A man convicted of brutal sexual assaults on his girlfriend in a Burnaby tent and a White Rock lean-to has lost an appeal claiming anti-COVID accommodations allowed at his trial prejudiced the outcome.
J.L.K., 37, and S.M., who cannot be named because of a publication ban, were involved in a “dysfunctional” intimate relationship “marked by heavy drug use, periods of homelessness, and some illegal activities and violence,” according to a B.C. Court of Appeals decision last week.
In May 2021, J.L.K. was convicted of 17 offences, including sexual assault, assault, unlawful confinement, obstruction of justice, threatening, harassment and breach of conditions.
One set of charges was connected to a violent sexual assault in a Burnaby tent in August 2019 after S.M. refused to go to a store and steal something at J.L.K.’s direction, according to S.M.’s testimony.
A second set of charges was related to another violent sexual assault in a White Rock lean-to that left S.M. with a broken sternum.
J.L.K. was also convicted of breaching his bail conditions by contacting S.M. and later harassing her with “hundreds of phone calls” from jail that made her fear for her safety, according to the ruling.
But when J.L.K.’s trial started in February 2021, S.M. wasn’t cooperating, and Crown prosecutor Mark Myhre didn’t know where she was. She hadn’t come to court on the opening day despite a subpoena.
The trial went on with other witnesses until five days later, when Myhre said S.M. had been contacted, but she had COVID and was isolating at a hotel – Myhre just didn’t know where.
He applied to the court for permission for S.M. to testify remotely via Microsoft Teams.
“Your Honour, if we don’t do this by video, we won’t have [S.M.] testifying today; we’ll have to delay this trial. [J.L.K.] will be sitting in custody until [S.M.]’s out of COVID quarantine and can attend court in some fashion,” Myhre said.
B.C. provincial court Judge Laura Bakan allowed the remote testimony to go ahead under a number of conditions.
From the start, though, S.M.’s testimony was beset by technological problems and other interruptions.
During his appeal, J.L.K.’s lawyer, David Ferguson, brought up 33 different examples, including times when the judge and lawyers commented on the poor quality of the audio or visual feeds, times S.M. couldn’t access emailed exhibits on her tablet or phone, times when the court’s recording system was having trouble picking up S.M.’s voice and times S.M.’s testimony was interrupted by phone calls.
The problems were illustrated by an excerpt from the transcript of S.M.’s testimony.
Q You just stated that you were angry with (J.L.K.) every day. Is that right?
A [CCTV/inaudible]. Yeah.
Q And then you say that –
A [CCTV/inaudible].
Q Sorry, what was that, [S.M.]?
A [CCTV/inaudible].
Q And on the day that you got into a fight with the two gentlemen on the beach, you were using drugs. Isn't that right?
A [CCTV/inaudible] that day. [CCTV/inaudible].
Q I'm unable to make out anything.
Judge: I'm not hearing this.
Clerk: I believe it's a wi-fi connection issue, Your Honour. The screen has lost visual.
Judge: Yes.
A [CCTV/inaudible].
Judge: Is your battery running out? Is the battery –
Defence lawyer: Sorry, [S.M.], we're – you're becoming very pixelated and also your voice is distorted. It appears the wifi perhaps on your end has just deteriorated for some reason.
A [CCTV/inaudible].
Crown prosecutor: We can see and hear you but it's just all very distorted to the point where we can't really tell what you're saying. We can barely see you.
A [CCTV/inaudible].
Judge: Can you move the – I don't know. Maybe move back a bit and see if that helps.
A [CCTV/inaudible] the charger or something.
Judge: Is there a charger here? If I can stand – I'll – I can stand down and see if we can sort it out.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED)
During his appeal, J.L.K.’s lawyer argued the judge shouldn’t have allowed S.M. to testify remotely and shouldn’t have allowed her testimony to continue given the audio and video problems.
He argued the interruptions undermined the process and adversely impacted his case, according to the ruling.
But the court of appeal unanimously dismissed that argument and J.L.K.’s appeal.
The tech problems might have interrupted the flow of S.M.’s testimony and impacted the “solemnity of the proceeding,” according to the appeals court decision, written by Justice Ronald Skolrood, but he said they had “no impact on the overall fairness of the trial.”
“There is no indication that the parties present in the courtroom misunderstood or misapprehended S.M.’s evidence because of the technological difficulties,” Skolrood wrote.
Skolrood also noted J.L.K.’s lawyer had at no time requested the judge to revisit her decision to allow the Microsoft Teams testimony.
Skolrood said the judge faced a “very difficult situation” and had “appropriately exercised her discretion” in allowing S.M. to testify remotely.
“A significant factor for the judge was the ongoing COVID‑19 pandemic which, as she noted, required courts to 'pivot' and to adapt their processes to account for the challenges presented by the pandemic,” Skolrood wrote.
J.L.K. was sentenced in October 2021 to a total of 7.5 years in prison, minus time served, for the 17 charges, according the Vancouver provincial court registry.
Follow Cornelia Naylor on Twitter @CorNaylor
Email cnaylor@burnabynow.com
