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Wednesday, June 13, 2018 @ 8:17 AM  

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Appeal by the Provincial Crown from a decision dismissing an application for prerogative relief. The respondent was charged with impaired driving. The alleged offence took place in a district where the position of provincial court judge was vacant due to a retirement. The respondent brought a Charter application for exclusion of evidence. On the date of the hearing, the judge providing coverage for two courts ordered the witnesses, the accused, and counsel to appear in Clarenville and he would hear evidence and argument by video-conference from his home courtroom. The judge raised concern about the work load he had with regard to trials at two Provincial Court locations, the four-hour drive he would have to make to attend court in Clarenville, and the fact that the case involved a summary conviction offence. Crown and defence counsel objected to the process proposed for the conduct of the voir dire with respect to the admissibility of the testimony of the arresting officer. The judge rejected the objection and ultimately denied the accused’s Charter application based on the testimony of the investigating police officer heard by the judge via video-conference. The Crown brought an application by way of certiorari, prohibition and mandamus, seeking to quash the decision of the Provincial Court judge. The application was dismissed on the basis that s. 4 of the Provincial Court Act, 1991, provided authority for conduct of the hearing remotely.

HELD: Appeal dismissed. The law did leave room for the trial judge in a criminal matter to exercise a discretion to appear by video in an exceptional case as long as the purposes of s. 650 of the Criminal Code were met. The focus of the analysis in a case where the judge wished to appear by video must be trial fairness and access to justice, not mere convenience. In this case, it could be said that any right of confrontation recognized under Canadian law was not impaired to the extent that the respondent was able to physically face the arresting officer in person. The only evidence given at the hearing in Clarenville was that of the police officer. Given the nature of the hearing in this matter and the evidence having been offered by the officer in the physical presence of the respondent and counsel, it would not appear that there was any impairment of the evidence receiving process such that the judge was unable to make a full and proper evaluation of the evidence. There was also no impairment of the defence’s ability to cross-examine. While the judge considered a number of irrelevant factors in determining whether to appear by video, in the exceptional circumstances of there being a judicial vacancy in Clarenville and the long travel time between the two courts which was causing matters to be cancelled in both courts, the Supreme Court judge did not err in upholding the decision by the Provincial Court judge to conduct the voir dire hearing through his virtual presence at his court room. The procedure did not render the Charter application hearing unfair.

R. v. Newfoundland and Labrador (Provincial Court, Judge), [2018] N.J. No. 156, Newfoundland and Labrador Court of Appeal, May 8, 2018. Digest No. TLD-June112018005