Court File and Parties

Court File No.: 13-84 & 13-9703

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Demetrius Walker

Before: Justice Lloyd Dean

Heard: February 10, 2014, and March 28, 2014

Counsel:

• B. Manarin, for the Crown
• C. Sweet, for the Accused

Ruling on Application

Introduction

[1] Mr. Walker, 36 years old, a United States citizen and resident, is before the court charged with numerous charges regarding a loaded firearm found in his vehicle upon his entry into Canada via the Ambassador Bridge here in Windsor.

[2] This ruling concerns an application brought by Mr. Walker seeking the court's leave to allow him to plead guilty and be sentenced through his designated counsel pursuant to s. 650.1(3)(c) of the Criminal Code ("Code"). The Crown opposes the application.

Facts

[3] The Applicant, on January 12, 2013, at 9:15 pm, crossed the Ambassador Bridge into Canada driving his 2003 Cadillac automobile, bearing State of Illinois licence plates. His adult son was a passenger in the vehicle. At the primary inspection booth he informed the Canadian Border Service Officer ("CBSO") that he had mistakenly crossed the bridge and wished to return to the United States ("U.S."). He was asked by the officer if he was in possession of any firearms or weapons. He denied being in possession of such. The Applicant was thereafter sent to the secondary inspection area where his car was searched and a loaded Vel-Tec P-11, 9mm semi-automatic handgun was found in the trunk, among clothing inside a gym bag. There were 10 rounds of 9mm ammunition in the magazine of the firearm. He is charged pursuant to the Customs Act with (i) making false or deceptive statements, s.153(a); (ii) possession of an imported prohibited weapon, s.155 and (iii) smuggling or attempting to smuggle a prohibited weapon into Canada, s.159. As well, he is charged pursuant to the Code with (i) possession of a loaded prohibited firearm without being the holder of an authorization, licence or registration certificate, s.95(1); (ii) importing a firearm without being authorized to do so, s 104(1)(a); (iii) carelessly transporting a firearm, s.86(2); (iv) unauthorized possession of a prohibited firearm, s. 91(1) and (v) with unauthorized possession of a firearm in a motor vehicle, s. 94(1). The Crown has elected to proceed by indictment on all charges.

[4] The Applicant was held in custody in the Windsor-Essex County jail from January 13 to January 31, 2013 when, at the conclusion of a contested, reverse onus bail hearing, he was ordered released on a recognizance with a deposit of $7500 cash bail, with various conditions. The Applicant was not able to meet the financial requirement of bail until February 15, 2013, at which time the Applicant was released and returned to the United States.

[5] A designation of counsel was provided to the court to allow counsel to attend in lieu of the Applicant's return to Canada to answer the charges. Counsel has continued to appear on his behalf pursuant to the designation. The Applicant has signed a document which acknowledges and confirms the requirements of s. 606 (1.1) of the Code, "the plea inquiry".

[6] The Applicant now seeks leave of the court to enter guilty pleas and be sentenced pursuant to s. 650.01(3) (b) & (c) of the Code, without returning to Canada and standing before the court. He has authorized his counsel, in writing, to enter pleas to all counts on his behalf and to argue for a monetary penalty, which if imposed can be taken from his bail money. He also anticipates his sentence will include a prohibition that he is not return to Canada.

[7] The entirety of s. 650.01 reads as follows:

650.01 (1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court.

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.

(3) If a designation is filed,

(a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than

(i) a part during which oral evidence of a witness is taken,

(ii) a part during which jurors are being selected, and

(iii) an application for a writ of habeas corpus;

(b) an appearance by the designated counsel is equivalent to the accused's being present, unless the court orders otherwise; and

(c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise.

(4) If the court orders the accused to be present otherwise than by appearance by the designated counsel, the court may

(a) issue a summons to compel the presence of the accused and order that it be served by leaving a copy at the address contained in the designation; or

(b) issue a warrant to compel the presence of the accused.

[Emphasis added]

Position of the Parties

[8] The Applicant submits that section 650.01(3) (b) and (c) of the Code provides the court with the discretion to proceed as the court sees fit in the particular circumstances of the case by allowing the court to order the accused not be present for sentencing. Counsel submits the section places no restrictions on the court to accept the guilty pleas and sentence the Applicant in his absence regardless of the charges being summarily or indictable matters. The Applicant submits, although it may be unusual it is not outside the law for this court to allow it given the Applicant's particular circumstances. In support of its position counsel relies on the cases of R v Cole, 2012 ONCA 347 and R v Drabinsky.

[9] The Applicant specifically asks this court to consider the following factors when making its ruling:

(i) he had no intention of entering Canada and stated so at primary inspection;

(ii) he asked to be returned to the United States when he spoke to the first CBSO;

(iii) he was ignorant of the fact he was in Canada when he attended secondary inspection;

(iv) he suffers from a physical disability which requires medication which was not available to him on his detention;

(v) he was in custody at the jail from January 13, 2013 until February 15, 2013 a total of 32 days;

(vi) given his medical disability and the conditions of the jail his custodial period was particularly onerous;

(vii) he is alleged to suffer from mental disability which impairs his understanding of reality and his consequent obligations;

(viii) his financial status is limited and the loss of his bail money will be a hardship for his family members who provided those funds;

(ix) the bail funds are available to pay any monetary penalty imposed in his absence;

(x) he has shown good faith in addressing the charges by retaining counsel through a Legal Aid contributory certificate rather than just "walking away" from the charges; and

(xi) consequently, he not only will lose a portion of his bail money to a monetary penalty but he will also be required to pay Legal Aid from his bail money; and he was required to pay a penalty to have his vehicle returned to him.

[10] The Applicant submits that, although the above noted case of Cole refers to a summary proceeding dealing with a question regarding the arraignment process, the Ontario Court of Appeal makes no distinction regarding limitations on the use of a designation by counsel.

[11] The Provincial Crown ("Respondent") is opposed to the suggested plea and sentencing by designation procedure. The Respondent has been delegated the jurisdiction to prosecute the Customs Act charges by the Federal Department of Justice.

[12] It is the position of the Respondent that the orthodoxy of criminal prosecutions for indictable offences underscores the importance of the presence of the accused person at trial. The Respondent submits that pursuant to Section 650(1) of the Code save for unique circumstances an accused person shall be present in court during the whole of his or her trial. It is the Respondent's position that there must be very exceptional circumstances to justify proceeding with a trial in the absence of the Applicant. Ex parte trials must not become the norm because there is a clear risk of a miscarriage of justice occurring which does not exist when the Applicant is present. To support its position the Respondent relies on the cases of R. v. Howson (1981), 74 Cr. App. R. 172 (C.A.) and R. v. Jenkins, 2010 ONCA 278.

[13] The Respondent does acknowledge that examples of trials and guilty pleas, in the absence of the Applicant, for matters prosecuted by way of summary conviction are not unheard of, despite the inherent dangers.

[14] The Respondent submits that indictable matters, like felonies in the United States, are the most serious matters contemplated by the criminal law. As such, more significant sentences must be considered by the court when called upon to do so by the facts.

[15] It is submitted by the Respondent that Parliament, largely as an expedient to counsel and their clients, drafted s. 650.01 of the Code which allowed for counsel to appear on behalf of an accused charged with an indictable offence, upon the filing of a designation with the court. In particular, s. 650.01 (3) (c) underscores that despite a designation being before the court, "a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise". Thus, the Respondent submits, the predominant expectation is that the accused will be before the court at this most critical of junctures.

[16] The Respondent points to the principles of sentencing in Canada codified in sections 718 to 718.2 of the Code and submits in order to have any chance of impacting the individual offender and the community at large, the sentencing judge must directly confront the offender, in the solemnity of a courtroom setting and communicate the views of justice to him or her; without the direct participation of the offender in his/her own sentencing hearing, the open court doctrine is rendered illusory. The Respondent submits that it is not merely of some importance, but rather of fundamental importance, that justice should both be done and be manifestly seen to be done by the offender and all other justice stakeholders.

[17] The Respondent further submits that when a sentence is imposed on an offender in absentia, by definition, nothing is judicially communicated to him/her until the warrant of committal is executed (should there be a jail sentence) sometime in the future. In any event, the reasoning behind the criminal sanction, whatever it may be, will remain entirely a mystery to the individual in question. However, what would be communicated to potential like-minded ex-juris offenders, should the Applicant's proposal be adopted, is the message that if you can make bail you may never have to return to Canada to actually face justice.

[18] The most significant offence to which the Applicant seeks to plead guilty is possessing a loaded prohibited or restricted firearm, contrary to s. 95 of the Code. The Respondent submits that although in 2013 the Ontario Court of Appeal in R. v. Nur 2013 ONCA 677 struck down the mandatory minimum sentence of three years jail on conviction (when the Crown proceeds by indictment on a first offence), it's the Respondent's position, relying on decisions from the Ontario court of Appeal, that most s. 95 offences will attract a penitentiary term even for first offenders.

[19] Counsel for the Respondent further submits that there are several aggravating factors in the case at bar which in his view point to a jail sentence being the appropriate sentence. Those factors, he suggests, are the fact that the Applicant had no licence to possess the firearm in question, has a prior criminal record and the Applicant was on a judicial interim release in the U.S. at the time of committing the offences before the court.

[20] Given the real potential for a jail sentence in this case, the Respondent submits, it would be important for this court to have the opportunity to hear directly from the Applicant before passing its sentence. Although s. 726 of the Code states "[b]efore determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say," it is submitted by the Respondent that the reference to "if present" must be seen as being logically tied to a s. 475 absconding scenario. Similarly, by recognizing "presence" as being the entrenched convention of the courts and the expectation of Parliament, such a procedure serves to further underscore the importance of the inquiries that are expected to be made by a judge, pursuant to s. 606 (1.1) (a) and (b) of the Code, before accepting a guilty plea.

[21] The Respondent submits the ultimate irony of the application herein may be that should this court permit the proposed procedure, and ultimately impose a custodial sentence, two results will necessarily flow therefrom, (i) the Applicant's cash bail, put in place to ensure his attendance, would be returned to him or his agent, despite the Applicant never physically appearing before the court after his release; and (ii) should a jail sentence be imposed, there can be no extradition from the U.S.A. to Canada as the Extradition Treaty between the two countries does not include the offences in question in its schedule of extraditable matters according to the Treaty of Extradition between the Government of Canada and the Government of the United States of America (date of entry into force: 1971-12-03), at pp. 6 + 7.

[22] The Applicant provided a written reply to the Respondent's submissions, after which the respondent wrote a surreply. Suffice it to say the Respondent took exception to several things raised by the Applicant in its reply. One of the concerns the Respondent raises is the potential for the Applicant to perhaps have a viable defence to some, if not all, of the charges. The Respondent points to paragraphs 6 (i), (iv) and (v) of the Applicants reply materials to support its concern and submits the statements made in those paragraphs highlight the importance of an in-person plea inquiry needing to be conducted by the court prior to the court making findings of guilt. Paragraphs 6 (i), (iv) and (v) of the Applicants reply to the respondents factum read as follows:

6. The Crown at page 4 at #8 of their factum acknowledges that the Criminal Code allows for the non-attendance of an accused in "unique circumstances.' The Defendant therefore submits that his case is one with unique circumstances which are set out in the Defendant's factum. Those unique factors include:

(i) the point in time and location at which he advised the Canadian border authority of his lack of desire to enter Canada;

(iv) his failure to understand at secondary inspection that he was actually in Canada; and most importantly;

(v) the design of the plaza at the international crossing which forced him to first enter Canada before being able to return to the interstate highway in Detroit.

Analysis

Legislative Design

Overall Statutory Context

[23] Section 650.01 was added to the Criminal Code in 2002. It allows the accused to "appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court." (Emphasis added) Much of the case law that has considered this section so far has focused on who may appear as designated counsel or the contents of the designation, see: R v Trites, 2011 NBCA 5. The cases provided by both parties, while helpful and instructive are not, as both counsel concede, directly on point. Few decisions have touched upon the question of whether designated counsel may appear to enter a guilty plea and receive sentencing. There are cases such as R v Monger, where the court has examined whether it has the authority to allow designated counsel to appear on behalf of the accused for the entering of a guilty plea and sentencing. As found in Monger and explained below, it is clear that the court has authority to permit designated counsel to appear on behalf of the accused for these proceedings. The more difficult question to answer is when should the court exercise its discretion? Given the scarcity of case law on this specific question, a review of the statutory context, the specific provision and case law on related provisions assists in determining how the court is to go about exercising its discretion in this situation.

[24] In general, pursuant to subsection 650(1), an accused "shall be present in court during the whole of his or her trial." This subsection is subject to certain enumerated exceptions: "subsections (1.1) to (2) and section 650.01." Specifically, subsection 650(1.1) and subsection 650(1.2) entertain the appearance of the accused by video links. Paragraphs 650(2)(a) and 650(2)(c) provide two exceptions where the court may cause the accused to be removed, while paragraph 650(2)(b) allows a broad discretion for the court to "permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper."

The provisions are reproduced here:

650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

(1.1) Where the court so orders, and where the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken.

(1.2) Where the court so orders, an accused who is confined in prison may appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.

(2) The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or

(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.

[25] Section 650, unlike 650.01, is silent with respect to guilty pleas and sentencing. It imposes no special conditions for the entering of a guilty plea and sentencing. But subsection 606(5) — a part of the section stipulating conditions for valid guilty pleas—clarifies that subsections 650(1.1) & (1.2) apply to allow the accused to enter a guilty plea by video link. Section 606(5) reads:

(5) For greater certainty, subsections 650(1.1) and (1.2) apply, with any modifications that the circumstances require, to pleas under this section if the accused has agreed to use a means referred to in those subsections.

[26] With respect to sentencing, section 726 states that "[b]efore determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say."

[27] In most summary convictions matters, subsection 800(2) provides that counsel—or even an agent—may appear instead of the accused, without any restriction based on the particular proceeding. It reads:

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

[28] The above instances are subject to qualification and are, of course, not determinative of the issue before the court. However, they add to the contextual interpretation by supporting the notion that the accused is not absolutely required to attend to enter a guilty plea and/or to be sentenced.

Operation of Section 650.01

[29] Subsection 650.01(1) begins by setting out that "[a]n accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court." (Emphasis added) Notably, no order of the court is required for counsel to represent the accused, merely the filing of the designation.

[30] Subsection 650.01(2) speaks to the contents of the designation. The designation must, at a minimum, contain the name and address of the counsel, and must also be signed by both the accused and the designated counsel.

[31] Subsection 650.01(3) addresses the effect of filing a designation.

[32] Paragraph 650.01(3)(a) first states the accused may then appear by designated counsel without being present, but then continues, in subparagraphs 650.01(3)(a)(i) to (iii), to exclude certain parts of the proceedings. Respectively these are, "a part during which oral evidence of a witness is taken", "a part during which jurors are being selected", and "an application for a writ for habeas corpus." The words of the provision are restrictive, with no discretion given to the court to allow designated counsel to appear for the accused. The entering of a guilty plea and sentencing were not included under paragraph 650.01(3)(a).

[33] Paragraph 650.01(3)(b) clarifies that "the appearance by the designated counsel is equivalent to the accused's being present, unless the court orders otherwise." Thus, if a designation is filed, by default, the appearance of designated counsel is legally the same as if the accused were physically present. Therefore, an appearance by designated counsel is distinct from a proceeding in absentia and from ex parte proceedings. The accused is not absent and the proceedings are not without the other party—rather, the designated counsel is substituted for the appearance of the accused.

[34] Paragraph 650.01(3)(c), the provision at issue, states:

a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise. [Emphasis added]

Although this provision begins by stating that the entering of a guilty plea and sentencing may only be done in the accused's presence, the last clause "unless the court orders otherwise" indicates the court may make an order to the contrary—namely, that the accused need not be physically present but may attend by designated counsel. This interpretation is consistent with paragraph 650.01(3)(a); see also Trites, supra, at para 18.

[35] Finally, subsection 650.01(4) states the actions a court can take to compel the attendance of the accused, despite a designation of counsel having been filed.

[36] Section 650.01 in its entirety reveals two regimes, first, a default regime upon filing of a proper designation of counsel. Second, a discretionary regime whereby the court may modify the default regime to restrict or increase the ability of designated counsel to appear on behalf of the accused.

[37] By default, after filing a valid designation, an accused may appear through counsel for all parts of the proceedings, except for jury selection, where oral evidence is taken, an application for habeas corpus, entering a guilty plea, and sentencing. By order, the accused may, despite filing a designation, be required to physically attend any part of the proceeding. By order, the accused may also be permitted to appear by designated counsel to enter a guilty plea, and to receive sentencing.

Process for Determining Whether to Exercise Discretion

[38] Therefore, section 650.01 allows for the accused to appear through counsel to enter a guilty plea and receive sentencing, subject to two conditions. First, the appearance by designated counsel must not be specifically excluded under paragraph 650.01(3)(a). Second, judicial discretion must favour an order to allow the accused to appear through designated counsel. Furthermore, if these two conditions are met, the court may order additional requirements to safeguard the integrity of the justice system.

Excluded Situations

[39] As noted above, paragraph 650.01(3)(a) lists three situations where designated counsel are prohibited from appearing on behalf of the accused that are not subject to judicial discretion: during the taking of oral evidence, jury selection, or for an application for habeas corpus. Of these, only the taking of oral evidence is relevant in the context of entering a guilty plea and sentencing. Thus, before deciding whether the circumstances justify allowing designated counsel to appear on behalf of the accused for the plea and sentencing, the court must ensure that there will be no 'taking of oral evidence' on sentencing. Sentencing often involves the taking of evidence. The Code includes provisions for the taking of documentary evidence such as pre-sentence reports (s.721) and victim impact statements (s.722) as well as oral evidence (s.723(2)). Subsection 723(2) states that "[t]he court shall hear any relevant evidence presented by the prosecutor or the offender." Therefore, if the prosecutor or offender will present relevant oral evidence at the sentencing hearing, the court has no discretion to permit the accused to appear through designated counsel. Furthermore, subsections 723(3) and (4) provide for the court after hearing argument, on its own motion, to compel oral evidence where it is necessary in the interests of justice. Thus, even if the prosecution and the accused will not present oral evidence, the court may after hearing argument decide that oral evidence is required, which would also prohibit designated counsel from appearing on behalf of the accused.

[40] It is also worth noting that the video link provisions are even more restricted than section 650.01. Such an arrangement could provide a middle ground between requiring physical attendance and allowing attendance through counsel. However, in addition to the prohibition during the taking of oral evidence, subsection 650(1.1) requires the consent of the prosecutor and the accused. Subsection 650(1.2) does not require consent from both parties, but only applies when the accused is confined in prison. While paragraph 650(2)(b) allows the court to excuse the accused "on such conditions as the court considers proper", this must be read in its full statutory context. Given the limits on the use of video links, it would not be appropriate to interpret the broad, general discretion in paragraph 650(2)(b) as allowing what subsections 650(1.1) and (1.2) exclude.

Judicial Discretion to Extend

[41] If no oral evidence will be heard, then the court must decide whether to 'order otherwise' and allow the entering of a guilty plea and sentencing without the physical presence of the accused. The discretion provided by section 650.01 of the Code, and related provisions, must be exercised judicially; R v Young, 2003 BCSC 1446 at para 8. In such applications, the "court is asked to balance the public interest in having the accused physically present in the courtroom against the inconvenience, or any other reasons advanced by the accused, for not being required to be present"; Young, ibid.

[42] As mentioned above, few cases have considered when designated counsel may appear to enter a guilty plea and receive the sentence, pursuant to section 650.01. At one end of the spectrum, in Monger, supra, the Provincial Court of Newfoundland and Labrador allowed an application for designated counsel to appear by video or audio link on behalf of the accused. Monger concerned a summary conviction matter, however, the judge, operated under the understanding that section 650.01 applied to summary conviction matters pursuant to section 795. There is no indication that this arrangement was contested by the Crown. The judge did not engage in any balancing of interests—rather, he simply determined that he had the authority to make the order.

[43] On the other end of the spectrum, in Young, supra, the British Columbia Supreme Court dealt with a contested application under section 650(1.2) of the Code for the accused to appear at her sentencing by video link. Although a different provision of the Code, subsection 650(1.2) raises similar concerns as section 650.01. The accused had been convicted of second-degree murder and attempted murder. The crimes took place in a small community. The accused was being held in a correctional facility. She wished to appear by video link because otherwise she would have to spend one week in the RCMP cells in the local community. The conditions in the cells were deplorable: no visitors, no showers, no change of clothes, and no opportunity to exercise. The judge found that these conditions would amount to a significant hardship. The accused did not propose to make any statement during the process, or to call any evidence. Justice Barrow, however, denied the application, despite the virtual presence of the accused by video link. The virtual presence was acknowledged as being disconnected from the community. More importantly, Justice Barrow found that the significant hardship of the accused was outweighed by the public interest in the accused physically attending her sentencing hearing. Specifically, he identified the following factors as favouring society's interest: the nature of the proceeding, the seriousness of the offence, and the engagement of the community in the matter.

Young thus provides a helpful template for the application of judicial discretion for 650.01 matters. In deciding whether to exercise discretion, the court should weigh societal interest considerations against considerations of hardship to the accused.

A. 'Societal Interest' Considerations

[44] Societal interest considerations include the nature of the proceeding, seriousness of the offence, engagement of community in matter, respect for the courts, and maintaining the repute of the administration of justice.

(i) Nature of the Proceeding

[45] The entering of a guilty plea and sentencing are two of the most serious proceedings and raise considerable societal interests in the physical presence of the accused.

[46] Young, supra, considered the sentencing proceeding. The importance of sentencing strongly favoured societal interests in the accused's presence. Justice Barrow described sentencing as "the most crucial aspect of the trial process" and referred to Justice Dickson's decision in R v Gardiner, where Dickson J. held that "[t]he stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system."

[47] Furthermore, sentencing has a particularly human element to it, which lends itself to the physical presence of the accused. As Justice Campbell noted, in R v Fecteau (1989):

[48] There is another element involved here and that is the human element in the sentencing process. It is one thing for a judge to sentence to imprisonment a live human being who stands physically before the judge in open court. The judge before imposing a term of imprisonment at least has to look the accused in the eye. It may be quite another thing to sentence to imprisonment a disembodied television image that appears on a screen on the judge's dais. While the sentencing process has many faults one of its strengths is that it is at least a human process. It does not add to the human strength of the sentencing process to turn it into a disembodied exercise, electronic or otherwise.

[49] While sentencing and the entering of a guilty plea will always be strong factors favouring the physical attendance of the accused, neither is determinative alone. If either was determinative, it would be included as one of the absolute exclusions under paragraph 650.01(3)(a). Similarly, paragraph 650.01(3)(c) would not include the wording 'unless the court orders otherwise', providing for the possibility of designated counsel appearing on behalf of the accused at these proceedings. However, given the seriousness of each proceeding (the guilty plea and sentencing), it may be rare that the hardship to the accused outweighs this consideration.

(ii) Seriousness of the Offence

[50] The more serious the offence, the greater society's interest will be in the accused physically appearing to enter his or her guilty plea and to receive sentencing. For example, the accused in Young, supra, was convicted of second-degree murder and attempted murder, two of the most serious offences in the Code. As such, in that case this consideration factored strongly in favour of requiring the accused's physical presence.

(iii) Engagement of the Community

[51] The actual, distinct from abstract, interest and engagement of the public in a matter may also factor heavily. For example, Young, supra, was a notorious matter in a small community. The trial was attended by many community members as well as family of the victims. There was a strong indication that many members of the public would be attending the sentencing hearing. In such a situation, this factor strongly favours society's interest in requiring the accused's physical presence.

(iv) Respect for the Court and Repute of the Administration of Justice

[52] The court must maintain its dignity and respect. In United Nurses of Alberta v. Alberta (AG), Justice McLachlin, as she then was, stated that "[t]he rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect."

[53] As with all matters, the court must exercise its discretion in a way that maintains the reputation of the administration of justice. Put another way, the court should not exercise its discretion in a manner that would bring the administration of justice into disrepute.

[54] Relevant considerations here include safeguarding against miscarriages of justice—such as where an accused did not intend to plead guilty—as well as situations where the accused does not wish to attend court solely to avoid being charged for another offence or to attempt to evade a sentence of imprisonment.

B. 'Hardship to the Accused' Considerations

[55] Society's interest should be balanced against any inconvenience and hardship that the accused will suffer if required to personally attend. 'Hardship to the Accused' considerations may include illness, infirmity, financial hardship, travel, family responsibilities and, in some instances, deplorable confinement conditions.

(i) Illness and Infirmity

[56] Illness and infirmity are often included as relevant considerations—indeed often the most important considerations—for other procedural issues that contemplate excusing someone's physical presence. For example, the Rules of Civil Procedure, O Reg 194, R 1.08(5)(e), allow for evidence to be taken by video conference, and requires the court to consider "whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason." As another example, a sheriff may exclude a person summoned to sit for a jury due to illness, under section 23(2) of the Juries Act, RSO 1990, c J.3.

[57] This factor could strongly favour allowing designated counsel to attend in lieu in some cases. For instance, if the accused was bed-ridden and the only possible way for him to attend court to plead guilty and obtain sentence was through designated counsel.

(ii) Family Considerations

[58] If the accused is the primary caregiver to a young child or to a sick family member, this factor could militate strongly in favour of the allowing designated counsel. In other criminal procedural situations, such as jury selection, the court has recognized serious child care difficulties as a compelling circumstance to be excused from jury selection; see Re s 39 Juries Act Contempt Inquiry, 2011 ONSC 1105 at para 43.

(iii) Financial Hardship

[59] In situations where attending court would be a significant financial hardship, particularly where the accused is of very limited means, financial considerations may be relevant. It may be difficult for the accused to take time off work and not financially viable to lose a day's pay, or potentially more, depending on the length of travel. In addition, individuals traveling from out of town may not be able to afford the additional travel expenses.

[60] In other criminal procedural situations, such as jury selection, the court has recognized the prospect of significant economic hardship as a compelling circumstance to be excused from jury selection; see Re s 39 Juries Act Contempt Inquiry, ibid.

(iv) Travel

[61] The distance that the accused is required to travel may factor into his or her overall hardship. However, in R v Rasnitsyn, 2008 ONCJ 265, the court gave this factor little, if any, weight. That case featured an individual that was required to return to Canada from Russia for a preliminary matter (to obtain fingerprints). Mr. Rasnitsyn was charged with fraud and obtaining a passport by fraudulent means. Though a Canadian citizen, Mr. Rasnitsyn lived in Moscow, and had only appeared by his designated counsel under subsection 650.01(3) of the Code. Defence counsel raised the following factors for the court's considerations: the accused suffered from ailments; the accused no longer lives in Canada and has no surety; the accused was worried about being arrested and detained until trial; the accused's doctor was of the opinion he should avoid stress and long air travel; the accused was a father of a young baby. Nonetheless, the Court was not persuaded and required his attendance.

(v) Deplorable Living Conditions

[62] Though, perhaps less relevant outside of the context of confinement, this consideration factored heavily in Young, supra. Ms. Young, housed in Burnaby Correctional Facility for Women, would be held in the RCMP cells in Vernon that would restrict her access to visitors and would not allow her to change her clothes, shower, or exercise. The court noted that these conditions, coupled with the length of time they would have to be endured (as the sheriff was unable to transport her closer to the hearing date) could be avoided if she was allowed to appear by video link. Justice Barrow concluded that this factor alone would cause significant hardship to the accused.

Safeguards when Allowing Designated Counsel to Appear on Behalf of the Accused

[63] If the entering of a guilty plea and sentencing are to proceed with designated counsel appearing on behalf of the accused, certain safeguards should be put in place. Appropriate safeguards and alternatives may even factor into the exercise of judicial discretion, if they are able to alleviate some of the societal concerns present in a matter. For example, in Trites, supra, the New Brunswick Court of Appeal found that an election through designated counsel under section 536.2 was invalid, because the accused did not file a written document that confirmed his choice of election. Similarly, an accused person that wishes to have his or her designated counsel appear to enter a guilty plea, should complete a written document that satisfies the conditions for a guilty plea found in section 606 ("the plea inquiry").

Summary of Analysis

[64] The general statutory context and the specific provisions of section 650.01 support the notion that a court may permit an accused to enter a guilty plea and obtain sentence by designated counsel. Section 650.01 must be interpreted judicially, and requires the court to balance the public interest in having the accused physically present in the courtroom against the inconvenience, or other reasons, advanced by the accused, for not being present in the courtroom. Due to the serious nature of the proceedings of entering a guilty plea and sentencing, the accused must support his or her application with factors that show significant hardship to him or herself if required to physically attend. Factors that may support the court allowing for designated counsel to appear on a guilty plea and/or sentencing include: serious illness or infirmity, deplorable conditions in jail, family considerations, financial hardship, and excessive travel. Factors that may support requiring the accused to physically attend include: nature of the proceeding, seriousness of the offence, engagement of community in matter, respect for the courts, and maintaining the repute of the administration of justice. If the accused does appear through designated counsel, appropriate safeguards should be put in place to alleviate societal concerns.

Applying the Above Analysis to the Case at Bar

[65] With respect to the factors that may support the application being allowed. In this case, they might include the health of the Applicant, financial hardship to him, and the travel required of him to attend court.

[66] The Applicant has provided medical documentation which outlines his medical difficulties. In 2005 the Applicant suffered a head injury as a result of striking his head against an object at an amusement park. It would appear from that injury, initially, he suffered with a twitching rolling tremor of his right arm and leg, stuttering of his speech and anxiousness. As the years have passed he has been diagnosed with a sleeping disorder, bipolar psychiatric behaviour, epileptic-type explosive personality disorder, frequent headaches, cognitive impairment (described as mild to moderate), irritable bowel syndrome, erectile dysfunction and has recent memory defect. It is not clear from the materials provided which of those ailments, other than those initially observed in 2005, are directly related to the head injury. Suffice it to say, none of us would want to be in his shoes. The information regarding the Applicant's health comes from a Dr. Patrick Stodola, who also, according to his Curriculum Vitae ("C.V."), is a licensed lawyer as well.

[67] In the material filed by the Applicant, there is a letter authored by Dr. Stodola, dated January 23, 2014, wherein he is answering a question apparently posed to him by counsel for the Applicant. The question he is answering is, "Is Demetrius Walker capable of returning to Canada to participate in his trial proceedings?" The doctor answers that the Applicant is physically capable of attending Canada, but it is his opinion that he is not capable of returning due to his mental health. To support his position he gave his opinion as to the type of mental illness the Applicant suffers with, and then attempted to explain the effect that illness has on the Applicant. What I gathered from the doctor's letter is that the mental illness the Applicant suffers from is related to schizophrenia in that the Applicant struggles understanding the reality of situations.

[68] As the Crown rightly points out, upon looking at Dr. Stodola's C.V., it is clear that he is not a psychiatrist, nor a psychologist. I note he is 73 or 74 years of age and it is not entirely clear from the materials what areas of medicine he is involved in at this point in his life. He appears to have a varied background in medicine with experience in a general practice, including pediatrics, as well as a background in emergency room medicine and disability medicine to name a few. It would appear that he may have seen the Applicant in recent years due to his experience/knowledge in disability medicine. The Crown submits that the doctors' opinions are not admissible as they do not accord with the Mohan test. I must say, I struggled with the analogies/explanations the doctor expressed. They certainly caused me to question his expertise in the area of mental illness. I am not be prepared to consider his opinion without further questioning of him. I am also troubled by paragraph 13 of the Applicant's factum wherein it is stated that "the Defendant is now either unable or unwilling to return to Canada to address the charges in person". The Applicant's counsel appears not to be certain whether it is as a result of the Applicants health or that it is a voluntary choice he is making not to return. Therefore, since there is no physical reason why the Applicant is unable to return to Canada and there is insufficient evidence before me regarding his mental health being an impediment, this factor does not support the Applicant appearing by designation.

[69] With respect to financial hardship, the submissions of counsel suggest that it would be a financial hardship for the Applicant to return. It would appear he provides for himself through the support of disability payments. There is a lack of specifics regarding his financial situation, other than the statement in the factum that his financial situation is limited. That statement is supported by the fact that it took some period of time for the Applicant to come up with the bail money and the fact that he qualified for legal aid. Nonetheless, to return to Canada would require the accused at a minimum to drive or be driven from his residence. There are other ways which may be just as cost efficient, such as the Greyhound bus. The distance between where the Applicant lives (Country Club Hills, Illinois) and Windsor, Ontario is approximately 445 km, roughly a 4 hour and 15 minute drive. In my opinion, based on the information before me, this would not cause financial hardship towards the Applicant, at least not significant enough to override the factors supporting the Applicant being ordered to attend.

[70] The distance and time required for the Applicant to travel as set out in the preceding paragraph does not amount to an excessive distance for the Applicant to travel to appear in court. Therefore this factor also works against the Applicant's request.

[71] With respect to the factors that would require that Applicant to appear personally, the seriousness of the offences and the possibility of a jail sentence being imposed as a result of the nature of the offences and the aggravating factors favour having the Applicant attend personally. The necessity of conducting an in person plea inquiry to ensure there is not a miscarriage of justice given the submissions of the Applicant in their factum and reply (as highlighted by the Crown/Respondent) work against the granting of the application. Further, the totality of those factors demands the personal appearance of the accused to enter a plea and receive sentence in order to maintain respect for and to maintain the repute of the administration of justice.

Conclusion

[72] After much consideration of the submissions made by counsel, the review of the case law provided and the factors outlined above I have concluded the application to allow the accused to plead guilty and be sentenced through designated counsel should not be granted. The application is dismissed.

Dated: May 29, 2014

Justice Lloyd Dean