COURT FILE NO.: CR-23-0055-00 DATE: 2023-07-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING A.Hardiejowski, for the Crown

- and -

MARK-JEFFREY BUCKLEY M.Sali, for the Accused Accused

HEARD: June 28, 2023, via ZOOM at Thunder Bay, Ontario

Mr. Justice W. D. Newton

Decision on 715.23 Application

Overview

[1] The Defendants bring this motion for an order transferring this proceeding from Sudbury (Northeast Region) to the Toronto Region.

[2] Mark-Jeffrey Raymond Buckley is charged with, on October 4, 2021, in the City of Thunder Bay:

a. possession of diazepam for the purpose of trafficking; b. possession of cocaine for the purpose of trafficking; c. possession of fentanyl for the purpose of trafficking; d. possession of methylphenidate for the purpose of trafficking; e. being in a dwelling house without lawful excuse with intent to commit an indictable offence; f. possession of money knowing that the money was obtained by the commission of a crime; and g. trafficking in cocaine.

[3] Mr. Buckley has elected trial by judge and jury.

[4] At the pretrial, the possibility of a re-election to judge alone was raised but was dependent upon the mode of trial. The accused wished to attend remotely as he resides in North York. His counsel has offices in Toronto.

[5] Mr. Buckley has announced his intention to bring applications to exclude evidence on the basis of alleged violations of his rights under ss. 7, 8, 9, and 10(a) and 10(b) of the Charter. Four police witnesses will testify and it is estimated that four days are required for the applications.

[6] A jury trial would require at least seven days and jury selection would include a challenge for cause.

[7] The Jordan date is recorded on the indictment as April 4, 2024.

[8] Mr. Buckley has not delivered a notice to re-elect to trial by judge alone.

[9] Mr. Buckley has brought this application under s. 714.233 of the Criminal Code to allow him to appear at trial by videoconference and has stated that he will re-elect to be tried by judge alone if an order is granted allowing him to appear at trial by videoconference. The Crown’s position on a re-election is not known.

[10] The Crown does not consent to allow Mr. Buckley to appear by videoconference for the Charter applications to exclude evidence.

The Facts Supporting Mr. Buckley’s Request

[11] In his affidavit, Mr. Buckley deposes that he lives in North York and is employed as a window cleaner earning approximately $36,000 annually. His rent is $1200 per month. He has no savings. He says he supports three daughters. From his research, he estimates the travel and accommodation costs associated with attending his trial in person in Thunder Bay at a minimum of $1775. I take judicial notice of the fact that North York is approximately 1400 km by road from Thunder Bay.

[12] He also deposed that, because of a car accident in June 2022 which caused injuries to his back and wrist, he attends physiotherapy one to two times per week. He states that travelling to Thunder Bay would interrupt his physiotherapy.

[13] His affidavit also sets out how he would be present at his trial should he be permitted to attend by videoconference. He deposed that he participated by videoconference in a three day discovery in the Ontario Court of Justice in June 2023.

The Legislation

[14] The Criminal Code was amended in 2022 [1] by Bill S-4. The relevant sections are set out below:

Remote Attendance by Certain Persons

Principles

Attendance

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

Provisions providing for audioconference or videoconference

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.

General

Reasons

715.221 If the court denies a request respecting a person’s appearance or participation by audioconference or videoconference under this Part, it shall include in the record a statement of the reasons for the denial.

Cessation

715.222 If the court allows or requires a person’s appearance or participation by audioconference or videoconference under this Part, it may, at any time, cease the use of those technological means and take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceedings.

Accused and Offenders

Considerations — appearance by audioconference or videoconference

715.23 Before making a determination to allow or require an accused or offender to appear by audioconference or videoconference under any of sections 715.231 to 715.241, the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances, including;

(a) the location and personal circumstances of the accused or offender; (b) the costs that would be incurred if the accused or offender were to appear in person; (c) the suitability of the location from where the accused or offender will appear; (d) the accused’s or offender’s right to a fair and public hearing; and (e) the nature and seriousness of the offence.

Preliminary inquiry

715.231 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at the preliminary inquiry.

Trial — summary conviction offence

715.232 The court may allow an accused to appear by videoconference at a trial for a summary conviction offence

(a) if the accused is not in custody, with the consent of the accused and the prosecutor; and (b) if the accused is in custody, with the consent of the accused.

Trial — indictable offence

715.233 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at a trial for an indictable offence. However, an accused must not appear by videoconference during a jury trial when evidence is being presented to the jury.

Plea

715.234 (1) The court may, with the consent of the prosecutor and the accused, allow an accused to appear by audioconference or videoconference for the purpose of making a plea.

Limitation

(2) The court may allow the accused to appear by audioconference only if it is satisfied that

(a) videoconferencing is not readily available; and (b) the appearance by audioconference would permit the court to inquire into the conditions for accepting a plea of guilty under subsection 606(1.1) despite the fact that the court would not be able to see the accused.

Sentencing

715.235 (1) The court may, with the consent of the prosecutor and the offender, allow an offender to appear by audioconference or videoconference for sentencing purposes.

Limitation

(2) The court may allow the offender to appear by audioconference only if videoconferencing is not readily available.

Proceedings not expressly provided for

715.24 In any proceedings in respect of which this Act does not expressly authorize the court to allow an accused or offender to appear by audioconference or videoconference or limit or prohibit their appearance by those means, the court may allow the accused or offender to appear by either of those means.

Positions of the Parties

Mr. Buckley

[15] The grounds cited by Mr. Buckley’s counsel in this application include:

In a press release accompanying the introduction of the new legislation, the Department of Justice stated that the purpose of the new provisions was to "mak[e] the criminal justice system more accessible, efficient, and effective" including by "supporting the increased use of technology in courts across Canada." The changes were intended to "give courts an increased flexibility in how they hold criminal proceedings and issue orders ... [and to] support greater access to justice moving forward ... " The press release also highlights the comments of the Minister of Justice and Attorney General, David Lametti, that "The legislation ... will support greater access to justice for all Canadians by facilitating an increased use of technology in the criminal justice system. These proposed changes will bring positive change to our system, now and in the future."

[16] Counsel for Mr. Buckley also relied upon the following passage regarding statutory interpretation quoted with approval in R. v. Dunstan, 2017 ONCA 432 [2]:

The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context.… The court’s interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature’s intent, and produce a reasonable and just meaning [3].

[17] Counsel for Mr. Buckley submits, therefore that, in interpreting these sections of the Code, the interpretation should comply with the legislative text and promote and reflect the legislature intent which includes making the criminal justice system more accessible and efficient, supporting the increased use of technology, and giving the courts increased flexibility in how criminal proceedings are held.

[18] While noting that the consent of both the prosecutor and the accused is required to allow an accused to appear by videoconference for a preliminary inquiry [4], summary conviction trial [5], indictable offence trial [6], plea [7], and sentencing [8], counsel for Mr. Buckley argues that s. 715.24 applies because pre-trial applications are not expressly provided for and, therefore, the court may allow an accused to appear by audioconference or videoconference without the consent of the Crown. Counsel for Mr. Buckley argues that pre-trial applications are not part of the trial, and therefore the consent of the prosecutor is not required.

[19] Counsel for Mr. Buckley also relies upon R. v. Jackson, 2016 ONSC 5748 [9] for the proposition that applications are not part of the trial.

[20] During submissions I raised the following passage from Ontario Courtroom Procedure [10] with counsel:

Therefore, “the trial” includes any part of the proceedings that advances in any way the procedural or substantive aspects of the trial. Without being exhaustive, the above would include:

• all evidence, submissions and decisions on pre-trial motions;
• all voir dires;
• all submissions in the absence of the jury;
• any determination of objections or admissibility rulings in the trial proper;
• in jury trials, the selection of all jurors, and any enquiries into bias, inability to continue or misconduct, no matter when the issue arises;
• closing submissions.

[21] I also referenced R. v. Barrow [11] and gave counsel an opportunity to review that decision and make submissions.

[22] Counsel for Mr. Buckley correctly notes that both the passage quoted above, and Barrow address the presence of the accused and not how the accused will be present.

The Crown

[23] The Crown argues that, absent the consent of the prosecutor, the court has no jurisdiction to allow an accused to appear by videoconference at a trial for an indicatable offence.

[24] The Crown argues that S. 715.24 (Proceedings not expressly provided for) does not apply as pretrial applications concerning the admissibility of evidence are part of the trial. The Crown relies on the following passages from Barrow:

Martin J.A. continued, at p. 527:

Generally speaking, the trial of an accused does not commence until after plea: see Giroux v. The King (1917) 29 C.C.C. 258 at p. 268. However, "trial" for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge's charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty. [12] [Underline added.]

…Adopting the reasoning of Martin J.A. in Hertrich, Lamer J. held that the test of what should be included in "trial" was not limited to the presentation of the case against the accused and to matters that directly affected the decision as to guilt or innocence, such as rulings on the admissibility of evidence. For Lamer J., s. 577(1) is triggered whenever the "vital interests" of the accused are at stake, or as Martin J.A. put it in Hertrich, when a decision bears on the "substantive conduct of the trial."… [13] [Underline added.]

Analysis

[25] I agree with counsel for Mr. Buckley that in interpreting these sections of the Code the interpretation should comply with the legislative text and promote and reflect the legislature intent which includes making the criminal justice system more accessible and efficient, supporting the increased use of technology, and giving the courts increased flexibility in how criminal proceedings are held.

[26] Hansard may also be an aid in interpreting legislation but should be read with caution. Mr. Gary Anandasangaree (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada) made the following statements during Second Reading of the Bill:

The new measures addressing remote appearances include a consent requirement, so an accused person or offender and the Crown prosecutor would need to give their consent to appear in this way. In addition, all decisions to proceed virtually would be at the discretion of the court based on a number of factors the court would be required to consider. For example, courts would need to consider the right of accused persons or offenders to a fair and public hearing and the suitability of the location from which they would be appearing before allowing it.

I would also emphasize that the bill does not make virtual court hearings mandatory or change the general principle that all those who participate in criminal proceedings must physically be present in court unless otherwise authorized. Bill S-4 does not seek to replace in-person proceedings, which remain important, but instead offers alternative ways of proceeding where the technological means exist and when considered appropriate.

Bill S-4 would also enact clear safeguards to virtual appearances, some of which I have mentioned, such as ensuring judicial approval and consent of all the parties [14].

[27] Section 715.21 states that, presumptively, a person who participates in a proceeding shall do so in person, except as otherwise provided.

[28] The Legislature has expressly provided that the court may allow the accused to appear by audioconference or videoconference for plea [15] and sentencing [16] with the consent of the prosecutor and the accused.

[29] The Legislature has expressly provided that the court may allow the accused to appear by videoconference at the preliminary inquiry [17] with the consent of the prosecutor and the accused.

[30] The Legislature has expressly provided that the court may allow the accused to appear by videoconference at a trial for a summary conviction offence if the accused is not in custody with the consent of the accused and the prosecutor [18], and, if the accused is in custody, with the consent of the accused only [19].

[31] The Legislature has also expressly provided that the court may allow the accused to appear by videoconference at a trial for an indictable offence except during a jury trial when evidence is being presented to the jury [20]. Although not specifically conceded by the Crown, I accept, as argued by counsel for Mr. Buckley, that the Charter applications to be brought in this case do not involve evidence being presented to the jury.

[32] I accept, as argued by the Crown, that pretrial applications to exclude evidence are part of the trial. Although Barrow addressed the right of the accused to be present, and not how the accused may be present, applications to exclude evidence are part of the normal trial process, bearing on the substantive conduct of the trial, and thus the consent of the prosecutor is a necessary precondition before a court may make a determination to allow an accused to appear by videoconference at a trial for an indictable offence. As the excerpts from Hansard note, the consent of the accused and the prosecutor and judicial approval is required.

[33] I disagree with the submission of Counsel for Mr. Buckley that a Charter application to exclude evidence is not expressly provided for and therefore addressed by s. 715.24. That section was enacted to deal with motions such as this and the many other procedural motions that may arise in a criminal proceeding. The Legislature has specifically identified what stages may be considered for an appearance by videoconference and specified that the consent of the accused and the prosecutor is required before the court may make a determination to allow the appearance by videoconference. Those stages, plea, preliminary hearing, trial and sentence, all bear on the substantive conduct of the trial as does a Charter application to exclude evidence.

[34] Jackson addressed how bail could be revoked under s. 532(2)(a) of the Criminal Code. It does not assist in my analysis of whether I may allow the accused the accused to appear by videoconference at trial without the consent of the prosecutor.

Disposition

[35] While the evidence and arguments adduced by Mr. Buckley may satisfy the s. 715.23 considerations to allow Mr. Buckley to appear for his Charter application by videoconference, I conclude that, absent the consent of the prosecutor, I may not make such a determination.

[36] The application for Mr. Buckley to appear by videoconference for the Charter applications is dismissed.

[37] As previously endorsed, this matter is to go to assignment court on July 31, 2023, to set dates for the applications and jury trial. During the argument I mistakenly assumed that I was assigned as trial judge. I was the pretrial judge and the matter should be placed before another judge for hearing.

“originally signed by”

The Hon. Mr. Justice W. D. Newton

Released: July 4, 2023

COURT FILE NO.: CR-23-0055-00 DATE: 2023-07-04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Crown - and – MARK-JEFFREY BUCKLEY Accused DECISION ON 715.23 APPLICATION Newton J. Released: July 4, 2023

[1] December 15, 2022. [2] 2017 ONCA 432. [3] 2017 ONCA 432 at para. 52. [4] S. 717.231. [5] S. 715.232. Note the consent of the prosecutor is not required in the accused is in custody. [6] S. 715.233, “except during a jury trial when evidence is being presented to the jury”. [7] S. 715.234. [8] S. 715.235. [9] 2016 ONSC 5748 (Jackson). [10] Ontario Courtroom Procedure, 5th Ed. (Fuerst, Sanderson, Firestone) at p. 261. [11] , [1987] S.C.J. No. 84 (Barrow). [12] Barrow at para. 16. [13] Barrow at para 21. [14] Debates (Hansard) No. 133 - November 23, 2022 (44-1) - House of Commons of Canada (ourcommons.ca). [15] S. 715.234. [16] S. 715.235. [17] S. 715.231. [18] S. 715.232(a). [19] S. 715.232(b). But see R.v. Haaima, 2023 ONCJ 180 in which Richardson J. held that s. 715.232 must be read to give the court residual discretion where the Crown and accused do not agree. This was based on s. 800 which allows an accused in a summary conviction court to appear personally or by agent. This case was not addressed by counsel and, in any event, s. 800 does not apply to indictable offences. [20] S. 715.233.