ONTARIO COURT OF JUSTICE DATE: 2021 02 11 COURT FILE No.: Oshawa Info #20-RA25017
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
G.H. Applicant
Before Justice Magotiaux Ruling on Re-Election released February 11, 2021
PURSUANT TO S. 486.4(1) NO INFORMATION WHICH COULD IDENTIFY A COMPLAINANT IN THIS MATTER MAY BE PUBLISHED, BROADCAST OR TRANSMITTED IN ANY FORM
Counsel: D. Morgan, for the Respondent A. Wellman, for the Applicant G.H.
1. Overview
1When does a trial begin?
2The answer in law is not as clear as one might think. It seems like a theoretical question, but the practical implications are significant.
3G.H. is before the Ontario Court of Justice having originally elected to be tried in this court on charges of historical sexual assault and sexual interference. He brought an application pursuant to s. 278.4 to have third party records produced to him. I granted that application in part. The Crown brought an application pursuant to s. 714.2 to have a witness out of the country testify by video-conferencing. G.H. opposed that application. It was granted after an oral hearing. G.H. was not arraigned before either application.
4G.H. is now scheduled to return to this court on March 8, 2021, for arraignment and commencement of the evidence. Five days have been set aside for the trial to be completed.
5On January 6, 2021, 61 days before the next scheduled date before this court, G.H. filed a notice of re-election. He seeks to have a trial in the Superior Court of Justice with a judge and jury. He asserted that his trial in this court was not scheduled to commence until March 8, 2021, and he therefore had a right to re-elect without consent of the Crown pursuant to s. 561(2).
6The Crown opposed the re-election. In the Crown’s view, for the purposes of s. 561(2), the trial began with the hearing of the third party records application, so re-election as of right is not available. The Crown does not consent to re-election.
7The parties attended court by audio-conferencing to schedule a hearing to resolve this issue. In order to avoid delay, I offered to hear the application by written submissions. The parties have submitted facta and authorities. I am grateful for their timely and helpful materials.
8In his written application, G.H. asks the court to recognize his right to re-elect pursuant to s. 561(2), or, in the alternative, to send the matter to Superior Court of Justice for a trial before judge and jury pursuant to the discretionary power in s. 555(1) of the Criminal Code. The Crown opposes both requests and seeks to proceed on March 8, 2021, as scheduled.
9For the reasons that follow, I dismiss the application. G.H. may not re-elect without consent pursuant to s. 561(2) and I am not satisfied that there is sufficient basis to direct that the matter be halted and sent to the Superior Court for trial by judge and jury.
10First, I will set out the history of proceedings to establish the context. Then, I will address the interpretation and application of s. 561(2). Finally, I will consider the residual discretionary power in s. 555(1) and its proposed use to achieve the re-election sought in this matter.
2. History of the Case
11G.H.’s matter has not had the smoothest progression through the Ontario Court of Justice. Two major events have unfortunately resulted in rescheduling or re-shaping things. First, legislative change altered the availability of preliminary hearings. Then, the global health pandemic disrupted court proceedings and resulted in modifications of form and timing.
12The general timeline of proceedings is as follows:
Oct 30, 2019 G.H. was charged with two counts of sexual interreference and three counts of sexual assault.
Jan 10, 2020 A judicial pretrial was held. G.H. indicated he intended to elect trial by judge and jury and request a preliminary hearing. A preliminary hearing was set for Nov 19 and 20, 2020.
Jan 22, 2020 On the date scheduled for formal election, the matter was adjourned because it appeared that G.H. was not entitled to a preliminary inquiry due to amendments to the Criminal Code. 1
March 2020 COVID-19 pandemic resulted in significant changes to court protocols and increase in use of remote technologies
August 24, 2020 G.H. appeared by audioconferencing with his counsel and elected to be tried before the Ontario Court of Justice.
Sept 11, 2020 A further JPT was held to address scheduling and trial preparation. The procedure for filing a third party records application pursuant to s. 278.4 was discussed. The parties engaged in communications regarding the procedure for the s. 278.4 application and scheduling additional dates for trial, which was expected to last longer than the 1.5 days initially scheduled as preliminary hearing dates. The third party records were subpoenaed to court and delivered to the custody of the court by child welfare authorities. 2
Oct. 20, 2020 Justice Wakefield had been identified as the judge scheduled to preside on the dates set in November. He signed an order appointing counsel for two of four interested parties in the records application (which had not yet been filed).
Oct 23, 2020 G.H. filed his third party records application. The Crown filed an application under s. 714.2 for remote testimony of a complainant who resides in the United States.
Oct 27, 2020 The matter was re-assigned to Justice Magotiaux. A date was set for argument of the s. 714.2 application.
Nov 17, 2020 The contested s. 714.2 application was argued before Justice Magotiaux. G.H. opposed the application on the basis of timing (too close to trial) and on the merits. Counsel for the Applicant was directed to serve the s. 278.4 application on two more interested parties who had a privacy interest in the records and had not been notified.
Nov 19, 2020 The application under s. 714.2 was granted with written reasons. Counsel was appointed for the two remaining persons to whom the child welfare records related. G.H. commenced his s. 278.4 application before Justice Magotiaux. After a brief in camera hearing, the court gave oral reasons for directing that the records be produced for judicial review pursuant to s. 278.5. The court personally reviewed the records in their entirety. Court then reconvened, in camera, to hear from both parties and counsel to all four parties who had a privacy interest in the records. The parties did not agree on the extent of disclosure that should be ordered produced to G.H.
Nov 20, 2020 In written reasons, the court directed that excerpts from the records be produced to G.H. on terms and conditions limiting access and disclosure. The matter was adjourned to the scheduled dates of March 8-12, 2021.
Jan 6, 2021 The Applicant delivered a notice to the court that he intended to re-elect pursuant to s. 561(2).
March 8-12, 2021 Scheduled dates for commencement of evidence.
13G.H. has not yet been arraigned and no pleas have been entered.
3. Section 561(2)
14Section 561(2) allows an accused person being tried in the Ontario Court of Justice to re-elect mode of trial as of right, without consent of the prosecutor, 60 days or more in advance of the first day of trial. It reads:
561 (2) An accused who elects to be tried by a provincial court judge may, not later than 60 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor. [Emphasis added]
15The section does not define “the day first appointed for trial”. The point at which a trial commences has been the subject of judicial interpretation, varying according to where and how the term appears and the effects that flow from its meaning in a given context. The term must be interpreted using a contextual, purposive approach; R. v. Brahaney, 2016 ONCJ 395, at para. 16.
16In Brahaney, Justice Paciocco, then of this court, was called upon to interpret s. 561(2) where there had been arraignment, plea and a severance application but no evidence called on the trial proper. The facts in this case are different, but Paciocco J.’s extensive analysis of the intended meaning and reach of s. 561(2) is instructive.
17It is important to begin by establishing the purpose of the section in order to guide a purposive approach.
a) Purpose
18The purpose of s. 561(2) is broad. Establishing timelines and limits on re-election promotes trial efficiency, avoids delay, discourages “judge-shopping” and supports the integrity of the administration of justice: R. v. Bennett (1993), 83 C.C.C. (3d) 50 (Ont. Prov. Div), at p. 63; Brahaney, at para. 54; R. v. Savage, 1990 CarswellQue 876 (C.A.), at para. 32 (citing an unreported judgment of the Ontario District Court in R. v. H.L.). The limits to re-election strike a balance between the important concerns and choices of the accused person, and the systemic implications of disruption. Court administration, prosecutors, witnesses and complainants may all be impacted by a change in mode and timing of trial.
19Parliament has restricted the accused person’s choice of election by imposing a time limit for change which is fixed at 60 days in advance of the day first appointed for trial. That “day” may be a moving target. There are a number of factors that will assist in defining the day first appointed for trial in a particular case. None are immediately determinative. They must be balanced together in context with the purpose of the section squarely in mind.
b) Arraignment and Plea
20Arraignment and plea are helpful distinctions of the starting point of substantive proceedings but are not dispositive of the issue of when a trial commences: Brahaney, at para. 27, citing R. v. Wiseberg, [1973] O.J. No. 945 (C.A.) and Criminal Code, s. 669.1. Depending on the circumstances and purpose of a given provision, interpretation of the time of start of trial may require a finding that the trial has commenced prior to plea being entered: see for example R. v. Barrow, [1987] 2 S.C.R. 694.
21The absence of plea and arraignment were not determinative in the recent case of R. v. Vella, 2020 ONCJ 338. In Vella, Burstein J., found that the first day appointed for trial was the day scheduled for the commencement of trial, even though the trial did not commence as scheduled and was adjourned at the request of the defendant. Following Brahaney, Burstein J. engaged in a purposive and contextual analysis to determine when the first day appointed for trial fell on the facts in that case. The lack of any substantive proceeding, arraignment, plea or any determination of an evidentiary issue weighed against finding that the initially scheduled date was a point of no return for re-election, but did not weigh enough to shift the final decision in that direction. There, as here, the absence of arraignment and plea was important but not determinative.
22G.H. relies on R. v. Tippett, 2010 NLCA 49, and R. v. Byrnes, 2013 ONCJ 63, in support of his bright-line approach to defining the start of trial. I am not persuaded that these cases compel or support a finding that the taking of a plea is the only way to commence a trial.
23In Tippett, the court was considering when an indictment is considered preferred, such that an accused person can no longer challenge committal by way of certiorari. The court concluded that the indictment is preferred on arraignment and plea. However, in Newfoundland, arraignment and plea happen well before trial, before a jury is constituted or pretrial applications are heard. The Tippett court specifically noted that the arraignment and plea must happen before any applications are heard by the appointed trial judge pursuant to s. 645(5) of the Criminal Code, since the “trial effectively starts at that point” (at para. 75). I do not read Tippett as assisting the Applicant. In that context, the fixing of the preferment of indictments was considered with different context and purpose in mind. G.H. made no argument about the jurisdiction of the court to hear pretrial applications absent a formal plea.
24In Byrnes, Justice Devlin, of this court, noted that it was a matter of “best practice” that a defendant should be arraigned prior to the hearing of pretrial applications. 3 I agree. It offers a clean and identifiable marker and reduces confusion about trial status. But, as noted in Brahaney, the arraignment and plea are not a single determining factor. A contextual and purposive interpretation may result in fixing the commencement of trial at different times or places, before or after plea, depending on all of the circumstances.
25I note that the comments in Byrnes about the best timing for arraignment when pretrial Charter applications are before the court were clearly obiter. There was no mention of s. 561(2) or exercise of statutory interpretation on commencement of trial. The court in Byrnes was considering applications regarding delay and language rights, in a trial of provincial offences before a Justice of the Peace. In passing, the court commented on an area of confusion in the proceedings below that arose from an attempt to appeal a pretrial Charter decision before the trial proper had commenced. Devlin J. characterized the notion that a Charter application could be decided without the trial having been commenced as an “absurd legal outcome and case management headache”. Again, I agree. In some circumstances, interpreting s. 561(2) to allow re-election after argument of substantive applications or voir dires would be inefficient and illogical.
c) Pretrial Applications
26What are colloquially called “pretrial” applications may or may not start the trial. Some applications, such as an application for particulars, have been found not to signal trial commencement: R. v. Black, 2010 NBCA 36, [2010] N.B.J. No. 171 (C.A.). Administrative matters such as publication bans or orders appointing or removing counsel, are not significantly linked to the substantive trial and less likely to raise concerns that the day appointed for trial has arrived. Other types of hearing, such as the severance application in Brahaney, have resulted in a finding that the trial proper was underway and re-election was not available under s. 561(2).
27A voir dire regarding the admissibility of evidence at trial is considered part of the trial proper, whether it is heard before or after arraignment: Brahaney at para. 30, R. v. Poloni, 2008 BCPC 326, at para. 55, Duchamel v. The Queen, [1984] 2 S.C.R. 555, at p. 563. Although not going to guilt or innocence on the merits, the admissibility hearing is directly linked to the substantive trial interests. It shapes what the trial will and will not be, and balances competing interests, sometimes of constitutional proportions, that must be evaluated in full contextual consideration of the prosecution’s case, defences raised and intended legal and factual scope of trial.
28Other kinds of pretrial applications and hearings, such as those heard under s. 278.3 – 278.9 of the Criminal Code in this case, can also be said to engage substantive trial interests, though they are not admissibility hearings. Often, though not always, a court must receive and review evidence on such applications, including evidence from witnesses and parties who will participate in the trial. Applications which require evidence to be called are more likely to constitute part of the trial: Brahaney, at para. 36.
d) Considerations of Principle
29There is principled reason why allowing for re-election as of right after pretrial rulings in the nature of s. 278.3 – s. 278.9 would be problematic. Such an interpretation would mean that the defendant can receive rulings from a trial judge, and then, if unhappy with the result of those rulings, unilaterally decide to re-litigate the issues before another court absent proper appeal. The Superior Court judge presiding over the re-elected trial would not be bound by rulings in the same case made in this court. As cautioned in Brahaney, at para. 59:
Section 561(2) should not be interpreted to give accused persons a do-over before a different judge after significant matters have been adjudicated.
30I do not suggest that G.H. is personally seeking to avoid rulings or “judge shop”. I must interpret the section’s meaning with a view to the intended purpose of the provision and the impact of proposed meanings on the justice system as a whole. An interpretation that the start of trial turns on arraignment and plea alone and does not consider whether substantive trial matters have been adjudicated would ignore the important principles of judicial integrity and consistency. It is, in Justice Paciocco’s words, “doubtful” that Parliament intended to leave the unfettered option of judicial review without appeal open to defendants in this manner.
31G.H. raises the question of whether the Crown would be permitted to withdraw the information in this case and relay the information later to similarly have another chance at argument after an unfavourable ruling. He questions whether the defendant, in such circumstances, would have any remedy given that he was not formally in jeopardy, having entered no plea. That scenario is a different set of circumstances, where the interpretation of commencement of trial and jeopardy would be subject to a different purposive and contextual backdrop. The defendant would also have an avenue of redress through the Charter and abuse of process arguments in such a case. I am not concerned that an interpretation that the day first appointed for trial had passed in this case would open the door to the Crown proceeding in the manner suggested.
e) Conduct Before the Court
32Another factor that can influence the determination of commencement of trial is the conduct of the Applicant in relation to the court. Did the parties behave in a manner that implied that they understood that the court was acting as a trial court, beyond case management functions? Particularly where formal steps are absent, the conduct of parties in the face of the court may assist in determining their understanding of the stage of proceedings and the rights or choices available to them: Vella, at para. 32.
f) Application
33Applying the factors above to the facts of this case, I find that the purposive and contextual approach compel a finding that the trial commenced with the applications already heard in this court.
34The absence of arraignment and plea do weigh against the finding that the trial has started. I acknowledge that it would have been better for the arraignment and plea to have been completed prior to the hearing. It is a best practice that enhances clarity and should be followed.
35In G.H.’s matter, there were administrative tasks including publication bans and appointment of counsel that undoubtedly occurred before his trial commenced. These acts do not assist in defining the day first appointed for trial. However, I am satisfied that the hearing of the contested application pursuant to s. 278.3 – s. 278.9 relating to private records of multiple parties, including complainants, was not an administrative task but a substantive one, integrally related to the guilt or innocence phase, and intended to be completed by the person who would preside through to resolution.
36I was seized of the matter upon commencing the s. 278.4 hearing. Seizure is not determinative but is closely related to the question of whether the trial has commenced: Poloni, at para. 16. It protects the appearance of justice by reducing perceptions that judges are selected for particular issues, and promotes efficiency and consistency in adjudication: Brahaney, at para. 37.
37In the context of private records such as the child welfare material reviewed here, there is all the more reason, statutorily entrenched, for one judge to hear the applications and the trial. Section 278.3(1) of the Criminal Code requires that the application for production of third party private records must be brought before “the judge before whom the accused is to be, or is being, tried”. The task is one which is directly assigned to the trial judge and is therefore more likely to be found a trial task; Brahaney, at para. 39. G.H. made no jurisdictional argument regarding the hearing of his application before me as the designated trial judge.
38Like the severance hearing in Brahaney, the hearings regarding review and production of private records had to do with ensuring the integrity and fairness of the trial, and with balancing the accused person’s interests and ability to fairly conduct his defence against societal and personal interests in releasing and exposing private child welfare records. I was required to receive evidence regarding the intended trial proceedings, and to make a decision about the disclosure required in the context of that evidence. The proceedings did not address the final question of admissibility, but they were steps on that road, necessary steps, premised on the same interests, and framed by the same constitutional protections for the accused, as will govern admissibility of the evidence at trial if sought.
39I also heard and ruled on a contested application for remote testimony. While such remote appearance applications may at times be decided by a person other than the trial judge, this application was not pro forma. It involved receiving sworn evidence from a complainant followed up by written and oral submissions by counsel. Significantly, G.H.’s counsel opposed the application in part because it was not brought far enough in advance of the date scheduled for trial testimony. His arguments demonstrate an assumption that the trial was scheduled to commence on November 19, 2020. 4 In written reasons, I rejected the timing argument and allowed the remote testimony. I question whether that litigation can fairly be considered administrative. But I need not decide whether disposition of that application alone triggered the formal commencement of trial in this case. It adds to the scale of reasons why it makes sense that the trial in G.H.’s case is already underway.
40Considering the in-court comments and submissions on both the s. 714.2 and the s. 278.4 applications, I find that the conduct of the parties demonstrated a shared understanding that the substantive trial process had begun. G.H. asked the court to exercise its jurisdiction as a trial court to prevent remote testimony and produce records. G.H. chose to rely on the time limits in advance of trial evidence to argue that the Crown was prohibited from applying for witness accommodation. His position implies acceptance that the trial was commencing in November 2020.
41An additional concern with the proposed re-election in this case is that it is expressly being sought to cause delay. That is antithetical to the purpose of s. 561(2), which limits unilateral late re-election in order, at least in part, to avoid delay and systemic inefficiency.
42The affidavit filed in support of G.H.’s application attests that he believes he will benefit from re-election to trial by judge and jury because a jury trial will take some time to constitute and by the time that can realistically happen, he and his counsel hope to both be vaccinated against the COVID-19 virus (Affidavit of Oneal Sookoo, at para. 19). He was hoping when he elected trial in the Ontario Court of Justice that the pandemic would be over by the time he came to trial. It is not. Now he wants to go where the wait is longer. The Applicant seeks to create and take advantage of delay, not to avoid it.
43Considering the purposes of s. 561(2), including the administrative and public interests in trial efficiency and the integrity and consistency of judicial functioning, along with the important but not absolute right of an accused person to choose his mode of trial within the limits of the Criminal Code, I find that in the circumstances of this case, the day first appointed for trial was November 19, 2020, the day set aside and used for the application for production of private records. That day has passed. G.H. does not now have a right to re-elect mode of pursuant to s. 561(2) without consent.
4. Section 555(1)
44The matter does not end with the determination that the trial has commenced. G.H. has a further avenue to seek the remedy of a trial in the Superior Court of Justice. That avenue is s. 555(1) of the Criminal Code.
45Section 555(1) reads as follows:
555 (1) If in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted in superior court, the provincial court judge may, at any time before the accused has entered a defence, decide not to adjudicate and shall then inform the accused of the decision.
46The parties accept that I have jurisdiction under this section to put G.H. to a re-election and direct the matter to proceed in Superior Court. They disagree on whether I should exercise that discretion in the circumstances of this case.
47The section itself is not particularly helpful on the standard to apply for the exercise of power. Section 555(1) is an extraordinary power which has been interpreted to require a high standard of necessity in the public interest before proceedings will be disrupted and restarted in a different court: R. v. Baldasaro, [2006] O.J. No. 505 (S.C.J.), at para. 23. It has also been used where it serves the interests of justice and ensures efficiency of proceedings, for example to address a fairness concern when a new and significant legal issue arose post-election as in R. v. Carlson, 2005 BCPC 167 or address an inefficiency in representation which impacted election as in Bennett.
48In Bennett, at p. 62, an Ontario Court described s. 555(1) as “beacon” for relief for an accused person who wishes to re-elect but does not have the required Crown consent. Bennett, at p. 63 and 65, suggests that a judge hearing a re-election request under s. 555(1) will consider all of the circumstances including fairness to the accused person, the social and public interests of the Crown, and the interests of the administration of justice: see also R. v. Turpin, [1989] 1 S.C.R. 1296.
49G.H. relies on the following points to justify the transfer to Superior Court (Factum of the Applicant, paras. 37-39):
i. There has been no viva voce evidence and the records application was “essentially on consent” so there would be no prejudice. ii. There have appeared to be two trial judges in the matter which creates a “stain” on the court and unfairness to the accused. iii. The COVID-19 crisis and the related need for remote appearances has reduced the Applicant’s comfort with the process and resulted in scheduling difficulties which together require a fresh start in the Superior Court of Justice.
50On the first point, I do not see that whether evidence was provided in written or oral form has any impact on fairness concerns: Brahaney, at para. 64. Either way, the court would have delved into the factual matrix of the offences. In this case, I received sworn evidence from the defendant and reviewed child welfare records. I have heard submissions on relevance, probative value and prejudice in relation to trial evidence. The records application was not on consent and engaged mandatory processes. All four interested parties had to consult and instruct counsel. Two in camera hearings were held. The court reviewed records in depth and released more information from the records than was consented to by the complainants who asserted privacy interests, and less than the full access requested by defence. There is a real risk that allowing a re-election to the Superior Court would result in a repeat of that litigation.
51There may be no prejudice to the defendant in re-visiting the issue in another court, but, as explained above, there is a potential for unfairness to others in re-litigating the same issue before a different court. Parliament has signalled an intention to avoid fragmenting third party records applications from trial in s. 278.3(1) of the Criminal Code, which specifies that the application is to be heard and decided by “the judge before whom the trial is or is to be held”. Courts should avoid unnecessary repeated exposure of personal records through complicated mandatory procedures.
52On the defendant’s second point, I see no need to remedy any alleged “stain” on this court arising from the change of judges prior to the hearing of substantive evidence or argument. During the COVID-19 pandemic, busy trial courts such as Durham’s Ontario Court of Justice have had to shift cases between judges to minimize delay. The court has done its best to manage the sizable backlog of cases which initially developed. Within months of the pandemic’s outbreak, this court managed to incorporate video and audio-conferencing technology as an option for conducting some criminal cases. Both health concerns and developing technology sometimes resulted in judges having to be re-assigned in order to better manage judicial resources. But re-assigning cases to different judges before trial is nothing new. Materials on pretrial applications are commonly delivered to an assigned judge in advance. They are not acted upon until the matter commences.
53In this case, counsel was appointed for the s. 278.4 hearing in advance of the application by a different justice. That appointment of counsel was made on consent, in writing, and pursuant to a standard form which exists as part of the local protocol for funding counsel in these unique applications. Appointing counsel was necessary for the defendant’s application to proceed to a hearing. The reason for haste was that dates had already been set aside for a hearing of the application. Significantly, the s. 278.4 application with attached evidence had not even been filed when the order appointing counsel was signed by the other judge. The appointment of counsel was clearly an administrative task in this case. The fact that it was undertaken by a different judge is of no moment.
54I can see no basis at all for G.H. to “lose confidence in this level of court” because of re-assignment of judges prior to the hearing of the s. 278.4 application. It seems to me that assigning yet another trial judge in another level of court for pretrial applications and potentially yet another for trial would only add to, and not ease, any alleged “loss of confidence” arising from changing judicial officers.
55For each appearance with evidence presented, submissions made, and decisions rendered, I was the presiding judge. While another justice attempted to organize the case in advance of the first application to ensure effective use of upcoming court time, that limited indirect communication did not involve any substantive decision-making or receipt of evidence. 5 The only times the defendant appeared in court following his election for trial in this court was before me on the s. 714.2 application and on the s. 278.4 application. Both times, I identified myself as the trial judge directly to G.H.
56The third concern raised by the defendant in support of his s. 555(1) argument is one that would apply to most participants in the justice system at all levels of court. That concern applies equally to the public in general in so many aspects of our personal and professional lives. The pandemic and its resulting restrictions on personal contact have impacted everyone in immeasurable ways.
57I do not discount that G.H. may not feel entirely comfortable with remote preparation and appearance. I expect many witnesses and lawyers and other justice participants have felt challenged in moving ahead with new and sometimes unfamiliar processes and forms of communication, while managing unknown personal fears, risks and conditions. However, this point does not assist me in directing which court is the best venue for G.H. Every court is adapting to COVID-19 with increased technology, decreased personal appearance, and modification of former practices. The Superior Court, housed in the very same building, will be no different for him.
58Nor do I consider the 714.2 application to have any bearing on the election as suggested by the defendant in his application. The election for trial in the Ontario Court of Justice was made well into the pandemic when it was already apparent that things looked different for in-person attendances. The Crown indicated at the first pretrial in January 2020, pre COVID-19, that it would be applying to have two complainants testify via closed-circuit television. The defence was already on notice that there would be no in-person confrontation at trial if the Crown’s application was successful. Furthermore, even absent COVID-19 implications, remote testimony is presumptively acceptable for out of country witnesses, at any level of court. A transfer to the Superior Court would not change arguments available or made on the s. 714.2 application. It would only result in “another kick at the can” for counsel. Fairness does not demand such an opportunity. Judicial efficiency, economy and integrity weigh heavily against it.
59The Ontario Court of Justice in Oshawa has met provincial safety standards and protocols for in-person attendance and has been conducting in-person proceedings since July of 2020. G.H.’s trial is scheduled as an in-person matter. He and his counsel are free to attend in the courtroom, which is adapted for enhanced safety and minimal contact through structural changes, capacity limits, and significantly increased cleaning services. The Crown has applied to have at least one witness testify remotely, and could seek further remote appearances, as is common in changing health circumstances of individuals and communities during this pandemic. That kind of application will be dealt with according to the appropriate legal test regardless of the level of court. If G.H. and his counsel wish to appear remotely in light of personal health concerns, they too can make such requests.
60If I could facilitate a trial where everyone felt safe and able to prepare and attend in-person, I would. That is not available. If what G.H. really seeks is to postpone his trial until such time as the public is able to freely travel and meet in-person, that is an adjournment request, not a request for change of court during trial or re-election. No adjournment application has been brought here.
61G.H.’s application indicates that he personally believes there will be benefits to re-election in that a judge and jury will take more time to constitute and he and his counsel may then be vaccinated against the coronavirus (Affidavit of Oneal Sookoo, at para. 19). That may be in G.H.’s personal interest, but it is not in the interests of justice to send this matter to a different court, adding to its already substantial burden, to force repetition of the records motion, and to prolong the matter for the complainants, the prosecution and the public.
62G.H. elected to be tried in the Ontario Court of Justice with the advice of senior experienced counsel. He made that election in the midst of the pandemic when it was abundantly clear that court operations were, and would continue to be, impacted by safety concerns. The validity of his waiver of the right to trial by judge and jury was not challenged, nor could it be on the facts before me. There has been no change of counsel or change of material circumstance since his original election to have a trial in this court. There is no prejudice or unfairness in continuing to trial in the venue that he chose.
63G.H. is entitled to a fair trial, not a perfect one. I am well-satisfied that he can have a fair trial in the Ontario Court of Justice. With no disrespect to the very real and important health concerns of any participant, I see no reason to invoke the extraordinary measure of using s. 555(1) to effectively permit re-election now that his trial in the Ontario Court of Justice has already commenced. The concerns raised by the Defendant, even when taken together, do not outweigh the public interest in the orderly and timely progression of his trial in accordance with his original election.
64I decline to exercise my jurisdiction under s. 555(1) to end proceedings and move the matter to the Superior Court of Justice.
5. Conclusion
65The trial has begun. I am seized as the trial judge. It is in the interests of justice to have the matter continue on March 8-12, 2021, as scheduled. If the parties wish to make application for remote appearance in light of their own health concerns, they may do so by completing the local protocol forms for such requests and scheduling an in-person or remote appearance in front of me in advance of trial if necessary.
Released electronically: February 11, 2021 Signed: Justice S Magotiaux
Footnotes
- The confusion arose because the alleged offences are historical (1998-2001). The current maximum penalty for both sexual interference and sexual assault where the victim is a young person is 14 years imprisonment, making a preliminary hearing available. The maximum sentence for the same offences at the time of the allegations was 10 years imprisonment, which does not trigger eligibility for a preliminary hearing.
- The Applicant expressed a belief that the records were delivered personally to the then-assigned judge. In fact, as clarified on the record in court on November 19, 2020, the records were in a sealed envelope attached to the Information pending a determination after a mandatory hearing under s. 278.4 as to whether the court could review the contents. It is not clear why this process was engaged prior to a hearing, but no records were reviewed by any judicial officer prior to the determination under s. 278.5.
- Byrnes was a case about s. 11(b) of the Charter and the right to a French trial. Justice Devlin’s comments on the start of trial were obiter. Section 561(2) was not mentioned and there was no legal argument about the interpretation of the day first appointed for trial.
- Section 714.2 requires that notice must be given of any application at least ten days prior to the date on which the witness will testify. The Crown application was served on October 22, 2020. Counsel to G.H. said that the hearing of the application should be ten days or more before the testimony, and referenced the rules governing pre-trial applications which require that many applications be brought 30 days before trial. He argued that the 714.2 application ought to have been heard more than ten days before November 19, 2020.
- In support of this application, G.H. filed email communications with court staff including indirect questions from the judge originally assigned. The communications between the trial coordinator, counsel, the Crown and the judicial administrative staff pertained to the status of, and expectations for, applications, mode of appearance, and scheduling. They reflect the day-to-day efforts of a busy court to organize matters and facilitate effective use of limited court time.