Decision Content
R. v. Andre-Stewart, 2017 NWTSC 64
S-1-CR2016000075
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
JAKE ANDRE-STEWART
_________________________________________________________
Transcript of the Rulings by the Honourable Justice L. A.
Charbonneau at Inuvik, in the Northwest Territories, on
August 23rd, 2017:
1. To exclude the public from the courtroom; and,
2. Access to exhibits entered on a voir dire.
_________________________________________________________
APPEARANCES:
Mr. B. Green: Counsel for the Crown
Mr. C. Davison: Counsel for the Accused
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Charge under s. 271 Criminal Code
No information shall be published in any document or
broadcast or transmitted in any way which could identify
the victim or a witness in these proceedings pursuant to
s. 486.4 of the Criminal Code of Canada
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1 THE COURT: I am going to now deal with
2 the application that was heard earlier in this
3 trial with respect to the exclusion of the
4 public for the evidence of the complainant.
5 This application was brought in the
6 context of a trial on charges of sexual
7 assault and sexual interference. The offences
8 are alleged to have occurred during the summer
9 of 2015 in Tsiigehtchic.
10 The complainant was 11 years old at the
11 time of the alleged events, and 13 at the time
12 of the trial. She and the accused are first
13 cousins.
14 Earlier this week, at the start of the
15 trial, a voir dire was held to determine
16 whether the videotaped statement given
17 by R. A. to a police officer in Whitehorse
18 could be used as part of her evidence,
19 pursuant to section 715.1 of the Criminal
20 Code.
21 She was called as a witness on that voir
22 dire because one of the statutory conditions
23 for admissibility of this type of evidence is
24 that the witness has adopted the contents of
25 the recording.
26 The Crown sought an order excluding the
27 public for her evidence pursuant to section
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1 486 of the Criminal Code, as well as orders
2 for the use of a screen and the presence of a
3 support person with her during her testimony.
4 These requests were made both for the voir
5 dire and for the trial itself.
6 The defence did not oppose the requests
7 for the screen and the support person but
8 objected to the request that the public be
9 excluded.
10 In support of the application, the Crown
11 relied on the representations of Crown
12 counsel. No evidence was adduced in support
13 of the application.
14 Crown counsel indicated that R. was
15 nervous about testifying with the accused's
16 parents present in the courtroom given the
17 nature of the allegations and the close family
18 connections between all involved. Crown
19 counsel underscored the age of the witness,
20 the nature of the allegations, the family
21 connections between the witness and the
22 accused and his parents. I should say that
23 the only members of the public who were
24 present at the time and throughout the trial
25 were the accused's parents.
26 There was also reference during the
27 submissions to the testimony of another
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1 witness who had been called already in the
2 trial. That witness, now 16 years of age, is
3 also related to the accused and to R. That
4 witness was asked about her family connections
5 in Tsiigehtchic and said that she is related
6 to virtually everyone in that community.
7 An order excluding the public for her
8 evidence was sought and was not strongly
9 opposed by defence.
10 In the case of that witness, the basis for
11 the request was that she felt some pressures
12 from R.'s family, felt torn between the two
13 sides of her family in this case, and was
14 reluctant to testify about this matter. I did
15 exclude the public for the testimony of that
16 witness.
17 The legal framework that governs
18 applications to exclude the public is set out
19 at section 486 of the Criminal Code. As I
20 have noted in other cases, that provision was
21 amended a few years ago and this has altered
22 the legal framework somewhat. I discussed
23 this in some detail in a few cases, including
24 R. v. K. M. 2017 NWTSC 27. I discussed the
25 fundamental principles that are engaged in
26 applications like this and the effect of the
27 2015 amendments. Without repeating what I
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1 said in R. v. K. M. here, I adopt my analysis,
2 in that case, for the purposes of this
3 application.
4 In opposing the exclusion of the public
5 for R.'s evidence, the defence underscored the
6 importance of the open-court principle but
7 also noted because of the nature of the
8 application and the testimony, R. would not in
9 this case have to recount all the details of
10 the alleged events. As part of the voir dire,
11 she would, for the most part, be watching and
12 listening to the videotaped interview. She
13 may be asked a few additional questions but
14 would not have to describe the events in great
15 detail.
16 This, counsel argued, would reduce the
17 burden on her and thereby reduce the concerns
18 about the necessity to exclude the public to
19 obtain a full and candid account of events.
20 The Crown countered that even if the
21 witness did not actually have to describe the
22 events, having to sit and watch a video of
23 herself describing those events to a police
24 officer in the presence of the public, and of
25 the accused's parents, would be difficult and
26 could compromise her ability to answer
27 whatever questions might be put to her
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1 afterwards.
2 As I said already, there was no evidence
3 adduced on the application. Although the
4 representations of counsel can serve as a
5 basis for granting applications like this one,
6 when we get into things like comparing levels
7 of trauma or difficulties that might arise in
8 different situations, the effect of watching a
9 statement in the presence of the public and
10 the impact of that on the person's ability to
11 testify afterwards, we are venturing into an
12 area that may require evidence as opposed to
13 simply the representations of counsel.
14 So in considering the application, I
15 approached that aspect of the submissions with
16 great caution. And I didn't feel I could
17 attach much weight to either counsel's
18 representations about how the use of the video
19 would or would not mitigate the impact on the
20 witness of having the public present for her
21 testimony.
22 But aside from that evidentiary concern
23 and from the point of view of policy
24 considerations that are engaged in these types
25 of applications, the effect of the position of
26 the defence, if it prevailed, would be that
27 where section 715.1 is used in a trial, it
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1 would be more difficult for the Crown to
2 succeed on an application to exclude the
3 public. A child witness that is benefitting
4 from the section 715.1 accommodation would be
5 more likely to be deprived of another
6 potential accommodation (the one contemplated
7 by section 486). And I agree with the Crown's
8 submission that this would be somewhat of an
9 incongruous result.
10 Section 715.1 was enacted to facilitate
11 the presentation of evidence of child
12 witnesses, in recognition of the failure of
13 the justice system to address the special
14 needs of child witnesses, particularly in
15 sexual assault cases. This is explained in
16 some detail in the Supreme Court of Canada
17 decision of R. v. L. (D. O.), [1993] 4 S.C.R.
18 419 where the constitutional validity of
19 section 715.1 was upheld.
20 Clearly, concern for young witnesses was
21 also one of the things that was addressed in
22 the 2015 amendments to section 486, as was
23 encouraging the reporting of offences and the
24 participation of witnesses in the criminal
25 justice process. It would be an odd result to
26 have the 715.1 procedure become an argument
27 against offering a young witness the
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1 accommodation contemplated by section 486.
2 In deciding that the application to
3 exclude the public for R.'s testimony should
4 be granted, I considered her age, the nature
5 of the allegations, the family relationship
6 between R. and the accused, the size and
7 close-knit nature of the community of
8 Tsiigehtchic (which I would take judicial
9 notice of, even if I did not have the evidence
10 of the other witness about her being related
11 to everyone in the community).
12 Although the public was also excluded for
13 the evidence of one other witness in this
14 trial, the public could be present for the
15 rest of the proceedings, other testimony, the
16 submissions of counsel, and eventually my
17 ruling.
18 The allegations and the evidence are a
19 matter of the record and will not be kept
20 secret. There has been no application by the
21 Crown to ban publication of the evidence aside
22 from information that would be specific enough
23 to identify R. So the order sought, in my
24 view, is as limited as necessary to achieve
25 its intended purpose.
26 The Crown also applied to exclude the
27 public during R.'s testimony during the trial
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1 itself. Previously I was referring to the
2 voir dire. My reasons for granting the
3 application for the voir dire apply equally to
4 the trial proper. More so, in fact, because
5 the scope of cross-examination and of
6 examination in-chief in the trial itself would
7 exceed what it was in the voir dire. And
8 that's why I granted that application as well.
9 The last issue to be dealt with is access
10 to the videotaped statement that was marked as
11 an exhibit on the voir dire.
12 That issue arose as a result of the
13 question I asked during submissions on the
14 application to exclude the witnesses. My
15 understanding of the law is that the
16 open-court principle applies to testimony in
17 court. It also applies to access to exhibits.
18 Exhibits that are presented during a trial
19 are not ordinarily sealed. The Court has
20 jurisdiction to seal them on application. But
21 the same kind of balancing between
22 transparency of court proceedings and other
23 important principles has to be considered
24 before access to exhibits is prevented.
25 On a successful 715.1 application, as was
26 the case here, the video-recorded statement
27 becomes a substitute for what would otherwise
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1 be the bulk, or at least part of, the
2 witness's testimony in-chief. It is not
3 marked as a trial exhibit but it is marked as
4 an exhibit on the voir dire.
5 As far as the publicity of proceedings in
6 the open-court principle, I am not aware of
7 any legal principle that draws a distinction
8 between voir dire exhibits and trial exhibits
9 when there is no sealing order. My
10 understanding of the rule is that those are
11 accessible to the public barring a court order
12 stating otherwise. Here, there was no such
13 application. I see no legal basis to prevent
14 access to exhibits in this case. There may
15 well be logistical issues that come up,
16 particularly when we are on circuit, but as
17 far as the principle is concerned I do not
18 think access can be prevented.
19 Those are my reasons for the ruling I
20 delivered earlier in this trial.
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1 Certified to be a true and
accurate transcript pursuant
2 to Rules 723 and 724 of the
Supreme Court Rules,
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8 Lois Hewitt,
Court Reporter
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