B.C. judge allows alleged sexual assault victim to testify from outside Canada

A B.C. judge says an alleged victim in a sexual assault trial should be allowed to testify via video-conference from New Zealand so she doesn't have to endure lengthy quarantine periods and risk exposure to COVID-19 by appearing in person.

In a decision released last week, Vancouver provincial court judge Maria Giardini said advances in technology, combined with concerns about the pandemic, outweighed objections by the accused — who insisted that he should have a right to face his accuser in person.

"If Ms. B. were asked to attend in person, she would have to leave a location, which according to her has had very little exposure to the COVID pandemic. She would need to travel many hours on a flight from New Zealand to British Columbia and back again. She would need to quarantine for a total of 28 days at government-authorized locations," Giardini wrote.

"I am satisfied that Ms. B. does not want to travel to Canada during this COVID pandemic ... In all of the circumstances, it is appropriate to consider current COVID-related risks."

'A conservative estimate'

The decision underscores advances in technology that have allowed courts to operate during the pandemic, while also addressing the importance of oral, in-person evidence at a criminal trial.

The names of both the accused and the victim are protected by a publication ban.

According to Giardini's ruling, the case dates back to August 2018, when the woman met the accused at a Vancouver club and returned to his residence after consuming alcohol throughout the evening. 

She vomited and fell asleep. When she awoke, the accused was allegedly having sex with her. She claimed she told him to stop, but he refused.

The man was arrested after the woman called police. According to the ruling, he denied having sex with the woman. His DNA profile was later matched to a vaginal swab taken from the woman during forensic examination.

The woman, who now lives in Christchurch, works casually as a nanny. She said she'd be willing to come to B.C. for the trial if absolutely necessary. The Crown looked into the expense of having her come to Vancouver to testify in person.

"The approximate cost for return travel would be $11,550. That apparently is a conservative estimate," the judge wrote.

"The cost for Ms. B. to stay in quarantine in a hotel in Vancouver for 14 days and time to attend trial, approximately another 5 days, would be approximately $3,211 ... In addition, there would be a pre-flight COVID test in Vancouver at a minimum of $225 and the cost of quarantining in New Zealand on her return (hotel only) of $3,100."

'Just because something can be done'

The Criminal Code allows courts to receive evidence from outside Canada through technology, and places the onus on the accused to convince judges as to why a witness should be required to appear in person.

The accused's lawyer argued that the woman's testimony would be vigorously contested.

"He maintains that where there are serious issues of credibility, as there are in this case, a court should be reluctant to deprive the trial judge (and presumably the accused) of seeing the witness physically present in the courtroom while giving evidence," Giardini wrote.

"Mr. N. further submits that, although it may seem appropriate to allow such an application in these times when we are experiencing a COVID pandemic, the court should exercise some caution. He submits just because something can be done, does not mean it should be done."

Judges from different courts have taken a variety of positions on similar applications in the past.

In one 2002 case, a judge found that the crucial significance of the evidence a witness planned to give in a drug trial meant that it shouldn't be given by video link.

But in another case from the same year, a different judge allowed remote testimony, claiming that "sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying."

Giardini cited a 2020 Ontario case involving a woman from Barbados who was worried about travelling to Toronto during the pandemic to testify about allegedly finding a loaded gun in her son's backpack. He was later charged with weapons offences.

"Apart from the very real uncertainties that arise from closed borders and cancelled flights, the prospect of up to a month of quarantine upon a witness is more than a simple matter of inconvenience, particularly where a reasonable alternative such as video-conference evidence is available," the judge in that case wrote.

Giardini said she was satisfied that the woman would appear on a large monitor and that tests of the technology had worked well. She also said it could be dangerous to delay the trial until the COVID situation improves.

"First, none of us has a crystal ball that will tell us when COVID-19 will be sufficiently under control," the judge wrote.

"Second, as the old judicial adage goes – justice delayed is justice denied."