COURT FILE NO.: CR-22-25
DATE: 2023-12-04
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
- and -
Archie McKay
R. Amy and A. Anderson, for the Accused
Accused
HEARD: November 29, 2023, at Kenora, Ontario
Mr. Justice J.S. Fregeau
Endorsement on Section 714.1 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 (“KI”) on May 2, 2019 (the “fire”). Tragically, Geraldine Chapman, the accused’s common law spouse, and four young children died in the fire.
[2] KI is a remote, “fly-in” First Nations community located approximately 550 km northeast of Kenora. KI is located within the judicial district of Kenora. The trial began in Kenora on November 6, 2023, and was originally scheduled for four weeks. It will not be completed in 2023 and the court is currently in the process of scheduling an additional four weeks trial time in 2024.
[3] On this application, the Crown requests an order pursuant to s. 714.1 of the Criminal Code permitting the virtual testimony of the following Crown witnesses from either their home communities, residences, or places of employment:
- Bella Chapman – resides in KI;
- Dr. A. Keng – resides and is employed in Toronto;
- Dr. J. Wieskopf – resides and is employed in Toronto;
- Dr. R. Jaunkalns – employed in Toronto;
- Dr. C. Kepron – employed and resides in Ottawa;
- Dr. Fish – employed in Toronto.
[4] For Ms. Chapman to testify in person, she would have to travel, with a support person, from KI to Kenora and return. There are no direct flights between Kenora and KI. To travel from KI to Kenora, one must fly from KI to Sioux Lookout and either take ground transportation between Sioux Lookout and Kenora (three hours plus) or fly (indirect, two stops, minimum of four hours). The round trip, including attendance at trial, would take a minimum of three to four days, subject to winter weather and travel conditions.
[5] Witnesses who reside in Toronto or Ottawa and who are required to testify in person at this trial would have to fly to Winnipeg and take ground transportation from Winnipeg to Kenora (three hours) and return. The round trip, including attendance at trial, would take a minimum of three days, subject to winter weather and travel conditions.
[6] The relevant personal circumstances of these witnesses and the nature of their anticipated evidence is as follows:
Bella Chapman
[7] Ms. Chapman, 73 years of age, is the mother of Geraldine Chapman and the grandmother of the four young children that died in the fire. As noted, she resides in KI and would have to be away from her home community for a minimum of three days, and probably longer, to attend trial in Kenora and testify in person.
[8] Ms. Chapman suffered a heart attack on November 2, 2019, and was subsequently diagnosed with Takotsubo Cardiomyopathy (Broken Heart Syndrome) related to the loss of her daughter and grandchildren in the fire. She also has a history of PTSD and hypertension.
[9] Ms. Chapman attended for a follow-up examination as to her heart condition on February 25, 2020. At that time, it was noted that Ms. Chapman was “doing well, both clinically and subjectively”. It was further noted that further follow-up appointments were not required.
[10] However, on November 11, 2023, Ms. Chapman was brought to the KI nursing station by her husband and sister who reported that Ms. Chapman was suffering a panic attack and was hyperventilating, apparently related to having to travel out of the community in order to testify in person at this trial. When examined on that date, it was noted that Ms. Chapman was “in acute panic/frightened state in moderate distress. Hyperventilating. Unable to console or keep calm. Appears restless and upset”. Ms. Chapman was medicated, monitored at the nursing station and discharged home in satisfactory condition that evening.
[11] Ms. Chapman was the subject of a previous s. 714.1 application. In that application, the Crown described Ms. Chapman as a “peripheral witness” with no further detail. I dismissed the Crown’s earlier request that Ms. Chapman be allowed to testify remotely from KI. In the absence of any detail as to Ms. Chapman’s anticipated evidence, I assumed that her evidence at trial would include testimony on the issue of the accused’s alleged criminal harassment of Geraldine Chapman in the years prior to the fire, a crucial issue in this case.
[12] The Crown has now provided more detailed and recent medical information about Ms. Chapman and has also clarified that her anticipated evidence at trial will be limited to her observations when she attended the scene of the fire early on the morning of May 2, 2019.
Dr. A. Keng, Dr. J. Wieskopf, Dr. R. Jaunkalns
[13] Dr. Keng is a psychiatrist (sub-specialty Geriatric Psychiatry) employed at Baycrest Hospital in Toronto. Dr. Keng assessed the accused at Sunnybrook Health Sciences Centre in Toronto on May 29 and 30, 2019.
[14] Dr. Weiskopf is a psychiatrist (sub-specialty Pain Psychiatry) employed at Toronto General Hospital. He also assessed the accused on May 29, 2019.
[15] Dr. Jaunkalns is a psychiatrist and the Head of the Medical Psychiatry Program at Sunnybrook Hospital in Toronto. He also assessed the accused on May 29, 2019.
[16] The Crown has provided a report from each of these psychiatrists summarizing their May 2019 assessments of the accused. It is anticipated that these witnesses will testify about incriminating utterances the accused allegedly made during their assessments of him. However, it is unclear from the doctors’ reports whether these utterances were made directly to one, two, all three, or to any of these witnesses.
[17] The Crown advises the court that these witnesses have all told the Crown that they are “not able to speak to the police or the Crown” to clarify their anticipated evidence, apparently due to medical/legal restrictions.
Dr. C. Kepron
[18] Dr. Kepron is a Forensic Pathologist who resides and works in Ottawa. Dr. Kepron will be called at this trial as an expert witness. Dr. Kepron has reviewed a case synopsis and medical records of the accused from the KI Nursing Station, the Sioux Lookout Hospital and Sunnybrook Hospital. Dr. Kepron has also examined 39 photographs of the burn injuries apparent on the hand and face of the accused on May 2, 2019. On consent, she will be qualified to provide expert evidence about the causes of burns and injuries to human skin.
[19] It is anticipated that Dr. Kepron will be asked to provide her opinion as to the burns and related burn injuries suffered by the accused and whether these burns and injuries are consistent with statements made by the accused as to how he suffered the burns and injuries.
Dr. J. Fish
[20] Dr. Fish is a plastic surgeon and the Medical Director Burn Program, Plastic Surgery, The Hospital for Sick Children in Toronto. Dr. Fish has reviewed essentially the same background material as Dr. Kepron. The Crown will apply to have Dr. Fish declared an expert witness allowed to provide opinion evidence about the cause of burns and injuries to human skin. I am advised that this will be opposed due to apparent neutrality issues.
[21] If Dr. Fish is qualified as sought by the Crown, it is anticipated that he will be asked to opine on the same issues as Dr. Kepron. It is further anticipated that Dr. Kepron and/or Dr. Fish will make extensive reference to photographs and other visual aids during direct and cross-examination.
[22] It is not in dispute that Drs. Keng, Weiskopf, Jaunkalns, Kepron and Fish are all extremely busy medical professionals. It is also not in dispute that requiring these individuals to travel to Kenora to testify in this trial would require them to be away from their practices and patients for a minimum of three days, possibly longer. It is also not in issue that these witnesses are all able to testify from a private, secure location with a stable and reliable internet location.
[23] Finally, the accused is facing extremely serious charges resulting from a lengthy and complex investigation into the fire and the deaths of Ms. Chapman and four young children.
The Crown’s Position
[24] The Crown renews its s. 714.1 application for Bella Chapman because of the very recent health issues, directly related to her anticipated attendance at this trial, that she has suffered. The Crown has also undertaken to restrict Ms. Chapman’s testimony to observations she did or did not make while at the scene of the fire during the morning of May 2, 2019.
[25] The Crown acknowledges that it does not know exactly what the evidence of Drs. Keng, Weiskopf and Jaunkalns will be. The Crown is calling each of these psychiatrists because of alleged incriminating utterances made by the accused. The Crown acknowledges that it does not know, and that it is unable to determine, to whom the alleged utterances were made, and if they were in fact made directly to any of these three psychiatrists.
[26] The Crown submits that the evidence of Drs. Kepron and Fish can be effectively communicated through remote testimony without compromising trial fairness. The Crown contends that the court must be cognizant of and open to technological advances such as the remote testimony of witnesses in situations of medical professionals, particularly when the medical system, provincially and nationally, is in the midst of a staffing crisis.
The Accused’s Position
[27] Given Ms. Chapman’s most recent health issues and the Crown’s undertaking as to the extent of the evidence that will be sought from her when she testifies, the accused does not strenuously oppose Ms. Chapman testifying remotely from her home community of KI. The accused submits that if it is ordered that she be allowed to do so, the order should specifically state that it is premised on the Crown’s undertaking as to the nature of her evidence.
[28] The accused submits that the “nature of the witness’ anticipated evidence” is a factor that s. 714.1 of the Code requires a court to consider when deciding whether a witness should be allowed to testify remotely. The accused contends that because of Drs. Keng, Wieskopf and Jaunkalns refusal to talk to the police or the Crown, we simply do not know what their evidence will be.
[29] The accused understands in general terms what the Crown hopes to hear from these witnesses, namely that the accused made inconsistent utterances or utterances inconsistent with other evidence to them. The accused contends that if such evidence is forthcoming, it will be used by the Crown to infer guilt or to argue consciousness of guilt. The accused submits that the materiality of these witness’ evidence is therefore very high. The accused suggests that there may be credibility and/or reliability issues with these witnesses.
[30] In these circumstances, the accused submits that the court should err on the side of caution and defer to the presumptive rule that witnesses in a criminal trial are required to testify in person.
[31] The accused submits that the materiality of the evidence of Dr. Kepron and/or Fish is very high and that their evidence on direct and cross-examination will rely heavily on numerous photographs of the accused. The accused submits that it will be physically difficult to cross-examine an expert relying on numerous photographs to support their expert opinions if that expert witness is testifying remotely.
[32] The accused notes that there are no unusual circumstances, such as personal medical issues, advanced in support of the Crown’s request that these medical professionals be allowed to testify remotely. The accused submits that the Crown’s position distills down to the inconvenience of busy medical professionals being required to travel long distances to provide evidence in a criminal trial.
[33] The accused submits, however, that these medical professionals can and do arrange to be away from their practices for vacation and professional development. The accused contends they can also do so, on appropriate notice, to testify in the criminal trial of an accused charged with five counts of first-degree murder. The accused submits that trial fairness should not be sacrificed for the sake of the convenience of expert witnesses.
Discussion
[34] Section 714.1 of the Criminal Code states that a court may order that a witness in Canada be allowed to testify remotely 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 in person;
(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.
[35] It is not in dispute that the presumptive rule is that witnesses in a criminal trial are required to testify in person in the courtroom in the presence of the accused, the public and the trier of fact. Section 714.1 of the Code provides an exception to the general, presumptive rule and provides a non-exhaustive list of factors that a court should consider when exercising its discretion.
[36] In R. v. S.D.L., 2017 NSCA 58, at para. 32, the Nova Scotia Court of Appeal provided some guidance regarding the exercise of a court’s discretion on a s. 714.1 application:
As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggest, in appropriate circumstances, it can enhance access to justice;
However, when credibility is an issue, the court should authorize testimony via s. 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice;
When the credibility of the complainant is at stake, the requisite exceptional circumstances must be even more compelling;
The more significant or complex the proposed video evidence, the more guarded the court should be;
When credibility will not be an issue, the test should be on a balance of convenience;
Barring unusual circumstances, there should be an evidentiary foundation for the request;
When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process.
[37] Bella Chapman is 73 years old and suffered a heart attack in 2019. Approximately one month ago she was medically evaluated as a result of suffering a panic attack in anticipation of having to travel out of her home community to testify at this trial. Upon being examined, it was noted that Ms. Chapman was “in acute panic/frightened state in moderate distress. Hyperventilating.”
[38] I accept that it would be difficult, stressful, and potentially injurious to Ms. Chapman’s health and medical condition to require her to travel from KI to testify in person at this trial. The Crown indicates that Ms. Chapman’s evidence will be limited to her observations while at the scene of the fire on the morning of May 2, 2019. I anticipate that her evidence will be neither significant nor complex.
[39] Having regard to all the circumstances relevant to this witness, I order that Ms. Chapman shall testify remotely at this trial remotely from KI on the condition that her evidence is limited as indicated by the Crown.
[40] Neither the Crown or defence counsel know exactly what the evidence of Drs. Keng, Wieskopf or Jaunkalns will be. It is therefore impossible to gauge how significant their evidence may or may not be. The rationale for the request that these proposed witnesses be allowed to testify remotely amounts to avoiding inconvenience for busy medical professionals.
[41] In my view, given the seriousness of the charges the accused is facing and the inability to determine the significance of the evidence of these witnesses, the presumptive rule of in person testimony should not be displaced for these witnesses. The request that Drs. Keng, Wieskopf and Jaunkalns be allowed to testify remotely is dismissed.
[42] I accept the submission of the accused that the materiality of proposed evidence of Drs. Kepron and Fish is high. These witnesses will be called as “burn experts” and asked to opine on burn injuries apparent on the accused on the day of the fire. It is anticipated that they will be asked to opine on the consistency of the accused’s injuries in relation to how he told police the injuries were caused. The doctors’ opinions are based, in part, on numerous photos of the accused taken by police.
[43] It is reasonable to assume that the evidence of the Crown “burn experts” will be vigorously challenged by the accused. I accept that it may be physically difficult for counsel to effectively cross-examine the Crown’s “burn experts” when the foundation for their opinions is numerous photographs, and they testify remotely. Their evidence will be significant and complex. It is crucial to the accused’s fair trial rights that it be thoroughly and effectively tested and communicated to the trier of fact.
[44] I am cognizant of the very busy schedules of these medical professionals and of the inconvenience that will be caused to them, their patients and their colleagues if they are required to travel to Kenora to testify at this trial. However, considering all the circumstances, and in particular the seriousness of the charges the accused is facing and the nature of the anticipated evidence of these witnesses, I find that it is not appropriate that Drs. Kepron and Fish be allowed to testify remotely at this trial.
“Original signed by”
The Hon. Mr. Justice J.S. Fregeau
Released: December 4, 2023
COURT FILE NO.: CR-22-25
DATE: 2023-12-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Crown
- and –
Archie McKay
Accused
ENDORSEMENT ON SECTION 714.1 APPLICATION
Fregeau J.
Released: December 4, 2023