Court Information

Ontario Court of Justice

Date: April 28, 2020

Court File No.: Simcoe 20-312

Parties

Between:

Her Majesty the Queen

— AND —

Kenneth Kerr

Judicial Officer and Counsel

Before: Justice A.D. Hilliard

Heard on: April 23, 2020

Reasons for Judgment released on: April 28, 2020

Counsel:

• Pereira, J. — counsel for the PPSC
• Kenneth Kerr — appearing by teleconference without counsel

Judgment

Hilliard J.:

Overview

[1] Kenneth Kerr stands charged with possession for the purpose of trafficking fentanyl, possession for the purpose of trafficking cocaine, and possession of the proceeds of crime.

[2] Mr. Kerr appeared by way of teleconference from the Hamilton Wentworth Detention Centre (HWDC) where he is being held in pre-trial custody. Mr. Kerr is unable to attend court in person due to the current COVID-19 pandemic and the resultant protocols that are in place regarding physical distancing.

[3] Mr. Kerr does not have a lawyer and he advised that he does not intend to retain one. Mr. Kerr advised me that he does not wish to use the services of duty counsel for the purposes of entering his guilty plea. He asserted that it is his right to enter a guilty plea at the earliest possible opportunity and wished to do so when his matter was first before me on April 23, 2020.

[4] Given the seemingly conflicting decisions of my colleagues Justices Downes and Monahan released just prior to Mr. Kerr's appearance, I was not prepared to proceed with Mr. Kerr's matter on April 23, 2020 by way of audio conference prior to satisfying myself of my jurisdiction to do so.

[5] A further issue was raised by the federal prosecutor that only urgent matters should be dealt with by the courts during the current pandemic protocols that are in place and given that Mr. Kerr is facing a penitentiary sentence, his matter does not qualify as urgent as he is not in a time served situation.

[6] I adjourned the matter to April 28, 2020 to make a determination as to the issue of my jurisdiction to take Mr. Kerr's guilty plea by teleconference and to consider the federal prosecutor's argument on the issue of urgency.

[7] On April 28, 2020, I advised Mr. Kerr orally of my decision that his matter was urgent and would therefore proceed, but that I am not satisfied that I can hear his guilty plea by way of teleconference. I indicated that I would release full written reasons for my decision in this regard and these are my reasons, a copy of which will be sent to Mr. Kerr forthwith at HWDC.

Urgency

[8] Under the current COVID-19 protocols, only urgent matters are being dealt with by the courts. Some matters are presumptively urgent – matters where an accused is in a time served situation or bail hearings – some matters may be assessed as urgent by the presiding judicial officer. The assessment of urgency is in some cases more readily apparent then in others, for example a Stream A plea to a charge of Impaired Driving. In Mr. Kerr's case, assessing the issue of urgency requires a more in-depth consideration.

[9] Mr. Kerr is in custody at HWDC. I accept as accurate Mr. Kerr's description of the conditions at that detention facility as deplorable. He is locked in his cell on a continuous basis except for one hour in every 48 hour period.

[10] Mr. Kerr is not in a time served situation. The urgency for Mr. Kerr is to have his sentence imposed, which will be at least two years in length, in order to allow him to be transferred as soon as possible from HWDC to a federal corrections facility. I infer from statements made by Mr. Kerr that he believes that the conditions of his detention will improve significantly once he is transferred to a federal institution.

[11] The overcrowding in provincial detention facilities is an ongoing issue that pre-dates the current public health crisis. That issue is exacerbated by the fact that physical distancing is nearly impossible in detention centres where detainees are housed 2 or 3 to a cell. Maintaining 2 metres distance from other individuals in a locked cell is impossible.

[12] The psychological impact of prolonged detention in HWDC is also a consideration. Mr. Kerr indicates that he recognizes now that he suffers from substance misuse disorder and needs treatment. Mr. Kerr will not get counselling and treatment for his substance misuse in a provincial detention facility. I accept that prolonging the period of time Mr. Kerr spends in a detention centre without access to any medical or mental health resources may result in mental anguish and suffering.

[13] I have also considered Mr. Kerr's Charter rights, specifically his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time and under s. 7 of the Charter to life, liberty, and security of the person. Mr. Kerr has expressed his wish to plea guilty and take responsibility for his actions. Although the right to be tried within a reasonable time does not provide for a right to enter a guilty plea on the first court date, courts should attempt to accommodate an accused wishing to plead guilty at the earliest possible opportunity as there are significant liberty interests at stake.

[14] Given the foregoing, I have concluded that Mr. Kerr's matter does qualify as urgent under the current COVID-19 protocols and should proceed as soon as possible.

Remote Proceedings

Jurisdiction

[15] Given the current pandemic and the COVID-19 protocols requiring physical distancing, it is not possible at present for individuals to be physically before the Court for the purpose of a guilty plea as they once were. This new reality has resulted in concerns being raised about the jurisdiction of the court to preside over a matter where the accused is not physically present.

[16] In the decision of Candelaria[1], Justice Downes concluded that the provisions of the Criminal Code do not provide the jurisdiction for trial judges to hear guilty pleas by way of teleconference. A very thorough and comprehensive review of the Criminal Code provisions regarding an absent accused is undertaken in that judgment.

[17] In the subsequent decision of Daley[2], Justice Monahan determined that guilty pleas where the accused and counsel participate by teleconference is not prohibited by the Criminal Code and allowed the plea to proceed. Referencing the same provisions of the Criminal Code as were canvassed in Candelaria, Justice Monahan concludes that there is statutory authority for the taking of guilty pleas by teleconference.

[18] The issue of whether a judge in the Ontario Court of Justice (OCJ) can accept a guilty plea by way of teleconference is not academic. The OCJ is a statutory court and unlike judges in the Superior Court of Justice (SCJ), we have no inherent jurisdiction to craft equitable remedies. As justices of the Ontario Court, we must always ensure that we are acting within the confines of statutory authority conferred upon us by legislation such as the Criminal Code.

[19] The reasoning of both of my colleagues is thoughtful and persuasive. Having regard to the principles of stare decisis and judicial comity, I am mindful that I should not depart from the conclusions of my colleagues without justification. However, I am of the view that Daley and Candelaria are not inherently contradictory.

[20] Mr. Daley, appearing before Justice Monahan, had the benefit of being represented by senior defence counsel. The matter had been pre-tried by Justice Monahan on a number of occasions. Both Crown counsel, defence counsel, and Mr. Daley were in agreement that the matter should proceed expeditiously and by way of teleconference. Mr. Daley provided a clear and informed waiver of his right to be physically present for the proceedings.

[21] Mr. Candelaria, in contrast, was before Justice Downes without a lawyer to advocate on his behalf. Justice Downes, therefore, had to grapple with balancing and protecting the rights of Mr. Candelaria without the assistance of counsel.

[22] Although Justice Monahan pointed out in Daley that there is no specific prohibition in the Criminal Code against proceeding by way of teleconference, it is clear that the provisions that allow for teleconference or video conference proceedings are subject to the discretion of the presiding judge. Justice Downes in clearly articulated reasons, set out why he was of the view that it was not appropriate for Mr. Candelaria's plea to proceed by teleconference, which it is his discretion to do.

[23] I agree with Justice Monahan that there is no specific provision in the Criminal Code prohibiting guilty pleas proceeding by way of teleconference and that in these unprecedented times, there will be occasions when that is an appropriate technological forum to allow matters to proceed before the Court. However, I also agree with Justice Downes, that there will be occasions when the use of teleconference is not appropriate and video conferencing is necessary. In my view, the use of video conference technology is preferable and may sometimes be required when an individual before the court is without legal representation.

[24] The decision as to what medium is to be employed to proceed with a remote guilty plea ultimately rests with the judge hearing the matter.

Audio vs Video

[25] In deciding as to whether to allow a proceeding to be conducted by either audio or video conference, all of the rights of an accused person must be considered, with the primary focus on how best to provide the accused person with a full and fair hearing. The purpose of having an accused present in court is to ensure that the opportunity for meaningful participation is provided and the ability to assert his or her rights when appropriate to do so. However, in the short term, having Mr. Kerr be physically present before the court, as is his right, for the purpose of entering his guilty plea and being sentenced, is not possible.

[26] The rights of an accused person are never absolute and always subject to reasonable limitation prescribed by law and tempered by the reality of limited judicial resources. The COVID-19 pandemic has created an unprecedented and unique set of circumstances and challenges that were not previously contemplated.

[27] Mr. Kerr's desire to enter his guilty plea and be sentenced at the earliest possible date should be accommodated, in my view, subject to the considerations set out above regarding limited judicial resources and the public health directives. In considering whether Mr. Kerr's matter should proceed by video or audio conference, it is relevant to take into account the availability of video conference technology in the short term. If the availability of that technology was months or weeks away, that would, in my view, militate against requiring the proceedings to be conducted by video conference.

[28] However, Mr. Kerr's right to an expeditious hearing, must ultimately be weighed against his right to a full and fair hearing, given the significant liberty interests at stake. Mr. Kerr has been in custody now for less than a month. Although I accept that the current situation at HWDC is more oppressive than usual, Mr. Kerr's belief that his situation will improve up being transferred to a federal corrections institution may not be well founded. There is no evidentiary basis upon which I can conclude that the conditions of Mr. Kerr's detention will significantly improve upon him being transferred to a federal facility. Given that reality, ensuring that Mr. Kerr's hearing is completed in a manner that provides the best opportunity for me to make a fair and just determination on sentence must be given significant weight over expediting this matter.

[29] Unlike judges at the courts of appeal, trial judges do not have the benefit of collaborating with colleagues on our decisions. Although sometimes we are able to reserve our decisions and seek advice and feedback, the reality is that in the busy plea courts of the OCJ multiple decisions are made by individual judges sitting alone each and every day. We are all keenly aware that every decision that we make, even a decision to adjourn a matter to another date, has an impact on the lives and liberty of the individuals that come before us.

[30] Trial judges have an obligation to ensure that the rights of each accused person are protected, particularly those who are self-represented. Judges must be able to explain and justify each and every decision that we make. Transparency in the justice system is the foundation of public confidence in the administration of justice.

[31] Prior to accepting a guilty plea from an accused person, the trial judge must be satisfied that the plea is being entered voluntarily and that the accused understands his or her rights and the consequences of entering a guilty plea. Part of determining whether a full and fair hearing can be held by either audio or video conference, a trial judge must be satisfied that he or she can make a proper assessment of the voluntariness of the guilty plea and the understanding of the individual wishing to enter that plea of their rights and the nature and consequences of their plea.

[32] For many judges, myself included, seeing the individual before the court is an essential component of the determination of voluntariness and understanding. Assessing body language and making eye contact can be of great assistance in deciding whether or not to accept a guilty plea, as well as weighing and making determinations about sentencing submissions. This concern is particularly heightened when the individual before the court is not represented by a lawyer and the presiding judge is solely responsible for ensuring the voluntariness of a guilty plea. Taking away the visual component of a guilty plea and sentencing hearing removes one of the tools relied upon by many judges in making a decision as to the voluntariness of any particular plea.

[33] Removing the visual component of the plea and sentencing process may also be detrimental for the accused. There is a possibility that the gravity of the situation the accused is facing will not be fully appreciated when there are just disembodied voices being heard over a telephone line. The visual impact of the ceremony and formality of a courtroom and a robed judge can be an important reminder to an accused person of the importance of the decisions the accused is being asked to make regarding the exercise of their rights.

[34] The comfort level of the judge in conducting proceedings by either audio or video conference must still be tempered by the availability of the technology preferred by each individual judge. I have made inquiries as to the earliest available date for Mr. Kerr to appear before me by video. With the assistance of my trial coordinator, a date of April 30, 2020 has been secured for Mr. Kerr to appear by video for the purpose of entering his guilty plea. This date will result in a further adjournment of only two (2) days from his appearance before me by audio for the determination of how his matter can proceed. In my view, this is not an unreasonable delay given the issues already canvassed.

Conclusion

[35] For these reasons, I am of the view that Mr. Kerr's best opportunity for a full and fair hearing is for his matter to proceed by way of video conference and therefore it will so proceed before me on April 30, 2020 at 10:00 a.m.

Released: April 28, 2020

Signed: Justice A.D. Hilliard

Footnotes

[1] R. v. Candelaria, 2020 ONCJ 194.

[2] R. v. Daley, Monahan J. (OCJ), Brampton 19-4249, released April 22, 2020.