Supreme Court

R. v. Wilson No. 1, 2015 NWTSC 29	S-1-CR-2014-000060



IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:


HER MAJESTY THE QUEEN
- vs. - JAMES WILSON



_________________________________________________________ Transcript of the Ruling on Applications for Testimonial Aids and Use of Video-recorded Interview by The Honourable Justice L. A. Charbonneau, at Inuvik in the Northwest Territories, on 28th May A.D., 2015.
_________________________________________________________



APPEARANCES:

Ms. A. Piché:	Counsel for the Crown

Mr. C. Davison:	Counsel for the Accused



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Charge under s. 271, 145(1)(a) Criminal Code of Canada

Ban on publication of the Complainant/Witness
Pursuant to Section 486.4 of the Criminal Code





A.C.E. Reporting Services Inc.

1	THE COURT:	I am going to now give my

2	ruling on a number of pretrial applications that

3	the Crown made a few weeks ago.	I gave my

4	decisions on those applications which I will term

5	in a general way Applications for Testimonial

6	Aids and Special Accommodations for the Evidence

7	of the complainant.	I gave counsel the bottom

8	line decision a few weeks ago so you could

9	prepare accordingly and said I would put my

10	Reasons on the record later, and now these are

11	those Reasons I am about to give.

12	When the pretrial motions were heard counsel

13	agreed to call the evidence relating to all the

14	pretrial applications as part of one large voir

15	dire.	There was a lot of overlap in the evidence

16	that applied to the various motions.	Most of the

17	evidence was relevant to more than one of the

18	motions.	There were two broad categories of

19	applications.	The first, which I am dealing with

20	now, were applications for testimonial aids and

21	special accommodations that the Crown was asking

22	be used for the testimony of the complainant.

23	The second group were applications seeking

24	evidentiary rulings.	All of these applications

25	stem from personal characteristics of the

26	complainant and the impact that they might have

27	on her ability to testify.

1	First I will address my understanding of the

2	evidence that was presented at the voir dire

3	about the complainant's abilities.

4	The complainant is an adult woman in her

5	fifties.	It is undisputed and apparent on the

6	evidence presented at the voir dire that she

7	suffers from a serious speech impediment.	It can

8	be very difficult to understand her when she

9	speaks.	The voir dire evidence also establishes

10	that there are issues with her comprehension of

11	certain words or sentences.	A.K. is the

12	complainant's sister and grew up with her.	She

13	testified that the complainant went to school for

14	a period of time when they were young but did not

15	finish school.	She now lives with her brother

16	and some of her daughters.	She cannot read or

17	write except for writing her own name.	She is

18	unable to count and needs help dealing with

19	things that involve money, like going to the

20	store.	A.K. also testified that the complainant

21	sometimes does not understand big words so that

22	when A.K. is speaking with her, sometimes A.K.

23	has to use smaller simpler words so that the

24	complainant will understand.	A.K. testified that

25	when the complainant does not understand what

26	someone is telling her she makes that known.	I

27	take it from A.K.'s evidence that generally

1	speaking she is able to communicate with her

2	sister except that sometimes she may have to

3	repeat something using simpler words so that she

4	will understand.	A.K. also testified that the

5	complainant can look after herself in terms of

6	feeding herself, taking care of her personal

7	needs, getting dressed and things of that nature.

8	A transcript of the complainant's testimony

9	at the preliminary hearing was filed at the voir

10	dire.	It illustrates some of the challenges in

11	adducing evidence from her, although it also

12	shows that she is capable of answering questions.

13	Another exhibit filed was a note from the Court

14	Reporter who produced the preliminary hearing

15	transcript which confirms that making out what

16	the complainant was saying could be difficult at

17	times.	The Crown also filed a video-recording

18	interview of the complainant by a police officer.

19	This interview was done as part of the

20	investigation.	The complainant's daughter R. was

21	present during the interview and at several

22	points during the interview assists the officer

23	in helping him understand what her mother is

24	saying in answer to questions.	All this evidence

25	assists in understanding more about the

26	complainant, her ability to communicate and some

27	of the challenges in that regard, and that

1	evidence is key in assessing the various

2	applications before the court.

3	The Crown applied to have the complainant

4	testify with a support person seated next to her,

5	with the use of a screen to block her view of the

6	accused, and with the public excluded from the

7	courtroom.	Defence did not oppose the

8	application for a support person but opposed the

9	other two.	Crown also sought to have the

10	video-recorded interview of the complainant

11	entered into evidence pursuant to Section 715.2

12	of the Code.	That application was opposed by

13	Defence.

14	Overall, the basis for the Defense's

15	objections to what the Crown seeks is that there

16	is an insufficient evidentiary basis to engage

17	the provisions that permit the use of these

18	testimonial aids and special accommodations.	The

19	Defence's submissions in relation to the

20	interpretation of Section 715.2 overlap with its

21	submissions regarding the request for use of

22	other testimonial aids.	The Defense's position

23	is grounded in the submission that the special

24	considerations recognized by the law in dealing

25	with evidence of children are not necessarily

26	engaged when dealing with witnesses who have a

27	physical or mental disability.

1	Defence acknowledges that when it comes to

2	children the law now recognizes and assumes a

3	certain number of things about their

4	vulnerabilities, their ability to recollect and

5	recount events, and various other things that the

6	testimonial aids and accommodations are designed

7	to alleviate.

8	But Defence argues that when dealing with

9	witnesses with physical or mental disabilities,

10	there needs to be an evidentiary basis that

11	establishes the need to use these special

12	procedures and that establishes a link between

13	the witness's ability to communicate evidence and

14	the testimonial aid or special measure that the

15	Crown is seeking to use for the evidence of that

16	witness.	Defence argues that some of the

17	assumptions that the law makes about children

18	cannot be simply applied to witnesses with

19	disabilities because there is too broad a

20	spectrum of disabilities that can exist which in

21	turn will have a varying impact on the witness's

22	ability to communicate evidence and on the

23	assistance that testimonial aids can provide.

24	So specifically in this case, Defence's

25	position is that the evidence of A.K. and the

26	other evidence adduced on the voir dire about the

27	complainant's circumstances does not lay a

1	sufficient evidentiary foundation for the court

2	to be satisfied that those circumstances place

3	her in the category of persons that provisions

4	like Section 715.2 and Paragraph 486.2(2) apply

5	to.

6	1.	Application to use a screen during the

7	complainant's evidence.

8	I will deal first with the screen.	The

9	application for use of a screen is governed by

10	Section 486.2 of the Criminal Code.	The

11	provision contemplates two types of situations

12	and prescribes a different test to be applied in

13	each.	Paragraph 1 applies to a witness who is

14	under the age of 18 or a witness who is able to

15	communicate evidence but may have difficulty

16	doing so by reason of a mental or physical

17	disability.	In those situations the provision

18	states that the judge shall order that the

19	witness testify behind a screen or other device

20	that would allow the witness not to see the

21	accused unless the judge is of the opinion that

22	the order would interfere with the proper

23	administration of justice.

24	Paragraph 2 applies in all other cases.

25	That provision states that the judge may order

26	that the witness testify behind a screen or other

27	device that would allow the witness not to see

1	the accused if the judge is of the opinion that

2	the order is necessary to obtain a full and

3	candid account from the witness of the acts

4	complained of.	In other words, under that

5	paragraph the Crown has the onus of establishing

6	that the use of the testimonial aid is necessary.

7	As I already alluded to, Defence

8	acknowledges that even though witnesses under

9	18 years old and witnesses who have physical or

10	mental disabilities are both referred to in

11	Paragraph 486.2(1), that does not mean that the

12	protections that Parliament intended for those

13	two categories of witnesses necessarily operate

14	in the same way.

15	My conclusion is that Section 486.2 draws a

16	difference between two categories of witnesses:

17	Those captured by paragraph 1,

18	a witness who is under the age of
eighteen years or a witness who has a mental
19	or physical disability,

20	and the others who are captured by paragraph 2.

21	In deciding whether the application for the

22	screen is governed by paragraphs 1 or 2,

23	therefore the only question is whether the

24	evidence satisfies me that the complainant is

25	able to communicate evidence but may have

26	difficulty doing so by reason of a mental or

27	physical disability.

1	I agree with Defence counsel that the

2	evidence does not establish the exact nature and

3	extent of Ms. K.'s cognitive issues.	The

4	evidence establishes that she is illiterate and

5	that she cannot work with numbers.	Those things,

6	of course, are not the same as having a mental

7	disability.	The evidence also shows that she

8	struggles at times in answering questions.	But

9	it falls short of establishing to what extent her

10	cognitive abilities are impaired or for what

11	reason.

12	But apart from any ambiguity in the evidence

13	about the level of cognitive difficulties that

14	the complainant may experience, the evidence does

15	clearly establish that she has a severe speech

16	impediment.	Based on what I saw and heard on the

17	video-recorded interview and in the transcript of

18	her preliminary hearing evidence I am of the view

19	that this impediment can be characterized as a

20	physical disability, and that it does cause her

21	difficulty in communicating her evidence.

22	Given this I conclude that the application

23	for use of a screen during her evidence is

24	governed by Paragraph 486.1(1) of the Code.

25	When that provision is engaged it states

26	that the court shall grant the application for

27	use of the screen unless it is of the opinion

1	that the order would interfere with the proper

2	administration of justice.

3	The Defence argues that because the screen

4	is usually positioned near the accused and in any

5	event must be positioned in a way to block the

6	witness's view of the accused, this can lead the

7	jury to draw adverse inferences against the

8	accused, suggesting, for example, that he must be

9	a bad person or he must be guilty if the

10	complainant has to have her view of him blocked.

11	If that alone was enough to prevent the use

12	of the screen it would mean that a screen could

13	never be used in a jury trial for any witness.	I

14	cannot accept that this was Parliament's

15	intention.	In my view the potential prejudice

16	that Defence counsel refers to and is concerned

17	about can be cured with an adequate instruction

18	to the jury both at the time the testimony is

19	heard and in the final instruction to the jury.

20	Although not determinative, and I do not have the

21	exact statistics about this, the court is aware

22	that there have been cases in this jurisdiction

23	where screens have been used in jury trials that

24	resulted in acquittals.	This tends to suggest

25	that the use of the device, if the proper

26	instructions are given, does not have the effect

27	of overwhelming a jury or has an overly

1	prejudicial impact on the proceedings.	For those

2	reasons I granted the application for use of the

3	screen.

4	2.	Application to Adduce Video-Recorded

5	Interview of the Complainant.

6	Turning now to the application to adduce the

7	video-recorded interview, that application is

8	governed by Section 715.2 of the Code which reads

9	as follows:

10	In any proceeding against an accused in which a victim or other witness is able to
11	communicate evidence but may have difficulty doing so by reason of a mental or physical
12	disability, a video recording made within a
reasonable time after the alleged offence,
13	in which the victim or witness describes the
acts complained of, is admissible in
14	evidence if the victim or witness, while testifying, adopts the contents of the video
15	recording, unless the presiding judge or justice is of the opinion that admission of
16	the video recording in evidence would interfere with the proper administration of
17	justice.

18	The complainant was not called at the voir dire.

19	Essentially the Crown sought what I would call a

20	ruling in principle to the effect that if she did

21	adopt the video-recording interview at trial,

22	then it would make this admissible.	In a sense

23	the Crown sought a ruling that all the other

24	prerequisites of the provision were met and that

25	if the adoption did take place then the recording

26	would be admissible.

27	Section 715.1 is worded in a very similar

1	way as Section 715.2 but applies to witnesses

2	under the age of 18.	There is much more

3	jurisprudence dealing with Section 715.1 than

4	there is dealing with Section 715.2.	The Crown

5	argues that these are companion provisions and

6	that the jurisprudence dealing with 715.1 should

7	inform the interpretation of 715.2.	That was the

8	conclusion reached by the Ontario Court of

9	Justice in R. v. Osborne, 2011 ONSC 4289 in

10	particular at paragraph 39.

11	As I said already, the Defence's position as

12	to the interpretation of Section 715.2 overlaps

13	in some respects with its position about the use

14	of other testimonial aids.	Defence argues that

15	despite the similarity in wording, the manner in

16	which Section 715.1 has been interpreted does not

17	necessarily inform what the interpretation of

18	Section 715.2 should be because not all the

19	considerations that apply to young witnesses

20	necessarily apply to a witness who suffers from

21	one form of disability or another.	Defence notes

22	that no expert evidence was adduced at the voir

23	dire.	There is no evidence about what level of

24	cognitive difficulties the complainant may have,

25	how those difficulties impact on her ability to

26	recount events or about how having to testify in

27	the usual way about those events could be

1	traumatic or detrimental to her.

2	As I said, the wording of Section 715.1 and

3	Section 715.2 is very similar.	The only

4	difference is in the description of the type of

5	witness each provision applies to.	715.1 applies

6	to,

7	a victim or other witness who is under the age of eighteen at the time the offence is
8	alleged to have been committed,

9	whereas 715.2 applies to,

10	a victim or other witness who is able to communicate evidence but may have difficulty
11	doing so by reason of a mental or physical disability.
12

13	I agree with the reasoning in Osborne that

14	the similarity of language is indicative of that

15	Parliament intended these two categories of

16	witnesses to be treated similarly for the

17	purposes of using the video-recorded statement to

18	assist in introducing that witness's testimony.

19	Parliament decided to adopt measures to

20	facilitate adducing evidence from certain

21	categories of witnesses by allowing the use of a

22	recorded interview, provided that certain

23	conditions are met.	This is a statutory

24	exception to the usual prohibition for adducing

25	out-of-court statements at a trial.	Its effect

26	is to avoid the witness having to tell their

27	story in court as long as they adopt what they

1	have said in the earlier interview.	It serves as

2	a substitute in whole or in part for their

3	testimony in chief.	The thinking behind this has

4	to be that this will assist the witness.	In a

5	sense there is a legislated assumption that it

6	will assist the witness to proceed in this way.

7	What the provision requires on its face, and

8	here I am speaking of Section 715.2, is a link

9	between the disability, whether it is mental or

10	physical, and the ability of the witness to

11	communicate evidence.	The provision applies,

12	when a witness is able to communicate evidence but may have difficulty doing so by
13	reason of a mental or physical disability.

14	To suggest that there is a requirement to

15	establish a further link between the nature of

16	the disability and the salutary effect that the

17	use of testimonial aids would have in alleviating

18	the difficulties in communicating evidence would,

19	in my view, add to the provision a requirement

20	that is not there.	It could well empty this

21	provision of meaning for a large number of those

22	it was intended to assist.	It may be extremely

23	difficult and in some cases impossible for the

24	Crown to adduce the type of evidence that Defence

25	counsel evoked in his submissions, by this I mean

26	evidence that could clarify the type of

27	disability a person has and how that disability

1	ties into that person's ability to testify in the

2	ordinary way.

3	So as far as how Section 715.2 operates and

4	how it should be interpreted I am in agreement

5	with the Crown's position that the jurisprudence

6	that relates to Section 715.1 is useful and that

7	there is, in this case, a sufficient evidentiary

8	basis to engage the provision.	The evidence

9	shows that the complainant is able to communicate

10	evidence but may have difficulty doing so by

11	reason of a physical or mental disability.

12	Again, the impact of her speech impediment on her

13	ability to communicate evidence is clearly

14	established.	There is also evidence that

15	suggests that while she is capable of

16	communicating, her difficulties in understanding

17	certain words or questions, whatever her specific

18	condition or diagnosis might be, may also give

19	her difficulties in communicating her version of

20	events.

21	The fact that the provision is available to

22	the Crown does not end matters though.	The

23	question then becomes whether this particular

24	interview should be admitted pursuant to

25	Section 715.2.	I do recognize that the basic

26	prerequisites for this provision to apply are

27	met.	Despite the lack of cogent evidence about

1	the extent and nature of any mental disability

2	that the complainant may suffer from there is

3	clear evidence that she may have difficulty

4	communicating her evidence by reason of her

5	speech difficulties, which I consider to be a

6	physical disability.	I am also satisfied that

7	the recording was made at a reasonable time after

8	the alleged events, and I am satisfied that in

9	some portions of the video she describes the acts

10	complained of.

11	The difficulty with admitting this video

12	into evidence is not that the prerequisites are

13	not met; the problem lies, in my view, with the

14	content of the statement itself because of how

15	the interview unfolded.	The Crown fairly

16	acknowledged that there were several problems

17	with the video.	The complainant's daughter R.

18	was present during it, the interviewing officer

19	essentially using her as a translator to help him

20	understand what the complainant was saying.

21	There are several segments of the interview where

22	the complainant speaks and it is not possible to

23	discern what she is saying.	The officer then

24	asks R. to tell him what her mother is saying.

25	On the basis of what R. answers the officer

26	continues with his questions.

27	There are portions of this statement that

1	really are R.'s statement as to her

2	interpretation of what her mother is saying.

3	This is highly problematic in itself.	The

4	problem is compounded because R.'s interpretation

5	of what her mother says then becomes the basis

6	for follow-up questions by the officer including

7	many leading questions.

8	There are parts of the interview where R.

9	volunteers some information on her own.	This

10	clearly falls outside the ambit of what

11	Section 715.2 is meant to contemplate; and

12	finally, no doubt, because this was a difficult

13	interview to conduct, the officer uses a lot of

14	leading questions, even apart from those stemming

15	from R.'s "translations" of what her mother says.

16	Many of those incorporate reference to things

17	that the complainant has told the officer in an

18	earlier conversation that is not part of the

19	recorded interview.

20	Acknowledging those problems the Crown

21	suggested that the problematic aspects of the

22	interview could be cured by showing the whole

23	recording to the jury but editing out the sound

24	for the inadmissible portions.	I accept that in

25	certain cases editing can be an adequate solution

26	where inadmissible things find their way in an

27	otherwise admissible interview.	This is

1	sometimes done with accused person's statements,

2	and it is not inconceivable that it could be done

3	with a witness' statement.	But here in my view

4	there are simply too many portions of the

5	statement that would have to be edited out.

6	There comes a point where an edited statement can

7	no longer be considered to be the statement of a

8	witness especially if it is edited for the kind

9	of reasons for which it would have to be edited

10	in this case.	If the various portions of the

11	interview were edited as outlined during the

12	submissions we would be left, in my view, with

13	something that could no longer truly be

14	considered to be the complainant's statement.

15	The portion that the Crown itself agrees should

16	be edited out really add up to a substantial

17	portion of the interview.

18	In summary, the requirement to edit large

19	portions of the interview, the use of leading

20	questions in other portions, and the numerous

21	other portions of the interview where what

22	the complainant says is unintelligible, all lead

23	me to the conclusion that admitting this video

24	recording in evidence would interfere with the

25	administration of justice.	For that reason,

26	although I agree that the provision is engaged

27	and the statutory prerequisites for admission are

1	met, I conclude that the video-recorded interview

2	cannot be used during the complainant's

3	testimony.

4	3.	Application to Exclude the Public.

5	I am now going to turn to the application to

6	exclude the public.	That is governed by

7	Section 486 of the Criminal Code:

8	Any proceedings against an accused shall be held in open court, but the presiding judge
9	or justice may order the exclusion of all or any members of the public from the courtroom
10	for all or part of the proceedings if the
judge or justice is of the opinion that such
11	an order is in the interest of public
morals, the maintenance of order or the
12	proper administration of justice or is
necessary to prevent injury to international
13	relations or national defence or national
security.
14

15	The part of the provision that is engaged here is

16	the one referring to the proper administration of

17	justice.

18	The constitutional validity of this

19	provision was upheld in the case of C.B.C. v.

20	A.G. New Brunswick  et alia 1996 CarswellNB 462.

21	The Supreme Court also reviewed the decision of

22	the sentencing judge in that case to exclude the

23	public in that specific case.	I would summarize

24	the principles that emerge from that case as

25	following:

26	First, the guidelines outlined in

27	Dagenais v. Canadian Broadcasting Corporation

1	(1994) 3 S.C.R. 835, which dealt with the

2	exercise of the common law powers to order

3	publication bans, apply when dealing with

4	applications to exclude the public.	Second, the

5	burden of displacing the general rule of openness

6	of court proceedings lies with the party making

7	the application, in this case the Crown.	Third,

8	when these applications are made there must be a

9	sufficient evidentiary basis from which the judge

10	can assess the applicable factors.	And fourth,

11	the factors that are to be considered, and this

12	is at paragraph 69 of C.B.C. v. A.G. New

13	Brunswick, include, first, the availability of

14	other options and whether there are other

15	reasonable and effective alternatives to the

16	exclusion of the public; second, whether the

17	order sought is as limited as possible; third,

18	the importance of the objectives of the order

19	sought and its probable effect must be weighed

20	against the importance of openness and the limits

21	the order would place on the rights in order to

22	ensure that the positive and negative effects of

23	the order are proportional.	In essence, it is a

24	proportionality test which, put in simpler terms

25	perhaps, boils down to whether the order would do

26	more harm than good when considering the

27	importance of the competing interests at stake.

1	The Crown seeks the exclusion of the public

2	for the complainant's testimony on the basis that

3	she is a witness who has special needs.	Her

4	ability to communicate is affected by her speech

5	impediment, and even though there is no expert

6	evidence or a diagnosis about her cognitive

7	abilities the evidence presented at the voir dire

8	demonstrates that she is not an ordinary witness.

9	She presents with certain challenges as far as

10	staying focused on the questions asked and at

11	times as far as understanding certain words or

12	certain questions.	That in my view is

13	demonstrated by the video-recorded interview that

14	was filed as an exhibit and by the transcript of

15	her preliminary hearing evidence, and it is to an

16	extent confirmed by the evidence of A.K.

17	The Crown argues that given these

18	challenges, having the public excluded from the

19	courtroom for her evidence will enhance her

20	chances of being able to communicate her evidence

21	as effectively as she is capable of.	The Crown

22	is asking the court to infer that the presence of

23	more people in the courtroom could make the

24	entire process more intimidating, and that for a

25	witness who has special needs the court should

26	exercise its discretion to allow her to testify

27	in the least intimidating or distracting of

1	conditions possible.

2	On the basis of the evidence and going back

3	to the applicable factors, I do not think that

4	there are any alternatives available that would

5	avoid interfering with the open court principle

6	while also addressing the Crown's concerns.

7	There really is no middle ground here as far as

8	this witness's testimony is concerned.	Either

9	the public will be excluded for it or it will

10	not.	This is not a case where there is a

11	suggestion that the public be excluded but with

12	certain specific exceptions.	The idea is to

13	allow the complainant to testify with as few

14	people as possible in the courtroom.

15	As for the second factor, which is whether

16	the order sought is as limited as possible, in my

17	view it is.	The Crown is not seeking an

18	exclusion of the public for the whole trial.

19	Rather, it is asking for the exclusion of the

20	public only for the complainant's evidence.

21	Members of the public and representatives of the

22	media would be free to be there for every aspect

23	of the trial except her evidence.	They could

24	hear the evidence of other witnesses, submissions

25	of counsel where her evidence will be referred

26	to, and my instructions where again her evidence

27	will be referred to.	They would have access, if

1	they wish, to a transcript of her testimony and

2	could see for themselves what questions were

3	asked and what answers she gave.	The order

4	sought will not render the complainant's evidence

5	a secret and shield it from public knowledge.	It

6	will not shield these proceedings from any

7	scrutiny from the public.

8	The third factor is the proportionality

9	analysis that I have already talked about, the

10	analysis of good versus harm.	Obviously the open

11	court principle is a fundamental one in our

12	system of law and it is very important, but it is

13	not the only principle that is at stake or

14	relevant here.	There is considerable public

15	interest in ensuring that cases are decided on

16	their merits, and that witnesses who may have

17	certain vulnerabilities or special needs be able

18	to tell their stories to courts.	The importance

19	of this objective is illustrated by the many

20	amendments that have been made to the Criminal

21	Code over the years to assist certain categories

22	of witnesses who may need special accommodations.

23	I have referred to this in dealing with some of

24	the other pretrial motions.

25	Parliament has identified certain categories

26	of witnesses who are thought to need special

27	accommodations, in provisions like Section 715.1

1	and 715.2 and 486.1 and 486.2, for example.	Many

2	of these provisions have been challenged and have

3	been found to not breach the Charter.	The

4	jurisprudence on those provisions and on those

5	issues is instructive in that it underscores that

6	one of the many important objectives of the

7	criminal justice system is its truth-seeking

8	function, and that the notion of preserving trial

9	fairness includes the rights of the accused but

10	also other interests such as the interests of

11	witnesses and complainants.

12	I recognize that the mere fact that

13	proceedings relate to alleged sexual assaults,

14	the sensitive subject matter of the evidence in

15	such cases, and the embarrassment that it may

16	cause a witness to have to testify in public

17	about such matter is not, without more, a

18	sufficient basis to grant an order excluding the

19	public.	But in my view in this case there is

20	more.	The evidence demonstrates that the

21	complainant faces challenges in giving her

22	evidence that are over and above the challenges

23	that any other sexual assault complainant or

24	witness in general would face.	There is no

25	direct evidence that allowing her to testify with

26	fewer people present will necessarily assist her

27	in communicating her evidence, but in my view the

1	evidence in support of a motion like this one

2	does not need to be to that specific effect.	I

3	am satisfied that she faces serious challenges,

4	and I am satisfied that there is at least a

5	possibility that having the public excluded for

6	her testimony may partially alleviate those

7	challenges or, put another way, I do not think it

8	is speculative or unreasonable to think that

9	those challenges and difficulties might be

10	enhanced should she have to give her evidence in

11	front of a packed courtroom.

12	The order sought will result in a breach of

13	the open court principle and an encroachment of

14	the rights protection by Section 2(b) of the

15	Charter but will do so in a limited way and only

16	to the extent necessary to maximize the chance of

17	having the evidence heard, assessed by the jury

18	and for the case to be decided on its merits.

19	Those are the reasons why I granted the

20	Crown's application to have the public excluded

21	for the testimony of the complainant.	I have

22	directed that a transcript of her evidence be

23	filed.	It means that it will be readily

24	accessible to anyone interested in these

25	proceedings and who may want to know what the

26	details of her testimony were.

27	----------------------------------------------

26





1

2	CERTIFICATE OF TRANSCRIPT

3

4

5

6	I, the undersigned, hereby certify that the

7	foregoing pages are a complete and accurate transcript

8	of the proceedings taken down by me in shorthand and

9	transcribed from my shorthand notes to the best of my

10	skill and ability.

11	Dated at the City of Edmonton, Province of

12	Alberta, this 21st, July, 2015.

13

14	Certified Pursuant to Rule 723

15	of the Rules of Court

16

17

18	Darlene Sirman, CSR(A)

19	Court Reporter

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