Ontario Court of Justice

Date: May 1, 2020

Court File No.: 0711 998 19 1543 00

Between:

HER MAJESTY THE QUEEN

— AND —

SHAWN RALF

Before: Justice Glen Donald

Heard on: April 29, 2020

Reasons for Decision released on: May 1, 2020

Counsel

Meaghan Jones — counsel for the Crown

Keli Mersereau — counsel for the accused Shawn Ralf

Decision

DONALD J.:

[1] On April 29, 2020, in imposing a suspended sentence with probation I dispensed with the formality of requiring Mr. Ralf to sign a copy of his order and I indicated that I would provide counsel with reasons for this decision. These are those promised reasons.

[2] The Province of Ontario finds itself amidst a global pandemic due to the outbreak of the Covid-19 virus. Everything is closed except for essential services; these restrictions are designed to stop the spread of the virus and ultimately to save lives.

[3] The service provided by The Ontario Court of Justice court and its staff is essential and therefore, despite this crisis, the court remains open. However, out of a concern for the safety of all justice system participants, at present, the court is sitting remotely. Proceedings are conducted by audioconference, with few exceptions that allow for proceedings to be conducted by videoconference. In either case, only a court clerk and court reporter are physically present in the courtroom, each of the other participants connects remotely to the conference often from their respective homes.

[4] This process has allowed the court to continue to remain operational, albeit at a capacity that has been greatly reduced. Trials are not being conducted but guilty pleas are being heard for individuals in-custody and for out-of-custody individuals if their matter is urgent. These severe restrictions are necessary and have been designed with a view of the safety of every justice system participant.

[5] The Covid-19 virus is spread from person to person by droplets. The science is such that the risk of transmission increases the closer one individual is to another. "Social distancing", a term coined as a direct result of the pandemic, refers to the act of always ensuring that we are at least six feet apart from another person.[1]

[6] It is in these circumstances that I accepted an urgent plea, by way of audio conference, from Mr. Shawn Ralf. After hearing submissions, I suspended the passing of sentence and placed Mr. Ralf on probation for a period of 12 months.

[7] Prior to the pandemic and its resulting requirement of "social distancing", having made the Order I would have moved onto the next matter on my docket without much further consideration for the fact that Mr. Ralf would have signed a paper copy of my probation Order in the presence of court staff.

[8] There can be no question that, however minimal, there is an increased risk of virus transmission when humans are near one another. Thus, having Mr. Ralf attend the courthouse to sign his probation order increases the risk that the virus could be transmitted, either way, between himself and the handful of police officers and court staff that he would inevitably have to come into contact with. To be clear, having Mr. Ralf attend the courthouse to sign his order increases the risk, however minimal, both for Mr. Ralf and other courthouse staff.

[9] Having regard to those risks and the provisions of the Criminal Code I therefore dispensed with the requirement that Mr. Ralf attend the courthouse to sign his order. Instead, he will receive a copy of my order at an email address that he provided during the audio conference. Where Mr. Ralf would ordinarily have signed, I typed "No signature required - Covid-19. See transcript". The copy that Mr. Ralf receives will serve to remind him of the procedures that can be employed to change an optional term of the Order. During the audio hearing, orally, he confirmed his understanding of the terms of the Order, which I had carefully explained to him, by referring to them as "straightforward". I also warned Mr. Ralf that a breach of his probation order constituted an offence prosecutable by indictment with the risk of jail.

[10] By taking the steps that I did, I was satisfied that I had complied with s. 732.1(5) of the Criminal Code, which reads:

The court that makes a probation order shall

(a) cause a copy of the order to be given to the offender and, on request, to the victim;

(b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1 to the offender;

(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and

(d) take reasonable measures to ensure that the offender understands the order and the explanations.

[11] Should my subjective belief as to compliance prove incorrect, I am mindful that s. 732.1(6) provides:

For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.

[12] While I have every confidence that Mr. Ralf understands and will fulfill the obligations that I imposed upon him, I remain mindful about the enforceability of my probation order in the absence of his signature and offer the following observations.

[13] First, the validity of my probation order is not in any way affected by the absence of Mr. Ralf's signature; there is nothing in the Criminal Code which requires a probation order to be signed by the person whom it governs. The probation order was valid once made. To the extent that his lack of signature could allow Mr. Ralf to argue that he was not aware of his conditions and thus cannot be held responsible for his non-compliance, I suggest that a transcript of the proceedings offers a full answer to those concerns.

[14] Second, the probation order requires Mr. Ralf to report to a probation officer. I suspect that his compliance with this term would afford the Crown with another avenue of "proving the breach".

[15] Third, the signature on the page has always been somewhat of an illusory method of proving an accused's awareness of the terms contained in the order. For instance, a claim of illiteracy is not meaningfully defeated by the appearance of a signature on the page. Moreover, prior to Covid-19, absent viva voce evidence, I do wonder how the Crown might prove that the person who signed the probation order was the recipient of the order.[2] Those concerns can only be heightened given the present manner that sentencing matters are proceeding.

[16] It seems to me that the task of a sentencing judge is to ensure that each individual we sentence understands the restrictions of liberty, obligations and risks, penal and otherwise that we impose through the orders we make. Communication is key. While obtaining signatures may serve to confirm that we have effectively communicated the terms of our orders, the former does not guarantee the latter.

[17] Thus, while the signature may represent a best practice, satisfied that Mr. Ralf understands the terms of my order, it is unnecessary in this case.

[18] Covid-19 has caused members of our society to reconsider many formalities that were previously of no moment. Like the handshake, the signature is a casualty to the "social distancing", safety imposed, requirements of the pandemic.

Released: May 1, 2020

Signed: Justice Glen Donald

Footnotes

[1] Six feet is the distance at which the virus will not transfer from one person to another.

[2] In St. Thomas, after the order is made, the accused leaves the courtroom to sign the order elsewhere without being asked to meaningfully confirm their identity.