Court Directive and Publication Ban

WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021·05·20 COURT FILE No.: Cobourg 190813

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Y.A.

Before: Justice S. W. Konyer

Heard on: May 19, 2021 Reasons for Judgment released on: May 20, 2021

Counsel: Ms. D. Bryant ......................................................................................... counsel for the Crown Mr. J. Lisowski ........................................................................... counsel for the accused Y.A.

KONYER J.:

[1] Y.A. is charged with touching a person under 16 with his hand for a sexual purpose, and with the sexual assault of a person under 16. These offences are alleged to have occurred between June 10, 2018 and June 10, 2019. The complainant in this case is 9 years of age. This matter is scheduled for a preliminary inquiry before me on May 21, 2021. When the preliminary inquiry was scheduled, it was scheduled to be heard in person.

[2] On April 26, 2021, on the advice of public health authorities in response to the increased spread of the Covid-19 virus, the Ontario Court of Justice announced the temporary suspension of in-person proceedings. This suspension remains in effect for Y.A.’s preliminary inquiry.

[3] As a result, the Crown brought an application for an order that PC DeBoer, the officer in charge of the investigation, be permitted to testify remotely at Y.A.’s preliminary inquiry, and an application for an order that Y.A. attend the inquiry by way of videoconference, which would allow the entire proceeding to be conducted remotely on the Zoom platform. Y.A. contests both orders. He argues that the order for remote testimony of PC DeBoer would impact the fairness of the proceedings, and he also argues that this Court does not have jurisdiction to order that he attend the preliminary inquiry remotely by way of videoconference without his consent. Even if I find that I do have jurisdiction to order his remote attendance without his consent, Y.A. argues that doing so would be unfair.

[4] I received and have reviewed written submissions of counsel as well as the authorities provided by them, and I heard oral argument on this application on May 19, 2021. At the conclusion of the oral argument, I ordered that the police witness could testify remotely pursuant to s.714.1 and 715.25 of the Criminal Code. I also ordered that Y.A. attend the preliminary inquiry remotely by way of videoconference pursuant to s.715.23, with written reasons to follow. These are my reasons.

[5] The application for the police witness, PC DeBoer, to testify remotely is governed by s.714.1 and 715.25, which together permit an order for remote witness testimony where doing so is appropriate having regard to a number of considerations including the accused’s right to a fair and public hearing. I am unable to understand how Y.A. would be prejudiced at a preliminary inquiry by having this witness testify by way of videoconference. Credibility is not in issue at the preliminary inquiry. If this witness testified in person at the present time, she would be masked and Y.A. would be observing her through layers of plexiglass. I fail to understand how he would be prejudiced by seeing and hearing her testify by videoconference where she would be unmasked. The reasons for the Crown’s request to have her testify remotely are legitimate and rooted in public health concerns. This application is granted.

[6] With respect to the application for an order to have Y.A. attend the preliminary inquiry remotely by videoconference, I must decide first if I have jurisdiction to make the order. If not, then that is the end of the matter and Y.A.’s preliminary inquiry must be suspended. If I do have jurisdiction to make the order, then I must go on to consider whether it is appropriate to do so in the circumstances of his case.

[7] I agree with and adopt the analysis of the jurisdictional issue conducted by Kenkel J. in R. v. Jassem, 2021 ONCJ 83, at para. 9-13. It is unfortunate that Parliament did not amend the provisions of the Code dealing with the personal attendance of accused persons at preliminary inquiries and trials [ss.537 and 650] to accord with recently enacted provisions authorizing remote proceedings contained in s.715.21-26. The former sections require the consent of the accused to proceed in his or her absence, while the latter sections permit the court to order that an accused appear remotely where the court determines that doing so is appropriate, and do not require the consent of the accused.

[8] In the case before me, Y.A. argues that I have no jurisdiction to order that his preliminary inquiry proceed remotely without his consent. He points to s.537(1)(j) which permits an accused to appear by videoconference with their consent for any part of a preliminary inquiry other than a part in which the evidence of a witness is taken. Since s.715.23 is qualified by the phrase “except as otherwise provided in this Act” it follows, according to Y.A., that he can only appear by videoconference for any part that does not involve the taking of evidence, and even then only with his consent. In my view, however, s.537(1)(j) is limited to circumstances where the preliminary inquiry occurs in a traditional, physical courtroom and the accused wishes to participate in that proceeding by remote attendance. This explains the inclusion of the phrase “or by closed circuit television” in that section, and the section restricts the circumstances in which such appearances can occur. The fact that this section permits an accused to appear by alternate means to personal attendance for routine appearances in a traditional courtroom during a preliminary inquiry does not mean that these are the only circumstances in which an accused can appear by videoconference at a preliminary inquiry.

[9] I agree with Kenkel J. that s.715.23 provides for an alternate route for attendance by videoconference at “a proceeding”, a term which includes preliminary inquiries. The section permits a court to “order” an accused to attend a proceeding by videoconference where the criteria in that section are met. There is no necessity to obtain the consent of the accused. This section is contained within Part XXII.01 of the Criminal Code, which provides for the remote attendance of various participants, including counsel, witnesses, the accused and the Judge. Section 715.23, which deals with accused persons specifically, would be meaningless if s.537(j) were the only means by which an accused could appear by way of videoconference. This is not a result that Parliament could have intended. Parliament’s intent is clearly spelled out in s.715.22 – to permit attendance by videoconference in order to “serve the proper administration of justice”.

[10] If I make the order sought by the Crown, then the entire proceeding can be conducted remotely. All participants including witnesses, counsel, the accused and I will be present in a virtual court. During the course of the current pandemic, justice participants have gained experience conducting all manner of virtual proceedings. I am satisfied that if I make the order sought, Y.A. will be a full participant in the proceeding in the same way he would as if the proceeding were conducted in a physical courtroom. I conclude that Part XXII.01 of the Criminal Code provides me with the authority to order that the proceeding be conducted in this manner, and that s.715.23 specifically provides me with the authority to order that Y.A. attend those proceedings virtually. His consent is not required.

[11] McKay J. reached the opposite conclusion in R. v. Jeffries, 2021 ONCJ 98 when considering whether an accused’s consent was required to order them to appear by videoconference at a trial. This conclusion was reached based on the wording of s.650(1.1) which requires the presence of an accused person during any part of their trial where evidence is heard. McKay J. held that without the consent of the accused, the court had no jurisdiction to make an order requiring the accused to attend the trial by videoconference. Although Jeffries dealt with a trial rather than a preliminary inquiry, I agree that the wording of s.650(1.1) and s.537(j) are sufficiently similar that the reasoning in this case should be considered persuasive authority for the position advanced before me by Y.A.. [1] Therefore there are two different decisions of this court – Jassem and Jeffries – in which different Judges have reached different conclusions. I prefer and adopt the reasoning in Jassem for the reasons I have already given.

[12] Since I have concluded that I have jurisdiction to order Y.A.’s remote attendance at his preliminary inquiry, the question becomes whether it is appropriate to do so in the circumstances of his case. The exercise of my discretion is guided by s.715.22, which provides that “the purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of the court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.”

[13] By appearing at his preliminary inquiry remotely, Y.A. will be attending the functional equivalent of a courtroom. He will be able to see and hear the Crown, the witnesses, his lawyer and the Judge. He will be able to speak to his lawyer in private using the breakout room function at any time. He can make himself heard just as he would if he were before me in a physical courtroom. His counsel will be able to cross examine both witnesses fully and to make complete submissions as to whether the Crown has met the test for committal. As Latimer J. aptly observed in R. v. Mischuk, 2021 ONCJ 202 at para. 5, “[j]ustice is not a place, it is a service.” In every way that matters, Y.A. will be present at his preliminary inquiry if I order that he attend by videoconference in a virtual court. Justice can be served fully through a preliminary inquiry conducted in this manner.

[14] I also note that the child complainant will be appearing remotely in any event, whether the preliminary inquiry is conducted in a traditional courtroom or in a virtual court. The case management form filed following the judicial pre-trial in this case indicates that the Crown will make an application for the complainant to testify from outside the courtroom, pursuant to s.486.2(1). The order is mandatory unless the court is satisfied that making the order “would interfere with the proper administration of justice.” It is telling, in my view, that Y.A. does not object to this order being made. Whether the preliminary inquiry occurs in a physical or virtual courtroom, he will see and hear the testimony of the complainant in precisely the same manner – on a video screen.

[15] I also take into account the significant delay which has already occurred in this case. Y.A. was arrested in August 2019, but by the time the Covid-19 pandemic began affecting court operations in March 2020 his case still had not been set down for a preliminary inquiry. Although I do not know the reasons for all of that delay, this is clearly an excessive period of intake for charges of this nature. Part of the delay appears to be the result of a change in counsel. Since the onset of the pandemic, there has clearly been significant further delay. Although much of that period is likely the result of the effect of the pandemic on the court’s ability to schedule matters, the overall result is that Y.A.’s case has already been languishing for far too long. In my view it is not in the interest of the administration of justice to delay this matter any further for no good reason. All justice system participants, including accused persons and defence counsel, have an obligation to act reasonably in order to ensure that cases proceed efficiently. These considerations favour granting the order sought by the Crown.

[16] Y.A. was not present for the hearing of this application, at his own request. However, his counsel informed me that he is able to participate in his preliminary inquiry remotely by videoconference. His opposition to a remote proceeding is based on principles of fairness. He claims that he is entitled to personally confront the witnesses at his preliminary inquiry, and that the fairness of the proceedings would be undermined if he were not able to physically sit next to his lawyer. I disagree. Even if in-person proceedings were not currently suspended, Y.A. would not be in the same physical location as either witness. Further, his ability to communicate with counsel will not be hampered by having the preliminary inquiry proceed remotely.

[17] The function of the preliminary inquiry is to determine whether there is sufficient evidence for committal. Preliminary inquiries also serve an important screening function and protect accused persons from exposure to unnecessary trials if the evidence is lacking. I am satisfied that these functions can be fulfilled in a virtual court. There is nothing that could be accomplished if the proceedings were conducted in a physical courtroom that cannot be accomplished by conducting the proceedings remotely. Y.A. will not be deprived of his right to be meaningfully present at his preliminary inquiry, nor will he be compromised in his ability to challenge the Crown’s case. I find that he would suffer no prejudice if I were to order that the entire preliminary inquiry be conducted remotely by videoconference.

[18] It appears to me that Y.A.’s refusal to consent to remote proceedings is based on a desire to manufacture more delay in his case rather than for any legitimate purpose. His request to have his preliminary inquiry proceed in a physical courtroom in these circumstances does not have a good faith basis. The only conclusion I can reach is that his opposition to this application is a calculated and deliberate tactic aimed at causing delay.

[19] Applying the statutory criteria set out in sections 715.22 and 715.23 to Y.A.’s case, I find that an order permitting his preliminary inquiry to proceed remotely by way of videoconference would serve the proper administration of justice. It would allow his case to proceed in a fair and efficient manner. It would also enhance access to justice, not only for Y.A. but also for the complainant and the public, who also have an interest in seeing a timely resolution of this matter. His circumstances permit the proceedings to occur effectively by videoconference. For the reasons already given, conducting the proceedings remotely would have absolutely no impact on the fairness or the public nature of the proceedings. There is also nothing about the nature or seriousness of the allegations that would require this preliminary inquiry to be held in person rather than remotely. I therefore order that Y.A. is to attend his preliminary inquiry by way of videoconference pursuant to s.715.23(1) of the Criminal Code.

Released: May 20, 2021 Signed: “Justice S. W. Konyer”

[1] An application to the Superior Court of Justice by the accused in Jeffries to quash other orders made by McKay J. (that the Crown, witnesses and Judge could appear by videoconference) was dismissed – see R. v. Jeffries, 2021 ONSC 1983. This decision, which is not an appeal judgment, did not address the jurisdictional issue at issue in Y.A.’s case.