Ontario Court of Justice
Date: 2021 02 19
Parties
Between: Her Majesty The Queen — And — Jamie Jeffries
Presiding Judge
Before Justice A. T. McKay
Hearing Dates
Submissions heard on: February 12, 2021 Ruling as to whether the Trial will proceed by Videoconferencing released on: February 19, 2021
Counsel
Counsel for the Crown: Mr. V. Karadzic Counsel for the defendant Jamie Jeffries: Ms. S. Krug
McKAY J.:
Background
[1] This is a matter which has been before the Court for a significant time. Mr. Jeffries is charged with aggravated assault, assault causing bodily harm, common assault, two counts of mischief and three counts of breaching his release terms. The substantive incidents are alleged to have occurred October 11, 2018 and November 22, 2018. The court heard a pre-trial application under s. 276 and delivered rulings on February 28, 2020. The onset of the pandemic then delayed the matter for almost a full year. The trial is to be continued February 24-26 and March 2.
[2] The Crown originally assigned to the file has recently left the Crown Attorney’s office, resulting in the assignment of a new Crown to the file.
[3] The Court caused this matter to be brought forward to hear submissions from the parties as to whether the court should make an order that the trial continuation should proceed in-person, remotely by video, or in a hybrid fashion with some parties appearing by video. Mr. Jeffries is not in custody.
The Position of the Crown
[4] The Crown indicated that originally, the Crown was willing to appear in person at trial. However, the assigned Crown has just learned that, for personal reasons, the assigned Crown cannot appear in-person until further notice. Inquiries have been made, and it is not possible to assign another Crown to the file in time to proceed on February 24. Accordingly, if the Crown is required to appear in-person at the trial, the Crown would be forced to seek an adjournment.
[5] The Crown also indicated that, if the court is prepared to proceed by video and the accused is unwilling and the trial is delayed, if the defence was to bring an application for delay, the Crown will take the position that the unwillingness of the accused to proceed by video constitutes an implicit s. 11(b) waiver.
[6] The Crown’s most recent understanding is that the complainant has not indicated an objection to testifying at an in-person trial. My understanding is that conversation took place without any indication of the possibility that either or both the Crown and presiding judge might participate remotely. The Crown also intends to call an expert witness and did not anticipate the defence objecting to that witness appearing remotely.
The Position of the Defence
[7] The defence does not consent to the matter proceeding by video. The defence submits that in the absence of consent, trial fairness would be affected. The defence points out the serious nature of the charges and indicates that the accused wants his day in court. The evidence is not technical, rather it is highly contentious and emotional. The defence submits that for the court to properly assess credibility, the parties should be in the courtroom. The ability to observe the face of the complainant and her body language is said to be an important part of the assessment of credibility.
[8] The defence also refers to the historical significance of public trials and the ability of people to walk in and out of the courtroom. Counsel does not wish to comment on her client’s personal circumstances, and accordingly cannot say where her client would appear from if ordered to appear remotely. Counsel does not have appropriate facilities in place at her office to allow the accused to appear from that location. Given the precautions in place at public courthouses, the defence submits that the trial should take place in-person.
[9] The defence also takes the position that any insistence by the accused to an in-person trial is not a waiver of s. 11(b) if the matter is adjourned.
The Court
[10] The court also advised counsel, that for personal reasons, at present I am unable to preside over in-person proceedings. That is a second potential cause for an adjournment.
Criminal Code Amendments
[11] At the onset of the pandemic in 2020, courts were extremely restricted in operations. Trials and preliminary inquiries were shut down completely for a period of time. Guilty pleas and judicial pre-trials took place remotely. The resumption of trials was phased in over the summer and fall months. The cancellation of many trials and preliminary inquiries has caused backlogs in scheduling.
[12] On September 19, 2019, Bill C-75 brought in significant changes aimed at expanding the use of video and audio technology to “ensure fair and efficient proceedings while enhancing access to justice”. Part XXII.01 dealing with remote attendance by certain persons was added to the Criminal Code in ss. 715.21 - 715.26. Remote witness testimony is still governed by the amended ss. 714.1, 714.2 and 714.3.
[13] Statutory courts such as this court have jurisdiction to control its own processes within the limits of any applicable statutes. (see Ontario v. Criminal Lawyers Association 2013 SCC 43 at para. 44, R. v. Cunningham, 2010 SCC 10 at para. 19).
[14] The Crown proceeded by indictment in this matter. For indictable matters, the presumption in section 650(1) of the Code is that the accused is to be present in person at the trial. The amendments brought in by Bill C-75 now authorize appearance by video conference for the accused, witnesses, participants and the presiding judge. Sections 715.23-715.25 are prefaced by the words “Except as otherwise provided in this Act”, so the existing provisions of the Code must also be considered. The provisions in Bill C-75 made minor amendments to ss. 650(1.1) or (1.2). Those sections were introduced in 2007 when videoconferencing was introduced for preliminary proceedings where no trial evidence was taken.
[15] Section 650(1.1) provides for an accused to appear by counsel or closed-circuit television or video conference or any part of a trial other than a part in which evidence is heard. Section 650(1.2) makes provision for an in-custody accused to appear by closed-circuit television or video conference or any part of a trial other than a part in which evidence is taken if the accused is given the opportunity to communicate privately with counsel, if represented by counsel. Section 650(2) allows an accused to be out of the courtroom during a trial in specified limited circumstances.
Case Law
[16] Read alone, the provisions of s. 650 might appear inconsistent with the new amendments. Courts have held that there is jurisdiction to have an accused attend via videoconference during evidentiary portions of a trial if the accused consents (see R. v. Gibbs, 2018 NLCA 26 at paras 45-86). In a case involving a joint request by the Crown and defence to have the accused attend the entirety of his indictable sexual assault trial via videoconference, Lemon, J. ruled that s. 650(2)(b) can be used in conjunction with s. 715.23 to permit a trial to proceed by videoconferencing (see In Re: Court File No. 19/578, 2020 ONSC 3870).
[17] In R. v. Daley, [2020] O.J. No. 1723, Monahan, J. dealt with the ability of a consenting, in-custody accused represented by counsel to enter a guilty plea by audio. The court concluded that there were two pathways for the accused to enter a guilty plea by audio. The first pathway was s. 650(2)(b) and the second was s. 715.23. In reviewing the relevant provisions, the court concluded at para. 13:
It is clear that section 650 requires that an accused be physically present at his or her trial, unless an order is made under subsection 650(1.1), (1.2), or (2) or section 650.01 (the Counsel designation section) applies. Subsection 650(1.1) and (1.2) permit the accused in certain circumstances to appear by video except where evidence is being given by a witness.
[18] The court goes on to state at paras. 19 and 20:
…It seems clear that subsection 650(2)(b) requires the consent of the accused and this is reflected in the use of the words “permit the accused”. That subsection does not require the consent of the prosecutor. On the other hand, subsection 650(1.1) requires the consent of both prosecutor and the accused. Subsection 650(1.2) it is just the opposite and does not require the consent of the prosecutor or the accused. The point here is that there are differences amongst subsections 650(1.1), (1.2), and 2(b) with each of them being relevant and applicable in somewhat different circumstances.
I appreciate that subsection 650(2)(b) (and (1.1) for that matter) involve an element of waiver ( see R. v. Fecteau (1989), 49 C.C.C. (3d) 534 (Ont. H.C.) ).
[19] That interpretation was commented favourably upon in R. v. Chizanga, 2020 ONSC 3090 at para. 5:
- The defence submitted that the accused need not waive their right to be physically present for the sentencing to be done remotely. That cannot be accepted. The accused/offender has both the right and obligation to be present by reason of ss. (1). In order to give up that procedural right and make available ss. 1.1, there must be a valid waiver: Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 (S.C.C.) at paras. 13-16. In this connection, Justice Monahan recently held that a waiver of physical presence is required under section 650(1.1): see R. v. Daley, 2020 ONCJ 201 (Ont. C. J.)
[20] That is to be contrasted with the approach of the court in R. v. Salloum Jassem, et al, 2021 ONCJ 83. That decision involved a preliminary inquiry which commenced by videoconference. One of the accused then brought an application to cease attendance by videoconference and attend in person. The court found that it had jurisdiction to order the accused to continue to appear by videoconference and made that order.
[21] In R. v. Patriquan, 2021 ONSC 359, the accused entered a guilty plea to several indictable offences and was convicted on the basis of an agreed statement of fact. The defence brought a constitutional challenge to the mandatory minimum sentence applicable in the case. The accused wanted the sentencing hearing conducted in person. In a brief endorsement, the court made an order that the presiding judge and Crown counsel would appear remotely, while the accused and his counsel would appear in person in the courtroom.
The Evolution of the Pandemic
[22] I take judicial notice that the science related to the pandemic continues to evolve. That is inevitable and is a recognition of the need to practice the precautionary principle articulated by Justice Campbell in the report on the SARS inquiry. Originally in this pandemic, concern focused on fomite transmission of the virus. Early advice was that the wearing of masks was only necessary for frontline medical personnel. As knowledge was enhanced, aerosol transmission became the primary concern. The wearing of masks is generally accepted to be the most effective way to minimize the spread of the virus.
[23] On February 12th, after consultation with the Deputy Attorney General following four outbreaks at Ontario court houses, the Chief Justices of all three levels of court in Ontario issued a memo regarding new and enhanced masking requirements for Ontario court houses. Those requirements took effect on February 16. They are at least in part a recognition of the increased risk of transmission of new variants of the virus.
[24] It is within this context that judges must make decisions which balance issues such as the right to a fair trial, the open court principle, the health and safety of all those who attend a court proceeding, and the health and safety of our communities as a whole given the risk of transmission of the virus throughout communities. The efficient functioning of the court system is also a consideration. Every time an in-person proceeding is scheduled, there is a risk that a necessary participant may not pass the screening tools used to gain entry to the courthouse, resulting in further delays. Every time that a matter is adjourned, it adds to the existing backlog.
Analysis
[25] Section 715.22 provides the following:
The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audio conference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.
[26] Section 714.1 and 715.23-15.26 contain detailed criteria that must be considered when assessing whether a matter should proceed by videoconference. The court must consider the particular criteria set out in the Code provisions for each participant.
[27] The new provisions of the Code appear to allow and encourage courts to adopt video technology in order to meet the purpose described in s. 715.22. However, sections 650(1.1) and 650(1.2) must be reconciled with provisions enacted in Bill C-75. The provisions of the Code must be read as a whole. That requires a purposive approach consistent with the rules of statutory interpretation that the legislature intends each provision to have meaning and does not intend to produce absurd consequences. A different approach would frustrate the legislative intent in enacting the provisions of Bill C-75. I also note the requirement in s. 715.23(2) for the court to provide reasons for refusing to make an order under s. 715.23(1). That reveals a legislative intention in favour of remote appearances where the statutory criteria enumerated in the provision are met.
[28] The court is entitled to control its own process in a matter that is consistent with its statutory framework. An accused is not entitled to a perfect trial or a trial conducted in the fashion that the accused believes is most favourable to the accused. An accused is entitled to a fair trial.
[29] I am satisfied that a trial conducted by videoconference can meet the requirements of the open court principle. Members of the public are able to watch the trial and hear the evidence, the submissions and ultimately the decision. In the current pandemic situation, a trial by videoconference likely makes the trial more accessible to members of the public than an in-person trial.
[30] I take judicial notice of the realities of the pandemic, including the increased transmissibility of new variants of the virus. I take judicial notice of the impact of the pandemic on in-person proceedings. The provincial strategy to minimize the spread of the virus has emphasized minimizing public gatherings. The strategy regarding the reopening of the courts has emphasized minimizing the number of people attending a courthouse. Those strategies recognize the risk of spreading the virus every time people gather in indoor environments. Steps have been taken to minimize the risk in court, including plexiglass barriers. However, those barriers do not eliminate the risk of aerosol spread. The recent changes to the masking policies recognize that.
[31] The two incidents which gave rise to these charges occurred on October 11, 2018, and November 22, 2018. Due to the inability of both the Crown and the court to attend in-person proceedings, unless both the Crown and the court attend remotely through videoconference, the matter will be adjourned. Rescheduling a multi-day trial continuation at any time leads to delays. Given the backlog created by the pandemic, the delays may be substantial.
[32] As with every trial in this court, the trial will proceed by judge alone. There is a limited number of witnesses. Trials by videoconference have been conducted many times around the province. I have been involved in multiple trial or preliminary inquiry proceedings by videoconference, including a sexual assault trial and a lengthy murder preliminary inquiry. The technology has worked effectively. I have yet to encounter significant delays in a proceeding conducted by videoconference. I have had an in-person proceeding re-scheduled because an individual involved was unable to pass the screening criteria to enter the courthouse.
[33] The defence suggests that in order to effectively assess credibility, the court must observe the face and body language of the witnesses. The value of demeanour evidence is often overstated. During the pandemic, anyone appearing in a courtroom that I preside over is required to remain masked the entire time the person is in the courtroom, including when court is not in session. Therefore, proceeding in person would eliminate the ability of the court to see the face of the witness, and would make observing demeanour through layers of plexiglass more difficult. If the witnesses testify by videoconference, they can do so without a mask. The court has a close-up view of the witness, thereby enhancing the court’s ability to assess demeanour.
[34] In addition, I have conducted in-person trial proceedings with everyone in the courtroom masked. It is uncomfortable. It can be much more difficult to hear what witnesses, counsel or the court are saying. In my experience, proceeding in person and complying with the health and safety required to combat a pandemic is more difficult, onerous and may have a more deleterious effect on fairness of trial than proceeding by videoconference. It also increases the risk of transmission of the virus throughout the community.
[35] Notwithstanding those concerns, I am constrained by the statutory framework. Parliament made minor changes to the wording of section 650(1.1) and (1.2) in Bill C-75. However, it did not change the substance of subsection (1.1), which requires the presence of the accused in those portions of a trial where evidence is heard. In my view, Parliament has chosen to differentiate those portions of a trial where evidence is not heard, and to permit the court to order an accused to appear by audio or video conference for those portions of the trial. However, Parliament has chosen to maintain the requirement that an accused be present in person in the courtroom for those portions of the trial where the evidence of a witness is taken. Section 650(2)(b) would allow the court to permit the accused to be out-of-court during the whole or any part of his trial. However, I find the rationale of Monahan, J. in Daley compelling. I am persuaded that by using the words “permit the accused” the provision requires the consent of an accused to make an order under that subsection. Absent consent, I do not have the jurisdiction to make that order.
Ruling
[36] Subsections 650(1.2) and (2) are not applicable in this case. Mr. Jeffries does not agree to appear by videoconference. Section 650(1.1) requires Mr. Jeffries to attend court personally for the trial. His counsel may attend in person with him.
[37] As indicated, neither Crown counsel nor the court can appear in-person. An adjournment will delay this matter further. Trial fairness is not impacted by Crown counsel appearing by videoconference. I am satisfied that given the Crown’s personal circumstances, an assessment of the criteria in section 715.25 justifies the Crown appearing by videoconference.
[38] I see no reason why the expert witness that the Crown anticipates calling need appear in person. Having that witness appear by video conferencing is efficient, promotes public health and safety, and does not impact trial fairness. That witness may testify by videoconferencing.
[39] The strongest objection made by the defence relates to the potential of having the complainant testify remotely. Section 486.2(2) of the Code provides that, “despite section 650”, the court may, on the application of the prosecutor, or on the application of a witness, allow the witness to testify from outside of the courtroom. No such application has been brought in this case. However, use of that provision routinely results in a complainant testifying by video, without raising issues of trial fairness. The constitutionality of the provision has been upheld.
[40] Section 714.1 provides that a court may order that a witness in Canada give evidence by audio conference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances. The subsection then goes on to include a non-exhaustive list of considerations which should be included in the court’s assessment. There is no reference to section 650 contained in this provision.
[41] In R. v. S.D.L. (2017), 2017 NSCA 58, 352 C.C.C. (3d) 159 (N.S.C.A.), the court held that where credibility is at issue, the court should authorize video testimony under this section only in the face of exceptional circumstances that impact the proposed witness. In reaching that conclusion, the court discusses the ability to assess demeanour as part of the assessment of credibility and the court’s truth-finding function. Technical issues with respect to the video conferencing evidence at trial also formed part of the court’s decision in ordering a new trial. Significantly, the court makes no mention of s. 650(1.1) operating as a barrier to a court’s ability to make an order for a witness to testify remotely pursuant to s. 714.1. I conclude that s. 650(1.1) should not be interpreted as restricting the court’s ability to order that a complainant testify by videoconference pursuant to s. 714.1.
[42] The charges in this case are serious. They include charges of aggravated assault, assault causing bodily harm, common assault, mischief and multiple counts of breaching release terms. Given the fact that the allegation relates to serious crimes of violence against the complainant, in my view it would not be appropriate for the complainant to testify in person in a courtroom where neither the Crown nor the presiding judge are present. As indicated, the court is not in a position to preside over an in-person proceeding.
[43] I am of the view that given the current pandemic conditions and the safety precautions in place in the courtroom, the court will be in a better position to assess demeanour evidence if the witness testifies remotely by videoconferencing. An order that the complainant testify in that fashion does not impact the fairness of trial.
[44] The complainant will testify by videoconference. Prior to the trial date, the Crown will communicate with the court and the defence through the trial coordinator’s office outlining the suitability of the proposed location from where the complainant will give evidence. If there is anything that needs to be addressed related to that issue, counsel will arrange an appearance before me prior to the trial date.
Released: February 19, 2021 Signed: Justice A. T. McKay