A Penticton judge has ordered a key witness in a Summerland assault trial to fly from Toronto to give testimony instead of allowing them to testify via video.
The trial was delayed after the judge shot down Crown’s request to have one of the alleged victims testify remotely.
On Jan. 4, Penticton Court heard the Crown’s application to have a material witness testify remotely from Toronto, where he moved after the alleged incident in Summerland.
The trial of Landon James Mummery for two counts of assault and one count of uttering threats was originally scheduled to begin on Friday, Jan. 6. The incident allegedly took place in October of 2021.
Defence took issue with Crown’s request for the witness to testify over video. Defence argued a range of issues, including what they described as concerns with the witness’s credibility.
Among other concerns raised by the defence were the ability to properly cross-examine the witness, the ability to best observe his responses to questions and statements, and the ability to ensure that he is undistracted and secure.
Defence cited a case from Ontario where police officers were allowed to give evidence remotely through MS Teams, and at the same time were texting one another off-camera at the time that evidence was being given.
Crown noted in their application that were the victim required to testify in person, he would be forced to be away from work and his pets as well as take multiple flights to get to B.C.
Judge Shannon Keyes ended up agreeing with defence, including the fact that by doing it remotely would be difficult during cross-examination to ensure that the witness wasn’t checking their police statement or other documents off-camera. The judge added that the cost of travel alone was not enough of an exceptional circumstance to allow the remote testimony.
Following the application, Crown asked for the trial to be delayed in order to arrange travel for the witness.
According to the Crown, after the trial was scheduled in October and subpoenas issued, a first attempt to serve the witness at his previous residence in Kelowna was unsuccessful. It took until December to track him down in Toronto, and then police in Ontario were contacted to serve the subpoena. However, it was noted by the Judge that it was uncertain whether they had actually served the subpoena to the witness by Jan. 4.
Defence argued that delaying the case would be prejudicial to Mummery, and asked why a ticket could not be purchased to get him to Penticton by Friday’s trial. Defence also took issue with the delay between the subpoenas being issued at the end of October and the application on Jan. 4 for the remote testimony.
The judge deemed the importance of the witness, and Crown’s expression of his willingness to come and testify in person if given the time to arrange travel to grant the adjournment. The judge also directly addressed defence’s arguments over whether the conduct of the Crown and police had contributed to having to ask for the trial’s delay.
“It was suggested that this was negligent on the part of the Crown, that the delay was inordinate, but in my view it is not,” said Judge Keyes. “We’re talking a few weeks here of trying to get things organized over the major Christmas season.”
A new date for Mummery’s trial has not yet been announced.
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