Court File and Parties

CITATION: In Re: Court File No. 19/578 2020 ONSC 3870 COURT FILE NO.: 19-0578 DATE: 2020 06 22

ONTARIO SUPERIOR COURT OF JUSTICE

In Re: Court File No. 19/578

J. MacDonald and J. Forward for the Crown D. Robitaille and S. Hopkins for the Defendant

HEARD: June 8, 2020

Justice G.D. Lemon

ruling procedural issues re: virtual trials (Crown’s Application)

The Issue

[1] Although both parties have requested that this matter be tried over the Zoom platform, they seek a ruling on the authority to proceed on that basis. They jointly submit that the court has authority to order such a trial despite some disagreement within jurisprudence to date. I have already ruled that we could proceed in that fashion for written reasons to follow. These are those reasons.

[2] The trial has already been held with an order prohibiting publication pursuant to s.486.4 of Criminal Code, R.S.C., 1985, c. C-46 (Code). Counsel have suggested the title of proceedings set out above so that this decision can be released for the benefit of others while the COVID-19 pandemic continues.

[3] Both counsel have provided written submissions on the issue. I am grateful for their submissions (I have taken liberally from their factums) and their hard work in making this trial run fairly and efficiently. The learning curve has been steep for all of us; however, in my view, this case showed that a perfectly appropriate trial can be held by Zoom. But it requires the hard work and assistance of counsel, the parties, and the court staff to make it work. Without that, the process cannot be successful. The trial judge is the least inconvenienced by this new reality.

[4] This ruling was made in advance of the trial and what happened at the trial is not part of the analyses; however, the reader may wish to know that the trial included two witnesses, four days of trial and one day of argument. A mid trial voir dire dealt with opinion evidence. There were no significant technological issues. Documents were dealt with seamlessly and did not interfere with the flow of evidence. While there were delays, they were the same as any other trial in the normal circumstances.

Background

[5] The accused is charged with sexual assault.

[6] Early on, both the Crown and defence requested that the matter proceed by way of a “virtual trial” such that the accused be permitted to be absent from the courtroom subject to terms and conditions that included that he observe and participate by remote video conferencing software, specifically “Zoom.” I can take judicial notice of the realities of the pandemic. See R. v. Morgan, 2020 ONCA 279, at para. 8.

[7] A written agreement has been signed and filed as a protocol for the trial procedure. The accused has signed a “Waiver and Consent” to a virtual trial. The accused has had counsel throughout.

[8] Prior to the trial, counsel, the accused, witnesses, court staff and I have jointly and severally practiced with the Zoom videoconferencing software to confirm that it could allow real time audio and video communication. All involved in the trial, and those who wished to observe, could see and hear each other simultaneously.

The Law

[9] The Crown asks that I find that the accused’s right to be present at his trial pursuant to s. 650 of the Code is a procedural right. Simple consent from the accused for the procedure is not a cure-all for jurisdictional deficiencies. Litigants, however well-motivated, cannot re-write legislation. If a judge cannot legally do something, consent will not vest a judge with authority to make an order the judge cannot make.

[10] Both parties submit that s. 650(2)(b) of the Code provides the necessary jurisdiction to allow the trial process that they request. They agree that s. 650(2)(b) vests me as trial judge with the power to allow this accused to be absent from his trial.

[11] Section 650 of the Code provides [emphasis mine]:

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) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken.

(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are 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.

[12] Bill C-75 enacted ss. 715.21 - 715.23 of the Code. That section provides [Emphasis mine]:

715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

715.22 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 court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

715.23 (1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the accused;

(b) the costs that would be incurred if the accused were to appear personally;

(c) the suitability of the location from where the accused will appear;

(d) the accused’s right to a fair and public hearing; and

(e) the nature and seriousness of the offence.

(2) If the court does not make an order under subsection (1) it shall include in the record a statement of the reasons for not doing so.

(3) The court may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that the court considers appropriate in the circumstances to have the accused appear at the proceeding.

715.24 Despite anything in this Act, if an accused who is in prison does not have access to legal advice during the proceedings, the court shall, before permitting the accused to appear by videoconference, be satisfied that the accused will be able to understand the proceedings and that any decisions made by the accused during the proceedings will be voluntary.

715.25 (1) In this section, participant means any person, other than an accused, a witness, a juror, a judge or a justice, who may participate in a proceeding.

(2) Except as otherwise provided in this Act, the court may order a participant to participate in a proceeding by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the participant;

(b) the costs that would be incurred if the participant were to participate personally;

(c) the nature of the participation;

(d) the suitability of the location from where the participant will participate;

(e) the accused’s right to a fair and public hearing; and

(f) the nature and seriousness of the offence.

(3) If the court does not make an order under subsection (2) it shall include in the record a statement of the reasons for not doing so.

(4) The court may, at any time, cease the use of the technological means referred to in subsection (2) and take any measure that the court considers appropriate in the circumstances to have the participant participate in the proceeding.

(5) Unless the court orders otherwise, a party who has a participant participate by audioconference or videoconference shall pay any costs associated with the use of that technology.

[13] Sections 715.21 - 715.23 of the Code obviously allows for a virtual trial but only if it is not “otherwise provided in this Act.” Counsel are therefore concerned with whether s. 650 allows for such a proceeding.

[14] Section 650 has been the subject of two recent decisions from the Ontario Court of Justice during the COVID-19 pandemic. The Crown submits that these two judgments are at odds.

[15] In R. v. Candelaria, 2020 ONCJ 194, Downes J. accepted the reasoning in R. v. Walker, 2014 ONCJ 271, at para. 40, that “it would not be appropriate to interpret the broad general discretion in paragraph 650(2)(b) as allowing what subsection 650(1.1) and (1.2) exclude.” Justice Downes reasoned that:

[T]he plain statutory purpose of section 650(2)(b) is to allow an accused to be entirely absent from the proceedings and not participate in his or her trial at all. Since appearing by video is an exception to the requirement that an accused be ‘present in the court’, Parliament obviously intended ‘present’ to mean physically in the courtroom.

[16] Justice Downes went on to consider 715.23(1) as set out above. He said:

Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances

In other words…if another provision in the Code requires that an accused appear in person or prohibits them appearing remotely by video and/or audio, then s. 715.23 must yield to that provision.

[17] In the result, Downes J. found that the statutory requirement of presence in s. 650(1) cannot be waived to allow a self-represented accused to plead guilty by phone.

[18] In coming to that conclusion, Downes J. ruled that s. 650(2)(b) had no application for the purposes of pleading guilty because s. 606(5) allowed exclusively for in-person or video guilty pleas. He found that the explicit incorporation of ss. 650(1.1) and 650(1.2) into s. 606(5) meant that 650(2)(b) was not incorporated. Therefore, on a guilty plea, s. 650(2)(b) was unavailable as an option to permit a plea “on such conditions as the court considers appropriate,” such as by audioconference.

[19] However, the parties submit that this is not the case here. Section 606(5) applies to taking a plea, not trial proceedings. Therefore, the limitation on the use of s. 650(2)(b) found by Downes J. would not apply to trial proceedings where evidence is taken. Section 606 is entitled “Pleas.” Section 606(5) explicitly incorporates ss. 650(1.1) and (1.2), requiring attendance in person or by video. Notably, that section is silent on the operation of s. 650(2).

[20] On the other hand, s. 650 is entitled “Accused to be Present” and 650(1) requires an accused to be present for the whole of his or her trial. Section 650(1) does explicitly incorporate s. 650(2). Section 650(2) provides different ways in which an accused may be absent from his trial. Section 650(2)(b) can be used, in conjunction with s. 715.23, to permit a trial to proceed with video conferencing.

[21] Further, unlike in Candelaria, the accused in this case does have the ability to waive the right to be present at trial. Unlike a self-represented accused, this accused also has the benefit of experienced counsel who can assist him in making a clear and unequivocal waiver.

[22] Support for the parties’ submission is found in R. v. Daley, 2020 ONCJ 201, at para 7. There, Monahan J. distinguished Candelaria by finding that an accused who is represented by counsel can expressly waive his right to be physically present during a guilty plea and sentence.

[23] Moreover, Monahan J. interpreted s. 650 differently than Downes J. Whereas Downes J. found that the explicit inclusion of s. 650(1.1) and (1.2) in s. 606(5) precluded relying on s. 650(2), Monahan J. found the opposite. He wrote (at para. 13):

Subsections 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. However, subsection 650(2)(b) is even broader and permits the court to allow the accused to be completely out of the courtroom with no connection by video or audio even when evidence is being taken from a witness.

[24] Monahan J. noted that the section has been used to permit a defendant to be completely absent for his trial. For example, in R. v. Drabinsky, [2008] O.J. No. 3136, 235 C.C.C. (3d) 350 (Ont. S.C), the Court allowed the accused to be absent for a day of his trial where evidence was taken. Monahan J. reasoned that, by extension and pursuant to s. 650(2), a telephone appearance would also have been permissible. Ultimately, Justice Monahan found that 650(2)(b) confers broad powers to a justice, including the ability to allow a guilty plea by audio.

[25] In this case, the parties urge me to adopt the reasoning of Monahan J. In particular, the Crown asks that I find that s. 650(2)(b) allows a court, with the consent of the accused, to permit the accused to be physically absent from the courtroom. Second, the section does not require Crown consent. It “permits” the accused to be out of court – impliedly requiring the accused to consent. Given that the right to be present at trial is procedural and capable of being waived, the Crown submits that I should accept the waiver of this accused in this case. That waiver is clear, unequivocal, and fully informed.

[26] In short, both counsel say that s. 650(2) allows me to make an order, on consent, that the accused in this case may be absent from this trial, including during the calling of evidence, subject to appropriate terms and conditions.

[27] Counsel point out that ss. 715.22-715.24 set out factors that I may find helpful in determining what terms and conditions can be crafted to permit the accused to be absent from his trial. I should consider whether videoconferencing will;

a) ensure fair and efficient proceedings; b) enhance access to justice in all of the circumstances; c) ensure the accused’s right to a fair and public hearing; d) ensure that the accused will be able to understand the proceedings and that any decisions made during the proceedings will be voluntary.

[28] In this case, says the Crown, the overriding consideration is the global pandemic and that the accused will not be able to have his trial scheduled for an unknown period if this trial does not proceed virtually. So long as the technology to facilitate a trial by videoconference remains operational, this trial should proceed. The accused in this case should be directed to alert the Court immediately if he cannot see the evidence (including if any video feed becomes frozen); if he cannot hear the evidence; or if he wishes to consult privately with his counsel.

[29] The defence argues that a number of factors support the joint request to proceed in this manner. In particular, the accused is anxious to have this matter heard and a delay in this proceeding would likely have a cascading effect on other matters scheduled for trial for him in the fall and winter of 2020. The case is not particularly complex, is likely to have fewer than four witnesses, and counsel are experienced and well-known to one another.

Analysis

[30] I will accept counsel’s submission that the accused is not “present’ for his Zoom trial. Given the realities of technology, it would seem to me that all parties would know who is “present” or not at the trial where they can sign in and be seen by all other parties. I would not refuse to hear a proceeding because the Crown or defence counsel “failed to appear” when a Zoom hearing was underway.

[31] I do not see Candelaria of any significance to my interpretation here. That case dealt with an unrepresented accused who wished to plead guilty by phone. Regardless of Downes J.’s analysis, this is an entirely different situation here. Similarly, in Daley, the issue was with respect to a guilty plea by phone but with counsel. I need not determine who is correct for my purposes.

[32] Edited to its relevant wording, s. 650 allows that an accused shall be present in court during the whole of his or her trial. However, the court may 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.

[33] Where the accused, his experienced counsel and the Crown all agree on the proper conditions of the videoconferencing for the purposes of the particular trial, a judge should be slow to hold up the trial. Here, however, I have an ample record to find that the factors enumerated in ss. 715.22-715.24 allow for such a trial.

[34] The charge is to be tried by judge alone. There are few witnesses, few documents and few issues. All parties are committed to the Zoom process and sufficiently experienced to make it work effectively. Despite the nature of the charge, it appears that the complainant agrees with the process.

[35] In this case, the accused has several outstanding charges that have been severed and scheduled throughout the balance of the year. That scheduling has involved the Crown, the court administration and the defence. Re-scheduling will be onerous to all.

[36] The practice sessions have shown that Zoom will be entirely suitable for a fair and public hearing. From those sessions, I have been able to see and hear the witnesses better than my experience with any recorded police interviews and most CCTV witness presentations. I have no concerns with being able to assess credibility different than any other trial. Protocols are in place to ensure that the community may watch the proceedings.

Result

[37] At the outset of trial, I signed an order such that the accused was permitted to be “out of the court” for the whole of his trial, including the taking of evidence by witnesses, subject to the following conditions:

a. For the entirety of the proceeding, the accused will participate in the trial using video conferencing software. b. The accused will immediately alert the court and/or his counsel if he is unable to see or hear the trial proceedings for any reason, including any technological issues.

“Justice Lemon” Justice G.D. Lemon

Released: June 22, 2020