R. v. Reed

2024 BCSC 2619 R. v. Reed IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Reed, 2024 BCSC 2619 Date: 20240415 Docket: 32995-1, 32995-26 Registry: Vancouver Regina v. Richard Charles Reed Before: The Honourable Madam Justice Watchuk Oral Ruling re Application for Testimonial Accommodation of Witness Mr. Elburai Counsel for the Crown: R.J. Antonuk M.J. Wolf F. Nejatali Counsel for the Accused: K. Westell S.N. Dickson Place and Date of Trial: Vancouver, B.C. April 2-5,8-11,15, 2024 Place and Date of Judgment: Vancouver, B.C. April 15, 2024 [1] THE COURT: Thank you, counsel, both. In the interests of time and the process of the ongoing trial, I will give you brief oral reasons. If a transcript is ordered, the only proviso is that the sequence of the various paragraphs may move. The substance will not change and nor will the decision. [2] This then is a Crown application pursuant to s. 486.2 of the Criminal Code for what is often referred to as testimonial accommodations. [3] The goal of the provisions in 486.2 generally, and the test, are both stated in 486.2(2). Starting at about the fourth line in my copy of the Criminal Code, and paraphrasing, it first permits the witness to testify outside the courtroom or behind a screen or other device - those are the potential accommodations - I begin my quote: ... 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. [4] As it is a discretionary order, I must instruct myself as to whether or not I am 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. [5] Continuing, as I understand part of the basis of the Crown application for this witness, Mr. Elburai testifying in the courtroom is affecting his ability to give evidence. Mr. Elburai is clearly uncomfortable -- and I pause to emphasize here that uncomfortableness is not the test and comfort is not the requirement. However, Mr. Elburai is clearly uncomfortable in his evidence, which by my count was about 32 minutes this morning in the Crown's examination-in-chief. That discomfort is on the record as verbal statements during his evidence, and was apparent from his body language. He was at least two times, and I believe three or four times, bent over at the waist, in other words curled up in a ball from the waist. [6] Mr. Elburai is a 27-year-old male, I say by way of context. From his verbal statements and from his body language, I conclude that this discomfort, in addition to his evidence so far in general, is affecting his ability to give evidence. The proceedings this morning are in a voir dire. The issue on the voir dire is to be argued next week. [7] In the entire context -- and I will give some further context in a moment and reasons -- I am satisfied that first, it will facilitate the giving of a full and candid account by the witness and, second, that it will be in the interests of the proper administration of justice. [8] I therefore grant the Crown's application for an order for the witness to testify from outside the courtroom and in these circumstances by video. [9] In coming to those conclusions, I have considered all of the statutory provisions under 486.2, the 486.2(3) factors, and the factors in the context of the submissions of both counsel. In particular, I have considered the nature of the offence, being first degree murder and one of, if not the most serious offence that is often seen in these courts. That is (c). Section (d) is the relationship of the witness, Mr. Elburai, and the accused, Mr. Reed. I have considered society's interest in (g). I have considered the other factors as set out in (h), which is both the nature of the evidence, as referred to by Crown counsel, and the other factors, including expeditiously hearing and determining this voir dire. That would go to the proper administration of justice part of the test. [10] Continuing, pursuant to s. 486.2(4), I have the ability to hear from the witness. I have done so quite unintentionally, as the witness spoke extemporaneously to me before the adjournment this morning. [11] The evidential base, which I must consider and which I have, includes the witness' statements in his testimony, as outlined by Mr. Wolf in his submissions, and his statements to the court extemporaneously. One of those statements was to the effect that without a video link he would prefer to go to jail. The evidential base also includes, as I indicated earlier, the witness' body language. [12] In coming to the conclusion that I have, and in keeping with these brief reasons, I rely on the Schneider application filed by the Crown for the background facts that is filed under number 32995-25. I also rely on both counsel's able submissions on the law and on the test to be applied, and on the circumstances of this application, I have specifically considered defence counsel's submission. In addition to that, I have considered the issue of the credibility of the witness and the law as set out in para. 51 of R. v. J.L.K., 2023 BCCA 87. [13] In the result then, and to summarize, the application is granted. The witness will testify from another room in this courthouse by way of video link. That video link has been set up. Just by way of background, Madam Registrar, this morning immediately when it became apparent to the Court that the application was going to be made, assisted the court staff to have the room ready, so the room is ready. [14] So the room is ready. We can continue. I suggest a five-minute break. It is 2:35. We will resume at 2:40. Thank you very much. "Watchuk J."