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R. v.

O’Hare, 2016 BCPC 362, 2016 CarswellBC 3321

2016 BCPC 362, 2016 CarswellBC 3321

2016 BCPC 362


British Columbia Provincial Court

R. v. O’Hare

2016 CarswellBC 3321, 2016 BCPC 362

REGINA v. SEAN MICHAEL O’HARE

J.P. Maccarthy Prov. J.

Heard: October 18, 2016


Judgment: October 18, 2016
Docket: Duncan 38118-3-C

Counsel: L. Fontaine, for Crown


C. Hunt, for Defendant

Subject: Criminal; Public

Table of Authorities

Cases considered by J.P. Maccarthy Prov. J.:

R. v. Forster (2006), 2006 BCPC 237, 2006 CarswellBC 1402 (B.C. Prov. Ct.) — referred to

R. v. Hainnu (2011), 2011 NUCJ 14, 2011 CarswellNun 18, 274 C.C.C. (3d) 136 (Nun. C.J.) — referred to

R. v. Jimaleh (2016), 2016 CarswellOnt 15028 (Ont. S.C.J.) — considered

R. v. Kerr (2011), 2011 ONSC 1231, 2011 CarswellOnt 1139 (Ont. S.C.J.) — referred to

R. v. L. (M.A.C.) (2008), 2008 BCPC 272, 2008 CarswellBC 2936 (B.C. Prov. Ct.) — referred to

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R. v. O’Hare, 2016 BCPC 362, 2016 CarswellBC 3321

2016 BCPC 362, 2016 CarswellBC 3321

R. v. Pal (2007), 2007 BCSC 1493, 2007 CarswellBC 2403 (B.C. S.C.) — referred to

Statutes considered:

Criminal Code, R.S.C. 1985, c. C-46


Generally — referred to

s. 372(3) — considered

s. 486.2 [en. 2005, c. 32, s. 15] — considered

s. 486.2(2) [en. 2005, c. 32, s. 15] — pursuant to

s. 486.2(3)(a) [en. 2005, c. 13, s. 15] — considered

s. 486.2(3)(b) [en. 2015, c. 13, s. 15] — considered

s. 486.2(3)(c) [en. 2015, c. 13, s. 15] — considered

s. 486.2(3)(d) [en. 2015, c. 13, s. 15] — considered

s. 486.2(3)(e) [en. 2015, c. 13, s. 15] — considered

s. 486.2(3)(f) [en. 2015, c. 13, s. 15] — considered

s. 486.2(3)(f.1) [en. 2015, c. 20, s. 38(2)] — considered

s. 486.2(3)(g) [en. 2015, c. 13, s. 15] — considered

APPLICATION by Crown for testimonial accommodation for complainant testifying at accused’s trial.

J.P. Maccarthy Prov. J.:

INTRODUCTION

1      THE COURT: The accused Sean Michael O’Hare is charged under an information with an allegation that between the
17th of June 2015, and the 8th day of August, 2015 inclusive, that he did, without lawful excuse and with intent to harass
Jody Smith, did make or cause to be made repeated communications to her by means of telecommunication. That is an

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R. v. O’Hare, 2016 BCPC 362, 2016 CarswellBC 3321

2016 BCPC 362, 2016 CarswellBC 3321

offence contrary to s. 372(3) of the Criminal Code.

2      The allegations, as I understand them, arise from what is alleged to have been Facebook contact with the complainant,
Ms. Smith, in such a manner that it became an offence contrary to ss. (3). Subsection (3) of s. 372 reads as follows:

Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates,
or causes repeated communications to be made, with them by a means of telecommunication.

3      Although the original process indicated Crown was proceeding by way of indictment, it is now common ground that
Crown is proceeding summarily. Accordingly, the maximum penalty for this offence is six months of incarceration and a
$5,000 fine in addition to or in lieu of any other sanction.

4      The Crown has brought an application pursuant to s. 486.2(2) of the Criminal Code. This is what is commonly referred
to as a “testimonial accommodation” provision for witnesses.

BASIS FOR APPLICATION

5      In support of the application, I have before me the sworn affidavit of Jody Smith deposed to on the 27th of September,
2016, and filed on that date. In her affidavit, Ms. Smith indicates that she is 42 years of age at the time of the scheduled trial.
She has spoken to the Crown prosecutor assigned to this file and advised that Crown prosecutor that she would like to have a
support person next to her and the ability to testify from a different room than the actual courtroom.

6      The deponent goes on to indicate that she has been diagnosed with coronary arterial heart disease and easily experiences
heart palpitations in stressful situations. She indicates that she experiences a tightening of the chest, light-headedness, and
extreme fatigue. She further indicates that she has been battling bone cancer for the last five years and that she is currently in
remission, noting that she has received chemotherapy, and finds that her overall health has been impacted and that she gets
easily tired and ill.

7      At paragraphs 7 and 8, she deposes as follows, and I quote:

7. I also suffer from an anxiety disorder and depression. I have been prescribed Ativan to help keep my calm and I still
take Ativan to date. I have been seeing a counsellor for my anxiety and health issues, and have been feeling anxious
about the upcoming court date.

8. I do not know the accused personally and I believe that being in the courtroom will cause me to have an anxiety attack
and impact my overall health.

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8      The affidavit of Ms. Smith is sworn in support of the Crown’s application to permit her to testify with the assistance of
closed circuit TV, and with a support person sitting near to her so that she does not have to see the accused and in order for
her to feel safe and for no other improper reason.

PROVISIONS OF THE CRIMINAL CODE

9      As noted above, Crown has brought on this application pursuant to s. 486.2(2). Section 486.2 has recently been
amended, effective July 22, 2015. Section 486.2 now reads as follows:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the
prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may
have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the
witness testify outside the court room or behind a screen or other device that would allow the witness not to see the
accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of
justice.

Other witnesses

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor
in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a
screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the
order would facilitate the giving of a full and candid account by the witness of the acts complained of or would
otherwise be in the interest of the proper administration of justice.

[emphasis added]

Application

(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or
justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or
justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings
will take place.

Factors to be considered

(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

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(d) the nature of any relationship between the witness and the accused;

(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in
an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a
peace officer;

(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities
relating to national security or intelligence;

(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the
criminal justice process; and

(h) any other factor that the judge or justice considers relevant.

Same procedure for determination

(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an
order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness
testify in accordance with that subsection.

Conditions of exclusion

(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2)
unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by
means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while
watching the testimony.

No adverse inference

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).

10      I note that prior to the amendment in July of 2015, ss. (2) of 486.2 read as follows:

(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor
or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the
witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and
candid account from the witness of the acts complained of.

[emphasis added]

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11      I note further that the previous provisions contained in ss. (3) have been expanded by the present wording of ss. (3),
and specifically that the ss. (3)(e), (f) and (g) have been added as factors to be considered.

CASE AUTHORITIES RELIED UPON BY THE PARTIES

12      The accused has relied upon four cases which were decided prior to the amendments to s. 486.2(2). Those cases are: R.
v. Kerr, 2011 ONSC 1231 (Ont. S.C.J.); R. v. L. (M.A.C.), 2008 BCPC 272 (B.C. Prov. Ct.); R. v. Pal, 2007 BCSC 1493 (B.C.
S.C.); R. v. Forster, 2006 BCPC 237 (B.C. Prov. Ct.).

13      Crown has referred me to the decision of the Nunavut Court of Justice of R. v. Hainnu, 2011 NUCJ 14 (Nun. C.J.).
Both counsel have also referred me to the decision in R. v. Jimaleh, [2016] O.J. No. 5133 (Ont. S.C.J.), which they tell me,
and what I have observed from conducting my own searches, appears to be the most recent decision that considers the
amended provision of s. 486.2(2).

CROWN’S POSITION

14      The Crown submits that the requirements of s. 486.2(2) and the requirements that are set out in s. 3 are supportive of an
order being made under that section to permit the required testimonial accommodation for this particular witness. In
particular, Crown says that the provisions of ss. (3)(b), (c), (d) and (g) are applicable and relevant to this application.

15      In particular Crown points out that the complainant, Ms. Smith, suffers from both mental and physical disabilities by
virtue of her physical health, as well as her anxiety disorder and depression.

16      With respect to ss. (3)(c), Crown says that the nature of this particular offence, which comprises a harassment by
communication, is of the type that needs to be fully considered. Crown submits that the circumstances surrounding the
alleged offence, being through a communication by way of Facebook, are supportive of the view that direct confrontation of
the witness by the accused in the courtroom will cause the witness unacceptable stress and anxiety.

17      Similarly, ss. (3)(d), the nature of any relationship between the witness and the accused, gives concern that, having
never met the accused, the witness in this case will, for the first time, be confronted by someone who is accused of the
alleged harassment through repeated communications with her. Again, Crown suggests that this is a situation where the stress
and anxiety for this particular individual, who is prone to anxiety disorder and depression, will be unacceptable and the
witness will be adversely impacted physically and as to her ability to provide her evidence.

18      Crown says that with respect to ss. (3)(g) that in order to encourage the reporting of these types of offences and for
complainants to participate in the criminal justice process, that in appropriate circumstances, such as the one at hand, that it is
important that the court provide the necessary accommodation in order to protect both the health and the wellbeing of the

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complainant and facilitate the giving of evidence.

19      Crown also say that the method which is being suggested, which is by way of a closed video circuit TV connection,
will offer the type of necessary accommodation for this complainant, and will not, on the other hand, deprive the accused and
defence counsel of the ability to make full answer and defence to the charges.

20      As I understand it, the arrangements that are being proposed by Crown have been utilized on other occasions in this
courtroom. No issues have arisen, either with respect to the technological requirements, and no issues have arisen with the
proper conduct of both examination in chief as well as cross-examination.

21      In that regard, I have Crown’s submissions that any exhibits which will need to be reviewed by the complainant can be
done so through both her evidence in chief and in cross-examination over video with copies of the various exhibits before the
witness. Again, I am given to understand that this has happened in the past, where there are young children involved, and that
no problems have arisen as far as the practicality of having those documents available in that fashion.

DEFENCE’S POSITION

22      It is defence’s position that this court does not have before it sufficient information in order to come to the conclusion
that the complainant suffers from the various diseases and health conditions which are set out in her affidavit. Defence
suggests that medical evidence is required in order for a decision in favour of the Crown to be rendered on this application.

23      The various decisions mostly relied upon by defence are situations where the court has declined to grant the order
sought under the former provisions of s. 486.2(2). Those are cases that mostly involved adult witnesses, and mostly involved
witnesses who had a former relationship with the accused person, (and in some cases were spouses) and also involved
significantly more serious offences than the charges in this particular case. In those cases the court declined to grant the order
on the basis that the then operative test laid out in s. 486.2(2) was not met, and that the justices and judges in those cases were
not of the opinion that “the order is necessary to obtain a full and candid account from the witness of the acts complained of.”

24      Accordingly, defence seeks that I dismiss Crown’s application and that the complainant in this case be required to
testify in the courtroom in the presence of the accused.

25      Alternatively, both Crown and defence say that if I determine that a video link is not an appropriate way for this matter
to proceed but accommodation is necessary, then I should consider making an order that the complainant be permitted to be
behind a screen in order to complete her testimony and cross-examination in the courtroom.

ANALYSIS

26      I agree with Crown’s submission, which I do not believe is seriously challenged by defence, namely that the factors

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which are of significant relevance for consideration here are s. 486.2(3)(b), (c), (d) and (g).

27      However, in terms of a complete analysis, I offer the following comments. In this case, the age of the witness is not a
material consideration as laid out in ss. (a).

28      The witness’s mental or physical disabilities, if any, as set out in ss. (b) are of significant relevance in this matter.

29      I am of the view that the affidavit that has been filed on behalf of the Crown by the complainant does adequately lay
out some significant concerns about an individual who not only suffers from a coronary arterial heart disease, but apparently,
according to her unchallenged evidence, is more pronounced with heart palpitations in stressful situations. The fact that the
complainant experiences tightening of the chest, light-headedness, and extreme fatigue would be concerning if such a series
of symptoms manifested themselves in the course of either examination in chief or cross-examination.

30      Of particular concern is the complainant’s anxiety disorder, and specifically the facts that the complainant apparently is
reliant upon Ativan to help keep her calm, that she has had to address those anxiety issues through counselling, and she is
feeling anxious about the upcoming court date.

31      That is not to say that all witnesses who are anxious about testifying would necessarily be accommodated by the
granting of an order of this nature. However, anxiety is a recognized disorder from which this complainant apparently suffers;
in cases of that disorder, the condition goes beyond simple nervousness or anxiousness about testifying.

32      I have given regard to the nature of the offence as set out in ss. (3)(c) and the nature of any relationship as set out in ss.
(3)(d). I am concerned that this complainant, who has never met the accused in this case and who has allegedly subjected her
to harassing communication, will be confronted for the first time in court with the presence of the accused. She says that this
could precipitate an anxiety attack and impact her overall health.

33      Again, a person who is susceptible to a significant anxiety condition could very easily experience an attack in the midst
of her evidence or in a rigorous cross-examination. However, to have the additional stress of having the accused personally in
the courtroom with her and seeing him for the very first time could give rise to a greater degree of severity for this particular
anxiety problem.

34      The provisions of ss. (e), which is the need for security or protection from intimidation or retaliation, ss. (f), which is
the provision for protecting identity, and the provisions of ss. (f.1), which is a need to protect identity if a witness has
responsibilities relating to national security or intelligence, are all inapplicable to this case.

35      I am of the view that the provision of ss. (g), namely: society’s interest in encouraging the reporting of offences and the
participation of victim and witnesses in the criminal justice process, is indeed an important and relevant factor in this case. It
is particularly important when people with accepted disabilities, such as an anxiety and depression disorder, which may be
triggered in the stressful environment of a courtroom, are being asked to come forward and to participate in the criminal
justice system by providing evidence.

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36      Again, each case must be decided on its own merits, and on the facts that apply to it. In my view, Crown has
established the required factual matrix in order to succeed on this application, based upon the evidence that I do accept, and
which is not challenged by any contradictory evidence.

37      I do also note that in the decision of R. v. Jimaleh, that the learned justice, at paragraph 7, says as follows:

Section 486.2(2) previously required that the order be “necessary to obtain a full and candid account from the witness of
the acts complained of”. The amended section has lowered the threshold somewhat to that of “would facilitate the giving
of a full and candid account...” which indicates an intention to make testifying by closed circuit or behind a screen a
more commonplace occurrence.

38      Defence has indicated that if this type of application is granted for an individual like the complainant in this case, then
there is a prospect of a flood of applications that will be made and that there will be a movement towards fewer witnesses
actually appearing in the court room.

39      I am of the view that Parliament has made an intentional amendment to ss. (2) to make those types of applications more
common by virtue of the revised tests. That is not to say that there necessarily will be a significant increase in the number of
resulting orders granted. The orders will not be granted if those applications do not meet the requirements under ss. (2) based
upon considerations laid out in ss. (3). However, it is clear that it is Parliament’s intention to offer an alternative and to use
appropriate technology that has been developed over the years to permit evidence to be given in a variety of circumstances,
and specifically now in circumstances where the appropriate test is met to establish the requirements for an order that
facilitates the giving of a full and candid account by the witness of the acts complained of or it is otherwise established as to
being in the interest of the proper administration of justice.

DECISION AND ORDERS

40      Accordingly, I grant the Crown’s application, and I will permit the witness, Jody Smith, to testify with the assistance of
closed-circuit television. I will make a further order that Jody Smith be permitted to have a support person sitting near her,
such that the support person is within visual sight of the court, in order to facilitate the complainant completing her testimony.

41      I leave it to the further direction of the trial judge in order to determine the exact role of the support person and the
location of that support person during the evidence being provided by the complainant, Jody Smith.

42      That concludes my reasons for judgment.

Application granted.
 

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