 58, the Court of Appeal of Nova Scotia suggests a set of guidelines applicable to s. 714.1 applications, reproduced below:

<blockquote>[32] With this background, I would propose the following guiding principles for Nova Scotia trial judges, when considering s. 714.1 applications:
  * 1. As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice.
  * 2. 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.
  * 3. When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.
  * 4. The more significant or complex the proposed video link evidence, the more guarded the court should be.
  * 5. When credibility will not be an issue, the test should be on a balance of convenience.
  * 6. Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross examination be required, that could be done by video link.
  * 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.
  * 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.
</blockquote>

[11] These guidelines have been followed by courts of this province and in this regard I cite: //R. v. Zamora//, 2020 BCSC 1259 and //R. v. Barrett//, 2021 BCSC 615.

[12] In //Code Criminel annoté Cournoyer-Ouimet 2021//, Éditions Yvon Blais, the Honourable Justice Guy Cournoyer of the Superior Court of Quebec very helpfully summarized the principles set out in para. 32 of //S.D.L.// in French. Under the section "jurisprudence" at pages 1587 and 1588, Cournoyer J. notes:
<blockquote>Lorsque le tribunal considère une demande présentée en vertu de l'art. 714.1, il doit tenir compte des principes directeurs suivants:

1) Le témoignage par retransmission vidéo devrait être permis tant et aussi longtemps qu'il ne compromet pas l'équité du procès ou ne viole pas le principe de la publicité des débats judiciaires;

2) Lorsqu'il y a un problème de crédibilité, le tribunal devrait autoriser le témoignage en vertu de l'art. 714.1 que s’il y a des circonstances exceptionnelles qui touchent le témoin proposé. Il ne suffit pas qu'il s'agisse de simples inconvénients;

3) Lorsque la crédibilité du plaignant est en jeu, les circonstances exceptionnelles requises doivent être d'autant plus convaincantes;

4) Plus la preuve à être présentée par retransmissions vidéo est importante et complexe, plus le tribunal devrait se méfier;

5) Lorsque la crédibilité n'est pas remise en question, le test devrait se faire selon la balance des inconvénients;

6) À moins de circonstances inhabituelles, une preuve au soutien de la demande devrait être présentée, généralement sous forme d'un affidavit. S'il y a lieu de contre-interroger, cela peut se faire par retransmission vidéo;

7) Lorsque la déposition à distance est autorisée, le tribunal devrait insister pour que des tests soient effectués à l'avance et que des mesures rigoureuses de contrôle de la qualité qui devraient être surveillées tout au long du processus soient mises en place. Si le système n'est pas satisfaisant, la décision d'autoriser un tel procédé devrait faire l'objet d'une reconsidération;

8) Lorsque possible, le témoignage capté sur vidéo devrait l'être dans l'enceinte d'une salle d'audience.
</blockquote>

[13] I adopt Cournoyer J.'s views and apply them here.

[14] I accept that more evidence from the Crown would have been preferable. However, I reject the defence's submission that the existing filed evidence is insufficient to allow the Crown's application.

[15] With respect, I am of the view that the factors articulated in s. 714.1 and refined in jurisprudence support an order allowing Mr. Fournier to testify by videoconference.

[16] Mr. Fournier lives with his mother in Notre-Dame-du-Mont-Carmel in Quebec. It is a small town located 25 minutes away from Trois-Rivières by car. The evidence shows that Mr. Fournier's mother runs a daycare in her home with six children at and below four years old. I accept that a trip to Vancouver would expose Mr. Fournier to a real risk of contracting the virus. More importantly, this trip would expose Mrs. Fournier and the children in the daycare to the same dangerous risk.

[17] Travelling by airplane to testify at trial would potentially impact Mr. Fournier's employment. He has worked for Béton Provincial in Trois-Rivières for a year. According to him, he is unable to leave work due to a shortage of personnel and because he may be subject to quarantine when he returns home. Even if I accept the accused's argument that this last reason isn't very good and does not support the Crown's application, in my view, when considered in its entirety, Mr. Fournier's personal situation militates in favour of the order sought.

[18] The Crown estimates that Mr. Fournier's trip would cost around $2,150. Given the nature and seriousness of the alleged offence and the fact that Mr. Fournier is a key witness for the Crown, I find that the costs of the travel are not a determinative factor in this case.

[19] On the other hand, the nature of Mr. Fournier's testimony is without doubt crucial. The Crown expects that during his testimony, he will tell the jury what he saw on the night in question, including the accused's gestures towards the complainant. He will also describe what the accused said to him about the complainant. This testimony is undoubtedly key for the Crown but there is no indication that there is an issue with Mr. Fournier's credibility or that the accused will question the same. In my opinion, the fact that Mr. Fournier will not be in the courtroom and that he will testify by videoconference does not prejudice the accused and in particular will not affect his ability to carry a complete and vigorous cross-examination. I come to this conclusion even in consideration of the nature and seriousness of the offence and the accused's right to a fair and public trial.

[20] The Crown proposes that Mr. Fournier testify from a room in the house where he resides. Additionally, Mr. Deschamps has indicated that he tested the MS Teams videoconferencing software with Mr. Fournier and that the results of the test were excellent, in that the connection was clear and there were no problems with neither his microphone nor his camera. I accept Mr. Deschamp's observations. In light of Mr. Fournier's circumstances and the national public health crisis caused by the pandemic, I accept that the proposed place and manner of Mr. Fournier's testimony are sufficient to ensure a just and fair trial.

[21] That being said, and with the remarks of the Court of Appeal of Nova Scotia in //S.D.L.// in mind, I emphasize that I will be vigilant during Mr. Fournier's testimony to assure that the audio and video quality are sufficient. If, for some reason, the videoconferencing software is unable to maintain sufficient audio and video quality, I would be ready to reconsider the order and declare that Mr. Fournier must testify in person before the jury.

**Conclusion**

[22] In view of the specific circumstances of this case, including:
  * a) the extraordinary state of the pandemic which continues to have massive repercussions on our communities;
  * b) the public interest that this trial be conducted in conformance with the law; and
  * c) the necessity of protecting the accused's rights and the integrity of the justice system;
I am satisfied that the order sought should be granted.

[23] For these reasons, I allow the Crown's application. Under s. 714.1, I authorize the Crown to call Mr. Fournier as a witness by videoconference.

"G.R.J. Gaul, J."