Costs, Covid-19 convince judge to allow video call in drug trial

Health risks and isolation protocols surrounding the Covid-19 pandemic prompted a Territorial Court judge to let RCMP officers testify in an NWT drug trial from their new postings in Nova Scotia.

Judge Donovan Molloy ruled on Friday that the officers “would have to travel a considerable distance, including transferring to northbound flights in Edmonton, a location currently experiencing a significant increase of Covid transmission rates.

“The costs of transporting the officers, current Canadian Covid transmission statistics, current health risks as identified by public health authorities, and current isolation protocols as enforced by public health authorities mitigate in favour of granting this application.”

Micah Wilkes is charged with possessing cocaine for the purposes of trafficking, possession of property obtained by crime, and failing to comply with a bail condition.

Crown prosecutor Levi Karpa asked the court to order the three officers be able to give evidence by video at Wilkes’ trial. 

Defence lawyer Jay Bran opposed, asking that all three officers personally attend court to give evidence.

Brand said he intends to challenge the credibility and reliability of the officers and his ability to do so would be compromised if they are permitted to give evidence by video. 

Wilkes was charged on March 27. The three Crown witnesses have since transferred to postings in Nova Scotia. 

One of the officers was involved in the arrest and search of Wilkes. Another is set to testify about remarks she says she overheard Wilkes make while in RCMP holding cells related to his guilt in the case.

The third officer examined Wilkes’ cellphones and took several hundred photographs of text messages, call logs and images found on one of those phones.

“Mr Wilkes is charged with a serious offence in a jurisdiction whose jurisprudence routinely recognizes the need for deterrence in the form of imprisonment for convicted drug dealers,” said Molloy. “The officers’ evidence will be an important part of the case against him and naturally Mr Wilkes wants to avail of the perceived advantages of cross-examining them in person.

“As for any detriment associated with not being able to see a witness in person, I doubt if a judge’s ability to discern between a confident cad and a tremulous teller of the truth is especially enhanced by being in the same room as the witness. 

“Placing too much emphasis on the appearance or demeanour of a witness is something all judges must guard against.”

Molloy noted a section of the Criminal Code of Canada lists factors courts may consider when assessing whether it would be appropriate to order that a witness give evidence by audio or video.

One factor is the cost of transportation and lodging, which in this case would be significant.

But the present Covid-19 public health restrictions would also pose a problem for the witnesses.

While Molloy assumed the three officers would receive an exemption from the ordinary 14-day isolation imposed by NWT authorities, they would have to self-isolate on their return to Nova Scotia. 

“In future, the Crown should address the potential for exemptions from isolation requirements in the jurisdiction a witness is returning to,” said Molloy.

Since there has been a history of technical issues with courts connecting remotely for hearings, Molloy ordered the Crown to conduct a test session in his court no later than January 9, 2021.