WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TAYLOR HAAS
Before: Justice A. Wheeler
Heard on: 28 April 2020
Ruling released on: May 5, 2020
Counsel:
G. Skerkowski — counsel for the Crown
J. Neuberger & J. Navarrete — counsel for the defendant
DECISION
Introduction
1Taylor Haas is charged with sexual assault.
2The sexual assault is alleged to have occurred in the early morning of February 22, 2018 at Mr. Haas' house after a student drinking party on the evening of February 21 at another student's house.
3The Crown called the complainant and the four other students who were at the party, and also a friend of the complainant whom the complainant texted both from the party and from Mr. Haas' house. Mr. Haas, the complainant and the others who were at the party were all Queen's University students at the time.
4Evidence was heard over the course of five days in February 2020. Closing submissions were scheduled to be heard on April 15, 2020, but were not because of the Covid-19 pandemic.
5At the appearance on April 15, which was by audioconference, I broached with the parties whether there would be any interest in making closing submissions by audioconference. The defence was favourably inclined towards this. The Crown was circumspect. I asked the parties to make written submissions on the issue, and then heard oral submissions on this issue, again by audioconference, on April 28.
6In its submissions, the defence formally requested that closing submissions be made by way of audioconference, but supplemented by written submissions. In support of that request, the defence filed an affidavit from Mr. Haas, which indicates that he is aware of his right to appear personally or by video-link and that he wishes to have closing submissions proceed by way of audioconference. The defence materials indicate that counsel would have a separate and simultaneous means of communicating with Mr. Haas during audioconference court proceedings.
7The Crown, while not absolutely opposed, remains circumspect, and has quite properly raised a series of considerations that must be addressed in deciding whether to hear submissions by way of audioconference, and in proceeding by audioconference if the defence request is granted. Those concerns can be grouped under various headings: (1) jurisdiction and the right of the defendant to be present at his trial; (2) open courts and the right of the public to attend; and (3) practical and other considerations.
Jurisdiction and the Right of the Defendant to be Present at His Trial
8Closing submissions are an important part of a trial, and Mr. Haas has a right to be present. Furthermore, the Criminal Code contemplates that an accused will be present at his or her trial subject to various exceptions. Since the Crown proceeded summarily, the most obviously applicable exception here is found in s. 800(2) which states that a "defendant may appear personally or by counsel or agent" subject to the court requiring the defendant to appear personally. That provision is clear-cut, and as such I see no reason to wade into the complexities of the other Code provisions that speak to an accused person being present or absent from court, other than to echo the comments of Downes J. in R. v. Candelaria, 2020 ONCJ 194 at para. 8, that "[u]nfortunately, their presence over several different parts of the Code does not always facilitate an easy comprehension of how they work in conjunction with one another."
9As already noted, Mr. Haas has provided an affidavit which indicates that he is aware of his right to be present either in person or by video-link, and that he is expressly waiving those rights.
Open Courts and the Right of the Public to Attend
10The last meaningfully public appearance on this case was on February 19, 2020, at which point the case was adjourned to April 15 for submissions.
11Information posted on the website of the Ontario Court of Justice states (as of May 4, 2020):
The Ontario Court of Justice will not be returning to full operations on May 29, 2020. No trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest, unless a judge seized with a continuing matter orders otherwise. This applies to criminal, family and Provincial Offences Act matters. The Court will soon provide a detailed notice to the profession and to the public about all proceedings in the Ontario of Justice. The Court is also working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants' ability to access the Court's services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.
And further:
As part of the collective efforts to curb the spread of the COVID-19 virus and to protect the health and safety of court users, justice system participants, and members of the public, the Ontario Court of Justice is limiting access to courthouses.
People should not attend Ontario Court of Justice courthouses unless they fall within one of the exceptions identified below.
Urgent criminal and family matters: As of March 28, 2020, all urgent criminal and all urgent family proceedings will be conducted by telephone and/or video conferencing, unless otherwise ordered by a judicial official. Attendance in courtrooms for those matters will be restricted to the judicial official and essential court staff, unless a judicial official orders otherwise.
And further:
If you have a criminal or a family court appearance scheduled in the Ontario Court of Justice between March 16, 2020 and May 29, 2020, other than an urgent matter, your matter will be adjourned — without you being present — to another date 8 to 12 weeks away.
12The website states that: "No trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest, unless a judge seized with a continuing matter orders otherwise" [emphasis added]. By this ruling, I am "ordering otherwise." However, the Crown properly points out that since this is not an urgent matter, a person reading the website could also understand that this case, which was scheduled for hearing between March 16, and May 29, 2020, would be adjourned "to another date 8 to 12 weeks away." As such, unless interested parties are made aware of this decision to hear closing submissions by audioconference, that hearing could become, de facto, a closed proceeding which would violate the principle that courts be open.
13In Application to proceed in camera, Re, 2007 SCC 43, Bastarache J. held:
32 Open courts have several distinct benefits. Public access to the courts allows anyone who cares to know the opportunity to see "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) ("CBC"), at para. 22. An open court is more likely to be an independent and impartial court. Justice seen to be done is in that way justice more likely to be done. The openness of our courts is a "principal component" of their legitimacy: Vancouver Sun, at para. 25.
14There has been considerable public interest in this trial. Defence counsel advises that to their knowledge, two media organizations covered the trial, one associated with Queen's University, the other a national media organization. In addition, the local newspaper, the Whig Standard, often covers trials in the Ontario Court of Justice in Kingston. As well, some of the Crown witnesses chose to return to court to observe the proceedings after they testified. This included the complainant. Furthermore, there were people who accompanied the complainant to court to observe the trial.
15In my view, closing submissions held by audioconference can be done in a way that respects the open court principle and the rights of persons to observe court proceedings, provided that appropriate steps are taken to ensure that interested persons/organizations are given sufficient notice of the hearing date and details of how to access the audioconference.
16Justice will not be "seen"; there will be nothing visual to observe. However, interested parties will be able to monitor and scrutinize the court process, to know exactly what is said and by whom, and how it is said.
17In my view, notice of the decision to proceed by audioconference is easily achieved for those persons who had some connection to the trial, by requesting the Crown to provide a copy of this ruling and the details of the hearing itself when they are fixed (date, time, audioconference details) to all persons who testified at the trial, whether directly, through the investigating officer, or with the assistance of the Victim and Witness Assistance Program.
18Notifying the media is a more difficult issue. The two media organizations identified by defence counsel (Queen's University Journal and Global News) should be notified, and so should the Kingston Whig Standard. This will occur by email through the court administration. In addition, this ruling will be publicly accessible from the court office in Kingston, and also on online sources of court decisions. Through this ruling, interested organizations will know that this trial will continue with closing submissions being heard by audioconference, on a date to be fixed, and that they should contact the Ontario Court of Justice in Kingston in order to obtain the relevant information (date, time, audioconference details).
Practical and Other Considerations
19Part XXII.01 of the Criminal Code sets out the principles and rules relating to remote attendance. Section 715.21 recognizes that that the baseline or default is that all participants should attend personally, while s. 715.22 states that the purpose of the provisions allowing for audioconference or videoconference proceedings "is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice."
20The provisions in that Part set out a series of factors that a judge should consider before permitting an accused person, participant or judge, to appear, participate or preside remotely. Factors relating to witnesses have no bearing on whether to hear submissions by audio. Taken together, the remaining factors can be summarized as follows: (a) the location and personal circumstances of the accused and counsel, (b) the nature of the anticipated participation in the court process, (c) the costs that would be incurred if the proceedings were to be held in person, (d) the suitability of the location from which parties/judge will participate/preside, (e) the accused's right to a fair and public hearing, and (f) the nature and seriousness of the offence. See ss. 715.23(1), 715.25(2) and 715.26(1).
21I note that the provisions also stipulate that the presiding judge can at any time cease the use of technological means for participating or presiding, and take any measure that the court considers appropriate. See ss. 715.23(3), 715.25(4) and 715.26(3).
22I also note that s. 715.26(2) requires that I give reasons for a decision to preside by means of audio or video technology but, oddly, requires that I give reasons if I decide not to make an order permitting the accused to appear or permitting a participant to participate by audio or video technology (see ss. 715.23(2) and 715.25(3)). In any event, these are my reasons for directing that submissions in this case will proceed by audioconference for all concerned.
Location and Personal Circumstances of the Accused and Counsel
23Mr. Haas transferred to University of British Columbia to continue his studies, and is from the west coast.
24The complainant is also from the west coast.
25Most of the other witnesses were Queen's students, and it is quite possible that they are not currently residing in Kingston, whether because of the pandemic or because they have graduated and/or have jobs elsewhere.
26In addition, there were people present in court who I assume were family members of the complainant or Mr. Haas, who likely had to travel to Kingston in the first place to attend the trial.
27Defence counsel are based in Toronto.
28Waiting until the court can accommodate an in-person hearing will require people to choose between travelling to attend court in Kingston, or foregoing the opportunity to hear submissions. Furthermore, travel would seem to bring increased risk of exposure to the Covid-19 virus at least for some time to come.
Nature of the Participation (and Nature of Technology Proposed i.e. Audio v. Video)
29The evidence has been completed and what remains is for counsel to make closing submissions.
30I agree with the Crown that making submissions by audioconference will be in some respects harder for counsel, perhaps for the simple reason that doing so is just not how court proceedings are normally conducted. Typically, the advocate can see the judge, and perhaps gauge whether he or she is understanding the point being made, has found the right page in a transcript or case to follow along as counsel reads a passage, or perhaps is not following the submission or has a question. The Crown puts it this way:
Making closing submissions is hard work. Performing the task remotely will make it more difficult. Organizing oral remarks, referencing written materials, and interacting with the court and other counsel is easier to do in person, without having to manage a phone connection and other practical issues. At minimum, the courtroom is the more familiar location for performing these complex tasks, and achieving some confidence that submissions are received and understood.
31The absence of the visual cues that bear on the concerns raised by the Crown has not been an impediment to visually-impaired persons having successful careers as advocates, but for a person accustomed to having those cues, proceeding without them will add some challenges.
32I have considered whether videoconferencing technology would be a better option than audioconferencing, but this is not completely clear cut.
33Video would have the advantage that counsel and judge could see one another, and observers would be able to see both counsel and the judge. (For observers, the ability to see counsel would offer a perspective that they do not actually get in a real courtroom, where they can only see the backs of counsel's heads.) It might be that the ability to see the parties make submissions and to watch the interaction between the judge and counsel could give observers a greater degree of confidence in the verdict – that both sides had a full opportunity to make argument, and that the judge was fully attentive. This is certainly an area where audio does not compare. However, by the very nature of the case I expect that after hearing submissions from Crown and defence, I will reserve judgment in order to prepare written reasons for release on a future date. The quality of those reasons must bear the burden of concerns about whether justice is done and seen to be done. Indeed, this is one of the primary purposes of reasons for judgment. In R. v. Sheppard, 2002 SCC 26 at para. 24, the Supreme Court put it this way:
At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
34There are also factors that could make video technology problematic, which would not be the case for audio technology.
35Video requires all participants to have a strong and stable internet connection, something that is less predictable than having a strong and stable telephone connection (which is not to say that telephone connections are always trouble-free).
36Crown counsel has raised a concern that proceeding by audio would come with the danger that a party might make an unauthorized recording, something that the court is more likely to be able to perceive and react to in a real court room. An audio recording of court proceedings is at least something that can lawfully be obtained through proper channels in accordance with applicable court policies. Proceeding by video creates a greater risk – an unauthorized video recording, something that is not ordinarily available even through proper channels.
37Furthermore, it is my understanding that the video platforms currently available to the court are to be used as a priority for in-custody matters, and that the number of potential participants is fairly limited.
Costs of Holding Proceedings in Person
38At this point, holding the proceedings in person is not an option. The currently available information is that trials will not be conducted until July 6 at the earliest. However, it seems reasonable to expect that priority will be given to persons who have been in custody awaiting trial and particularly those whose cases had to be adjourned because of the pandemic. Furthermore, even if this case could proceed in person in a few more weeks, there would be, as already noted, be increased risk of contracting the virus associated with travelling to Kingston.
Suitability of Location for Participating/Presiding
39Hearing closing submissions by audioconference will require a stable telephone connection. It will be incumbent on counsel and myself to ensure that this is the case. In addition, as noted below, there should be guidelines about the presence of observers (telephones on mute) and about the conduct of participants/presiding judge (e.g. eliminating background noise).
Accused's Right to a Fair and Public Hearing
40The open court principle is addressed above.
41Although Mr. Haas has requested that the submissions phase of his case be held by audioconference, I must still independently assess whether this would compromise his right to a fair trial.
42As an abstract proposition, hearing closing submissions on a serious case by audioconference seems so far removed from the ordinary way that courts function as to be highly undesirable, something that should only be done in an urgent situation where there is no other alternative. However, the concerns that I have about audio as an inadequate or unsatisfactory mode of proceeding are not – at least at this juncture – borne out in the concrete reality of this case.
43The following factors inform my view (which could change as the process unfolds) that hearing submissions by audioconference would not compromise Mr. Haas' right to a fair trial:
Counsel's level of familiarity with the file. This is the continuation of a case where evidence was heard over the course of several days. Counsel who would make the closing submissions were counsel at trial. They heard the evidence first-hand, and transcript is available. Counsel's level of familiarity with the case should assist them in adapting their advocacy to making submissions by audioconference.
Counsel's level of experience. All counsel involved are very experienced, extremely capable advocates. Argument on this motion was done by audioconference, supplemented by written submissions. In my view that went well, and it demonstrated to me that both Crown and defence counsel, despite the novelty of making argument by audioconference, are more than capable of meeting the challenges.
Overall tenor of the proceedings to date. In the proceedings to date there has been a very high level of professionalism and courtesy between counsel. I am confident that counsel will have a good level of communication prior to making their submissions so that both sides will know what is and is not in issue and can focus their submissions accordingly, and that if an issue arises that requires discussion between opposing counsel during the course of the proceedings, counsel will advise me so that the court can take a recess to allow that to occur.
Growing experience with audioconference hearings. Over the last six weeks, this court has regularly been hearing primarily guilty pleas by audioconference. This has, for the most part, worked surprisingly well. At this point, a month and a half into the restricted court operations in response to the pandemic, counsel and the court will have gained valuable experience that can be applied to the advocacy involved in making closing submissions and to the task of presiding over an audio-only process. Although making closing submissions in a case like this will undoubtedly require much more court time than a guilty plea, it is in some respects a less complex task. There are fewer component parts. And, unlike plea proceedings, which require a plea inquiry and finding of guilt, there are no findings that must be made as the process unfolds.
Defendant out of custody with means to communicate with counsel. Mr. Haas is not in custody and would have the ability to communicate independently and privately with his counsel during submissions, thus enabling him to seek clarification, make suggestions or give instructions.
The Nature and Seriousness of the Offence
44Mr. Haas is charged with sexual assault, and the allegation is serious: that he had sexual intercourse with the complainant when she either did not consent or was not capable of consenting.
45The charge is serious, but I find that this is a neutral factor in deciding whether to hear submissions by audioconference or not. On one hand, as the seriousness of allegations increases, perhaps less concessions should be made to practical realities in deviating from the normal ways that courts operate. On the other hand, the more serious the charge, the more anxious the defendant and complainant might be to have the process conclude.
46Mr. Haas is specifically asking that the court proceed with his trial by hearing submissions by audioconference. In his affidavit he states that he would like to have the matter completed as soon as possible so that he can move on with his life. Defence counsel's written argument states that "Mr. Haas' future hangs in the balance."
47Given the nature of the allegation and based on the fact that the complainant remained in court during the rest of the evidence, I assume that achieving finality is also important to the complainant.
48The interaction that gave rise to the criminal allegation against Mr. Haas occurred over two years ago. Both Mr. Haas and the complainant are young adults who are now likely moving onto a new phase of life post university. Furthermore, this trial is very close to being concluded, and it is desirable that submissions be made before too much time has elapsed since the evidence was heard.
49The nature of the charge does not create an impediment to submissions being heard by audioconference. There are transcripts of the evidence, and there are no video exhibits (which could be difficult to deal with in an audio-only process). I expect that counsel will rely on some case law on various issues. However, for the reasons already outlined, I am confident that counsel will have no difficulty making clear submissions.
50The fact that this is a sexual assault case means that there is a publication ban pursuant to s. 486.4 of the Criminal Code on any information that could identify the complainant. In my view, proceeding by audioconference would not raise concerns about the publication ban. And, as already noted, audio has an advantage over video in these circumstances with respect to the risk of illicit recording.
Conclusion
51Taking all these factors together, I have concluded that it is appropriate to attempt to hear closing submissions by audioconference, supplemented by written submissions.
52I have said "attempt to hear closing submissions by audioconference" because it will always be open to me either on my own motion or at the request of either side to revisit this ruling if it turns out that the audioconference proceeding is unsatisfactory.
53Subject to further input from the parties, I would propose that audioconference submissions be subject to the following guidelines:
Observers (meaning interested parties and media)
Crown counsel is to notify the complainant and other Crown witnesses that submissions will be heard by audioconference on a date to be determined, and how to go about obtaining the relevant particulars (date, time, telephone call-in details).
A copy of this ruling will be provided to the Queen's University Journal, Global News and the Kingston Whig Standard, and the ruling will be available to any interested party by contacting the Kingston court office, and will be provided to the court administration for distribution in the ordinary course to online sources of court decisions. Interested parties can then contact the Kingston court office to obtain the relevant particulars for the audioconference hearing (date, time, telephone call-in details).
Observers need only identify themselves as observers when signing into the audioconference; they need not provide their name.
Observers are to keep their microphones muted throughout the proceeding.
Defence Counsel and Defendant
Mr. Haas must be present throughout the audioconference, with his telephone microphone muted.
Defence counsel and Mr. Haas must (as they have indicated they will) have an independent means of communicating during the submissions.
Conduct of Proceedings
It is prohibited to make an audio recording of the proceedings. Any person wanting an audio recording can contact the court office to obtain one through proper channels.
Participants (meaning counsel and judge) are to make best efforts to avoid distracting background noises during the audio conference.
Counsel should provide written submissions in advance, supplemented by any case law that counsel intends to refer to. I will hear from counsel as to the schedule for this. Point-form is acceptable.
When referring to transcripts of evidence or case law during oral submissions, counsel should pause to ensure that the judge has located the relevant page or passage before continuing.
Similarly, when moving to a new point, counsel should pause to inquire whether the judge has any questions. By the same token, I will endeavour to allow counsel to articulate their points in a fulsome way before asking questions.
54I expect that counsel will have other constructive suggestions, and would ask that counsel attempt to reach a joint position on the applicable guidelines to submit to the court. The final framework for hearing audio submissions and issues of scheduling can be addressed before me at the next appearance on Tuesday, May 12, 2020.
55Finally, these reasons should not be read as saying that audioconferencing is a good or desirable manner of proceeding generally. My ruling is simply that in the circumstances of this case, given all the factors I have outlined, it makes sense to proceed in this way.
Released: May 5, 2020
Signed: Justice A. Wheeler