COURT FILE NO.: CR-22-0025-0000 DATE: 2023-06-23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

J. Cavanagh, M. Purcell and T. Schuck, for the Crown

Applicant

• and -

ARCHIE McKAY

R. Amy, for the Respondent

Respondent

HEARD: April 14, 2023, at Kenora, Ontario

Mr. Justice J.S. Fregeau

REASONS ON APPLICATION

Introduction

[1] Archie McKay (the “accused”) stands charged with five counts of first-degree murder arising from an early morning fire at a residence located at 854 Macheetao Road in the First Nation community of Kitchenuhmaykoosib Inninuwug on May 2, 2019 (the “fire”). Tragically, Geraldine Chapman, the accused’s common law spouse, and four young children died in the fire.

[2] Kitchenuhmaykoosib Inninuwug First Nation (“KI”) is a remote, “fly-in” community located approximately 550 km northeast of Kenora. The accused and the vast majority of civilian witnesses to be called by the Crown in this case are Indigenous individuals who reside in KI.

[3] The Crown has indicated that it will advance three alternate “routes” to first-degree murder under the Criminal Code:

1. Section 231(2) – planned and deliberate murder;
2. Section 231(5)(e) – causing death while committing or attempting to commit the offences of kidnapping or forcible confinement; and
3. Section 231(6) – causing death while committing or attempting to commit the offence of criminal harassment.

[4] This matter is scheduled for a four-week jury trial in Kenora in November 2023. The jury panel will be drawn from throughout the Northwest Region. The accused has indicated that panel members will be challenged for cause because of the accused’s Indigenous ancestry. Given the length of the trial and the challenge for cause, it is anticipated that a larger than usual jury panel will be summonsed for the trial.

[5] On this application, the Crown requests an order pursuant to s. 714.1 of the Criminal Code permitting 10 civilian witnesses, all of whom reside in KI, to testify at the trial remotely from KI.

Background

[6] The fire at the home of Ms. Chapman was captured on video surveillance from a nearby store. The fire is first visible on the video at approximately 4:48 a.m. Numerous neighbours responded to the fire very shortly thereafter. The first emergency call was placed at 5:02 a.m. Police arrived at the scene at approximately 5:05 a.m.

[7] Neither the neighbours nor the police who attended the scene of the fire observed the accused at the scene until shortly after 7:00 a.m. on May 2, 2019. At that time, he was observed rushing toward the rubble of the burned home. The accused was intercepted by police and arrested for public intoxication. He was observed to have burns on the right side of his forehead and the back of his left hand.

[8] The Crown’s theory of the case is that the accused started the fire in the attached porch at 854 Macheetao Road, that he burned himself while doing so and then fled without warning the people inside the residence.

[9] The accused provided a statement to the police on May 2, 2019, and another on December 8, 2020. The accused has conceded the voluntariness of these two statements. The accused denied starting the fire at 854 Macheetao Road. In very general terms, the accused told police that:

• during the early morning hours of May 2, 2019, after leaving 854 Macheetao Road, he went to his trailer “over there at the west end” and that he couldn’t sleep;
• that he saw the smoke from the fire and returned to the home and tried to kick open the door or doors but was unable to do so. He then tried unsuccessfully to get into the home through a window;
• that he then started knocking on doors of neighbouring homes for help; and
• that he suffered burns from the heat while attempting to enter the burning residence.

[10] The nature of the anticipated evidence of the witnesses whom the Crown seeks to have testify at trial by video, and the personal circumstances of those witnesses as alleged by the Crown, is as follows:

• Bella Chapman – Ms. Chapman is 72 years old, the mother of Geraldine Chapman and the grandmother of the four children that died in the fire. Ms. Chapman resides with her common law spouse, Solomon Begg, near the location of the fire. Ms. Chapman attended the scene of the fire shortly after it began and observed the residence burn. Ms. Chapman is an elder who suffers from panic attacks and “freezes up” when talking in front of people;
• Solomon Begg – Mr. Begg is 73 years old, the common law spouse of Ms. Chapman and the step-father of Geraldine Chapman. Mr. Begg attended the scene of the fire shortly after it began and observed the residence burn. He is familiar with the layout of the residence at 854 Macheetao Road, including the porch area. Mr. Begg is an elder who uses a cane when walking.
• William Cromarty – Mr. Cromarty is 77 years old. He first learned of the fire at approximately 8:30 a.m. on May 2, 2019. He is familiar with the accused and advised police that the accused did not attend his home during the morning of May 2, 2019. Mr. Cromarty is an elder who “uses” a wheelchair. The record is not clear as to whether he is confined to a wheelchair.
• Alfred Beardy – Mr. Beardy is 30 years old and the brother-in-law of Geraldine Chapman. He resides a couple of houses down from 854 Macheetao Road. He attended the scene of the fire very shortly after it began and, together with Creighton Beardy and Wayne Moskotaywenene, tried unsuccessfully to get into the burning home. Mr. Beardy advised police that he did not see the accused at the scene of the fire. Mr. Beardy “never” leaves the community of KI. He assists in caring for Mr. Begg and Ms. Chapman. He has an 11-year old daughter who would be required to travel with him if he left the community. He also has a family dog.
• Thyra Chapman - Ms. Chapman is 23 years old and the daughter of Geraldine Chapman. She was residing in the residence at 854 Macheetao Road at the time of the fire but was not in the community on May 1/2, 2019. Ms. Chapman’s evidence would include the layout of the residence and the attached porch and the nature of the contents of the porch prior to the fire. Ms. Chapman suffers from anxiety when thinking about being in the same room as the accused.
• Kristina Winter – Ms. Winter is 33 years old and the common law spouse of Alfred Beardy. She followed her spouse to the scene of the fire. Once there, Ms. Winter saw her spouse, Creighton Beardy and Wayne Moskotaywenene close to the southwest window of the residence, “yelling inside for the kids and shouting out Archie McKay’s name”. When asked by police if she saw the accused at the scene of the fire, Ms. Winter replied “maybe, I thought I may have seen him after I went home. I looked out the window and may have seen him. I’m not sure what time it would have been but it was already day light. Archie was riding a bike up towards the store [adjacent to 854 Macheetao Road]. Coming from Macheetao Road and heading east”. Ms. Winter can also provide evidence as to the layout and contents of the porch attached to the 854 Macheetao Road residence. Ms. Winter suffers from anxiety which is exacerbated when she travels outside of her home community.
• Tiana Meekis – Ms. Meekis is 27 years old. She resided next door to the scene of the fire. She last saw Geraldine Chapman at approximately 10:00 p.m. on May 1, 2019. Ms. Meekis told police that Ms. Chapman and the accused were putting a new freezer in a store which Ms. Chapman operated close to her residence. On May 2, 2019, she heard Creighton Beardy at the scene of the fire, “yelling. He was trying to go in there [the residence at 854 Macheetao Road]…there was too much smoke. It was only burning from the porch at first”. Ms. Meekis then went outside and to the scene of the fire. She told the police of the various people she saw at the fire. Ms. Meekis did not see the accused at the fire. Ms. Meekis is also familiar with the layout of the residence and porch at 854 Macheetao Road and the contents of the porch. Ms. Meekis advised police that it would be “hard” to travel to Kenora for trial.
• Candace Crowe – Ms. Crowe is 37 years old. She attended the scene of the fire very shortly after it began. Ms. Crowe observed Wayne Moskotayenene and Creighton Beardy “running back and forth at the front and they were yelling Geraldine’s name”. When asked by police if she noticed anyone else at the scene of the fire, she listed several people. When asked by police if she knew Archie McKay, she replied, “Ya. I did not see him at all that night though”. Ms. Crowe is also familiar with the layout and contents of the porch at 854 Macheetao Road. Ms. Crowe advised police that she would have “a hard time” getting to Kenora for trial.
• Jennaya Shoomin – Ms. Shoomin is 15 years old and was a friend of Angel McKay, one of the children who died in the fire. She was at the residence at 854 Macheetao Road during the evening of May 1, 2019. Ms. Shoomin attends school. Attendance in Kenora for trial would require her to miss school. She would also require an adult escort when travelling to and from Kenora and while in Kenora.
• Karla Cutfeet – Ms. Cutfeet is 15 years old and was also a friend of Angel McKay. She was also at the residence at 854 Macheetao Road during the evening of May 1, 2019. Ms. Cutfeet attends school. Attendance in Kenora for trial would require her to miss school. She would also require an adult escort when travelling to and from Kenora and while in Kenora.

[11] The Crown’s application record includes copies of the notebook entries of D/C Cain from February 8, 2023, and March 13, 2023. D/C Cain was tasked with attending upon certain Crown witnesses to inquire about their possible remote testimony at trial. D/C Cain’s February 8, 2023, notebook entries (paraphrased) include the following notations:

1. William Cromarty residence. He is elderly and in a wheelchair. Advise he will be required in court. I ask if it would be easier to testify through Zoom since in a wheelchair, won’t have to fly to Kenora and he agrees;
2. Speak with Tiana Meekis. Advise that court scheduled for November 6, 2023, for four weeks. Ask if she would be willing to come to Kenora for it. Would be hard to get there. Advise that can do it through Zoom on computer, and she advises that would be easier;
3. Locate Candace Crowe. Speak with her regarding testifying in court in Kenora in November. She advises that she will have a hard time getting there. I advise that she can testify through Zoom and she advises that she can do that;
4. Speak with Jennaya Shoomin at school. Advise her that she will be subpoenaed to court to testify. Court will be in Kenora. She is quiet and does not respond much. I ask her if she will be in school then and she says yes. I ask her if it would be easier to testify through Zoom rather than going to Kenora and she says yes;
5. Recognize Karla Cutfeet walking by. I advise that I am following up with people regarding testifying in court in November. She will be required to testify. I ask if she will be in school and she says yes. I ask if it would be hard to go to Kenora at that time and she agrees. Speak with Betty Cutfeet, Karla’s mom. Explain court. She agrees would be hard to get to Kenora;
6. Speak with Solomon Begg. He has trouble walking, with cane. I advise that court for Archie McKay will be in November for 4 weeks. I advise that he will be required to testify. He says he doesn’t know nothing. I say that it is in Kenora and it looks like you have mobility issues and ask if it would be hard to get to Kenora and he agrees. I tell him that he can testify through Zoom and ask if that would be okay and he agrees;
7. Meet with Kristina Winter and Bella Chapman. Explain court in November. They say they don’t want to go to Kenora. Advise can have Zoom court set up for them, and they advise they would be okay with that.

[12] D/C Cain’s March 13, 2023, notebook entries (paraphrased) include the following:

1. Speak to Kristina Winter by telephone. I advise that I will need to know the reasons beyond it will be hard to go to Kenora to testify. She advises that she has bad anxiety and it gets worse when she travels outside of the community. I ask her how she would do inside a courtroom and she advises that would make it worse. I ask her if it would be better if she could testify from her community on video and she says yes;
2. I then ask Kristina Winter about Bella Chapman. She says that Bella Chapman has panic attacks when she leaves her home and is in front of groups of people, and she freezes up if she talks in front of people. I ask her how Bella would do in court and she advises that it would make it worse;
3. I then ask to speak to Alfred Beardy and the phone is handed to him. Alfred says that he wouldn’t be able to come to Kenora because he has to look after his dog. He also helps to care for Bella and Solomon and his 11-year old Lucille;
4. I ask that Alfred Beardy pass the phone to Thyra [Chapman]. I ask her how she feels about coming to Kenora for the trial and she says that she will have a hard time there as she would not be able to sit in the same room as Archie [McKay]. She advises that she has a three-month old and that it would be difficult for her to leave her three-month old.

[13] The Crown has filed the affidavit of Barbara Coulson, an Office Administrator employed by the Ministry of Attorney General Office of the Crown Attorney in Dryden in support of its application. Ms. Coulson is regularly required to make transportation arrangements for witnesses from remote northern First Nations to attend base court locations to testify.

[14] Ms. Coulson deposes the following:

• There are no direct flights from KI to Kenora. To fly from KI to Kenora, a witness has to go through Sioux Lookout. There are no direct flights between Sioux Lookout and Kenora. The available flight between Sioux Lookout and Kenora has two scheduled stops and takes a minimum of four hours. Witnesses who reside in KI and who are required to attend court in Kenora generally fly from KI to Sioux Lookout (a 75 minute flight) and take ground transportation (ie. taxi – 3 hours plus) from Sioux Lookout to Kenora;
• She often arranges for witnesses from remote northern First Nations to be transported to base court locations one or two days in advance of the date they are required to testify and to remain in the base court location for a day or more after testifying due to limited transportation options;
• That she has been advised by one of the Assistant Crown Attorneys assigned to this case that Chief and Council of KI First Nation confirmed that the community has recently acquired a Starlink internet connection which provides the Band Office with a reliable internet connection appropriate for videoconferencing;
• That she has been advised that a private room within the Band Office will be made available for witnesses to use for remote testimony in this trial; and
• She is aware of witnesses testifying remotely from KI to Ontario Court of Justice base courts within the Northwest Region and that she is “aware of times this location has been tested and …found to work very well”.

[15] The Crown’s application record contains no evidence about the costs that would be incurred, and by whom, if witnesses from KI were required to testify in person in Kenora.

The Position of the Crown

[16] The Crown submits that the court’s discretion in making an order under s. 714.1 of the Code must be guided by the appropriateness of a particular witness testifying remotely, having regard to all circumstances, including the factors set out in s. 714.1. The Crown submits that remote witness testimony is an increasingly important tool requiring the criminal justice system to evolve in step with technological advances and societal needs.

[17] The Crown contends that the court, when exercising its discretion on this application, must be sensitive to the unique circumstances of Indigenous witnesses from remote First Nation communities and the distrust and disconnect Indigenous individuals continue to experience in relation to the criminal justice system.

[18] The Crown suggests that the evidence of the witnesses that it requests be allowed to testify remotely from KI is necessary to its case but also brief. However, in person testimony would necessarily require these witnesses to endure difficult air and ground transportation in November/early winter in the Northwest Region, to be out of their community and away from family and supports for several days and to reside in hotels in what is essentially a foreign community for them, according to the Crown.

[19] The Crown submits that flexibility within the criminal justice system, including the courts availing themselves of technological advances to alleviate the need for witnesses from remote communities being taken out of their communities and away from families and support systems to testify at base court locations, can lessen the traditionally negative impact of the justice system on these participants, consistent with the concept of reconciliation, while at the same time not compromising the accused’s right to a fair trial.

[20] The Crown submits that s. 714.1 of the Code does not require that it be impossible for a witness to testify in person. The Crown submits that all that is required is a cogent reason. The Crown further submits that the consideration of the costs that would be incurred if the witness were required to appear personally goes beyond the monetary cost. The Crown contends that disruptions and impacts to family, children, dependents and school attendance are also relevant “cost” considerations.

[21] The Crown acknowledges that remote witness testimony cannot be allowed to compromise the integrity of the trial process or the accused’s right to a fair trial. Therefore, the suitability of the proposed location from which a witness is to testify remotely must be considered. The Crown submits that KI has a reliable internet connection suitable for video testimony and that a private office within the band office will be made available for trial. The Crown submits that police officers and employees of the Victim/Witness Program will be present during any remote testimony, the former to enforce court directives and the latter to support vulnerable witnesses.

[22] The Crown submits that if appropriate having regard to all circumstances, including the factors set out in s. 714.1 of the Code, and if it does not negatively impact trial fairness or the open courts principle, testimony by video technology should be permitted for the witnesses sought by the Crown, subject to any conditions imposed by this court.

The Position of the Accused

[23] The accused submits that the criminal justice system operates on the presumption that witnesses testify in person unless there is a substantive reason to permit testimony remotely by video pursuant to s. 714.1 of the Code.

[24] The accused submits that he stands charged with five counts of first-degree murder relating to the fire at 854 Macheetao Road in KI on May 2, 2019. The accused notes that the Crown has indicated that it will advance three alternate “routes” to first-degree murder, as set out in the introduction to these Reasons.

[25] The latter two “routes” to first-degree murder that the Crown will advance are generally referred to as “constructive” first-degree murder, the Crown theory being that the accused caused the death of Geraldine Chapman and the four children by setting the fire on May 2, 2019, while committing or attempting to commit the offences of forcible confinement or criminal harassment.

[26] The accused describes the Crown’s theory of the case as “novel” but hastens to add that the accused could not be in a situation of higher criminal jeopardy. The accused submits that the cause of the fire remains unknown and will very much be in issue at trial. The accused further submits that the credibility of a great number of Crown witnesses will be challenged at trial, and that he has not had the benefit of a preliminary inquiry due to the fact that the indictment was preferred. The accused contends that the Crown’s application to have 10 witnesses testify remotely at this jury trial must be considered in the context of this factual backdrop.

[27] The accused submits that on this application it is incumbent on the Crown to provide the court with a proper evidentiary record which includes evidence relevant to the factors listed in s. 714.1 of the Code, to enable the court to determine if it is “appropriate” to allow any of the witnesses to testify at trial remotely by video from KI.

[28] The accused submits that the law is clear that a witness should not be allowed to testify by video simply because a witness prefers to do so. The accused acknowledges that the personal circumstances of a witness can be a significant factor under s. 714.1 of the Code. However, mere inconvenience caused by a witness having to travel to attend court is, in and of itself, insufficient to justify an order permitting remote testimony, according to the accused.

[29] The accused submits that there is no evidentiary basis provided by the Crown to indicate that any of the witnesses whom it seeks to have testify remotely have actually expressed specific concerns about doing so, as deposed to by Ms. Coulson in her affidavit. The accused notes that the witnesses were contacted by D/C Cain on February 8, 2023, and again on March 13, 2023, specifically to attempt to establish an evidentiary foundation for this application.

[30] The accused notes as follows in regard to D/C Cain’s contact with the witnesses on February 8, 2023:

• William Cromarty was asked if it would be easier to testify through Zoom;
• Candace Crowe advises she will have a hard time getting there;
• Jennaya Shoomin was asked, given that she will be in school in November 2023, if it would be easier to testify remotely rather than going to Kenora;
• Karla Cutfeet agrees, given that she will be in school in November 2023, that it would be hard to get to Kenora in November for trial;
• Solomon Begg agrees it would be hard to get to Kenora given his mobility issues; and
• Kristina Winter and Bella Chapman say they don’t want to go to Kenora.

[31] The accused further notes as follows, in regard to D/C Cain’s March 13, 2023, contact with witnesses:

• Kristina Winter has bad anxiety that is worse when she is out of KI;
• Kristina Winter tells D/C Cain that Bella Chapman has panic attacks and freezes in front of groups of people.

[32] The accused submits that the limited and questionable “evidence” provided by D/C Cain is insufficient to allow the court to properly assess the appropriateness of allowing any of these witnesses to testify at trial remotely, in the circumstances of this case and the considerations set out in s. 714.1 of the Code.

[33] The accused expresses concern about the suitability of witnesses testifying from the Band Office at KI. The accused submits that there would be little or no effective supervision of these witnesses to ensure that they do not discuss their proposed evidence with each other.

[34] The accused also submits that the fact that this is a jury trial in which the credibility of a great number of Crown witnesses will be in issue is a crucial factor on this application. The accused suggests that possible – if not probable – technical issues, such as the audio and video feeds being out of sync and video feeds “freezing”, could be very distracting for a jury of lay people unaccustomed to observing witness testimony by video.

[35] The accused also notes that juries are specifically instructed to consider the demeanour of a witness to assist in determining if that witness is being truthful. Witness boxes are generally situated close to where a jury is seated specifically to enhance jurors’ ability to see and hear witnesses, according to the accused. The accused submits that video testimony diminishes jurors’ ability to assess demeanour and that the Crown’s suggested use of the screen share function, when documents are put to a witness, further diminishes it even further because it shrinks screen size.

[36] The accused submits that potential technical issues and the jurors’ compromised ability to assess demeanour and credibility are crucial considerations on this application, given the nature and seriousness of the offences charged.

[37] The accused submits that the Crown has failed to discharge its onus on this application and that the application should be dismissed.

Discussion

[38] Section 714.1 of the Criminal Code provides as follows:

A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including;

(a) The location and personal circumstances of the witness; (b) The costs that would be incurred if the witness were to appear personally; (c) The nature of the witness’ anticipated evidence; (d) The suitability of the location from where the witness will give evidence; (e) The accused’s right to a fair and public hearing; (f) The nature and seriousness of the offence; and (g) Any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference

[39] The exercise of my discretion on this application must take into account all the circumstances of this case, including the factors listed in s. 714.1 of the Code. In my view, the analysis as to whether it “would be appropriate” to allow one or more Crown witnesses to testify remotely from KI must begin with the fact that the accused is charged with five counts of first-degree murder and is to be tried before a jury.

[40] Having now experienced several years of videoconferencing in criminal and civil matters as a result of the pandemic, I accept the submission of the accused that his right to a fair trial is capable of being compromised due to the very nature of video testimony and probable technical limitations and glitches. I note that the Crown has provided no evidence as to what, if any, technical support is available in the remote First Nation community of KI should technical problems arise during the video testimony of one or more witnesses. These issues also potentially impact the court’s ability to manage this trial effectively and efficiently which, in my view, falls within the circumstances to be considered under s. 714.1 of the Code.

[41] Also prominent in the analysis is the Crown’s theory of the case, which includes but is not limited to, an allegation of constructive first-degree murder pursuant to s. 231(6) of the Code, which provides that murder is first-degree murder when the death is caused while the accused is committing or attempting to commit the offence of criminal harassment. As noted earlier, the Crown’s theory is that the accused murdered the victims by setting fire to Geraldine Chapman’s home. The Crown will ask the jury to find the accused murdered the victims in the course of criminally harassing Geraldine Chapman. The court will hear the Crown’s prior discreditable conduct application, outlining alleged incidents that may support the underlying offence of criminal harassment, in advance of trial. I accept the submission of the accused that the cause of the fire will be a live issue at trial and that the credibility of many witnesses will be challenged at trial, presumably in relation to the issue of criminal harassment and the cause of the fire.

[42] I wish to point out that my analysis is hampered by the limited evidentiary record filed on this application, primarily as it relates to the personal circumstances of the witnesses and the nature of the witnesses’ anticipated evidence. I am cognizant of the fact that each of these witnesses would have to travel from their home community to Kenora for trial, that such a journey involves difficult travel and overnight stays in Kenora and that none of these witnesses wants to do so for this trial.

[43] Bella Chapman is the 72-year old mother of Geraldine Chapman. She attended the scene of the fire shortly after it began. She is described by the Crown as a “peripheral” witness with no further detail. She is alleged to suffer from panic attacks.

[44] Solomon Begg is the 73-year old common law spouse of Bella Chapman. Mr. Begg has mobility issues. He attended the scene of the fire shortly after it began. Mr. Begg is familiar with the layout of the residence at 854 Macheetao Road, including the porch area where the fire is alleged to have started.

[45] In my view, it is not appropriate that these witnesses be allowed to testify remotely. It is reasonable to assume that Ms. Chapman would provide some evidence on the issue of the accused’s alleged criminal harassment of Geraldine Chapman and that Mr. Begg would provide some evidence as to what was in the porch area of Geraldine Chapman’s residence at the time of the fire, as it relates to the cause of the fire. Both are very much live issues in this case and the evidence of these witnesses, and defence counsel’s ability to cross-examine them, must not be compromised by the limitations of video testimony or potential technical issues.

[46] William Cromarty is 77 years old and “uses” a wheelchair. His evidence at trial will apparently be limited to stating that the accused did not attend his residence during the morning of May 2, 2019. In my view, given the limited nature of his evidence and his mobility issues, it is appropriate that Mr. Cromarty be allowed to testify at trial by video from KI.

[47] Alfred Beardy is 30 years old and has an 11-year old daughter and a family dog. He attended the scene of the fire very shortly after it began. His evidence will apparently be limited to testifying that he did not see the accused at the scene of the fire. Given the limited nature of his evidence, it is appropriate that he be allowed to testify remotely from KI.

[48] Thyra Chapman is the 23-year old daughter of Geraldine Chapman. She was out of the community at the time of the fire. The Crown has submitted that Ms. Chapman’s evidence would include the layout of the porch and the contents of the porch at the time of the fire. The accused describes Ms. Chapman as a “crucial witness”. I assume this is due to the likelihood that she will provide evidence in support of the Crown’s theory that the accused was criminally harassing Geraldine Chapman prior to the date of the fire, although this is not included in the Crown’s material on this application.

[49] Given the nature of this witness’ anticipated evidence and the accused’s characterization of her as a crucial witness, which I accept at face value, it is not appropriate that she testify at trial remotely from KI.

[50] Kristina Winter is the 33-year-old spouse of Alfred Beardy. She followed Alfred Beardy to the scene of the fire. Ms. Winter’s evidence will include testimony of having possibly seen the accused near the scene of the fire at some point during the morning of May 2, 2019. She will also provide evidence about the layout and contents of the porch at 854 Macheetao Road.

[51] In my view, Ms. Winter’s anticipated evidence makes it inappropriate for her to testify at trial remotely by video.

[52] Tiana Meekis is the 27-year-old next door neighbour to Geraldine Chapman. She apparently observed Geraldine Chapman and the accused the night before the fire and attended the scene of the fire the next morning. She is also familiar with the residence and porch at 854 Macheetao Road. There is no compelling reason provided as to why she cannot attend this trial in person and it is ordered that she do so.

[53] Candace Crowe is 37 years old. She attended the scene of the fire and apparently did not see the accused at the scene. Once again, there is no compelling reason provided as to why she cannot attend this trial in person and she is ordered to do so.

[54] Jennaya Shoomin and Karla Cutfeet are 15-year old students who were friends of Angel McKay, one of the children who died in the fire. Both were at 854 Macheetao Road during the evening of May 1, 2019. Attendance in Kenora for trial would require both of these witnesses to miss several days of school. They would also require an adult escort or escorts during the time they were away from KI. The nature of the anticipated evidence of these two witnesses is not clear from the record. I will assume that they are peripheral witnesses. In my view, given their age and school attendance, it is preferable that they be allowed to testify at trial remotely by video from KI.

[55] The Crown’s application is granted, in part and conditionally. William Cromarty, Alfred Beardy, Jennaya Shoomin and Karla Cutfeet shall testify at this trial remotely by video from KI. This order is conditional on the following:

1. Confirmation in advance of trial that the internet video link between KI and the Superior Court of Justice in Kenora is stable and reliable;
2. Confirmation in advance of trial that anticipated trial exhibits (such as documents, photos and videos) can be shared and viewed;
3. Confirmation in advance of trial that Chief and Council of KI will provide a secure, private room from which these witnesses will testify;
4. Confirmation in advance of trial that technical support will be immediately available during all remote testimony;
5. Confirmation in advance of trial that adequate police officers will be present at the KI Band Office during the video testimony of these witnesses to enforce any orders of the court relating to witnesses and/or their testimony;
6. Confirmation in advance of trial respecting the manner in which the oath or affirmation will be administered, including whether an eagle feather or book of faith will be made available to the witness;
7. Confirmation in advance of trial that an accredited court interpreter will be available in KI for those witnesses who require interpretation services
8. Clear and consistent audio and video quality during all remote testimony at trial; and
9. That the evidence of the witnesses whom I have ordered may testify by video is consistent with the evidence which the Crown has suggested, in its Application Record, these witnesses will give at trial.

[56] Conditions numbered 1-7 and the means to satisfy them, shall be discussed at the next case conference held in this matter. Conditions numbered 8 and 9 will be monitored during the trial. If video quality is substandard or inconsistent, the Crown will be required to arrange to have these witnesses brought to Kenora to testify in person. On issues 8 and 9, I will consider input from counsel and the court reporter.

[57] Items 1-7 must be completed by the Crown no later than October 23, 2023, with confirmation provided to my office in writing. I may be notified if any issues arise in the interim.

“Original signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: June 23, 2023