Ontario Court of Justice

Date: 2021 07 07 Court File No.: Ottawa 19-9633

Between:

HER MAJESTY THE QUEEN RESPONDENT

— AND —

KEVIN BROWN APPLICANT

Before: Justice Norman D. Boxall

Ruling on Motion

Counsel: Mr. Mark Holmes & Ms. Chantal Lefebvre.................... counsel for the Crown Mr. Matthew Wolfson & Mr. David Anber................... for Mr. Brown/Applicant

BOXALL, J.:

Introduction

[1] The Applicant seeks the Court’s permission to allow counsel to conduct the trial without a mask and absent additional evidence and submissions to the contrary that witnesses be ordered to testify without masks.

[2] Mr. Brown is charged with impaired driving as well with driving having a blood alcohol of 80 milligrams or over in 100 milligrams of blood within two hours of driving.

[3] The Crown has elected to proceed summarily.

[4] Mr. Anber is counsel for Mr. Brown.

[5] It is anticipated that the Crown will call three witnesses. They are a civilian who observed a vehicle being driven in a manner that caused concern, the responding, arresting officer and the breath technician.

[6] I am advised by counsel for Mr. Brown that the civilian’s evidence and the breath technician evidence are not contentious.

[7] Thus, the real issue is if Mr. Anber is to be permitted to be unmasked when cross-examining the arresting officer and when making submissions.

[8] The Applicant submits that Mr. Anber’s ability to perform his duties as defence counsel will be reduced if he is masked. The explanation provided for this reduction in abilities is:

• When conducting cross-examination, he relies on non-verbal cues to control witnesses an ability which would be lost if the witness wore a mask or if Mr. Anber was conducting the trial remotely
• His ability to cross-examine is limited, if he is not able to see all of the witnesses’ face and non-verbal cues such as nostril flaring, biting of lips, quivering, smiling etc.
• A mask may muffle his voice requiring him to repeat at times
• Masks cause his glasses to fog up which breaks his concentration and flow of his cross-examination
• A mask and the mask straps cause a distraction
• A mask is some impediment to his breathing which may cause him to pause to catch his breath interrupting the flow of his cross-examination

[9] Mr. Brown wishes an in-person trial.

[10] He is presumed innocent and he has a constitutional right to full answer and defence which includes effective assistance of counsel.

[11] Although this trial is proceeding before myself, it was previously scheduled to commence on March 16, 2021 before Justice Berg. On March 16, Justice Berg required counsel to be masked if the matter was to proceed and it was adjourned to allow counsel to bring a formal motion asking to appear unmasked.

[12] In the intervening period, counsel brought a Motion alleging an 11(b) violation of Mr. Brown’s rights to a trial within a reasonable time.

[13] In denying that Application I held:

The Covid-19 Pandemic is an exceptional circumstance.

Covid delay and Covid related delay is unique in that it results in an exceptional circumstance but a pervasive one that impacts cases across the system. Accordingly, the reasonable steps that can be taken to limit Covid delay must themselves be largely systemic in nature

In order to open the courts and allow for justice to be administered there was extensive planning, preparation and initiatives to allow the courts to open safely.

Furthermore, the closing and reopening the courts was not a one-time event but a continuing process as times and circumstances changed. Knowledge of Covid changed, the risks changed, and circumstances province wide and locally also changed.

Requiring the Crown to establish and judges to adjudicate on the reasonableness of a myriad of institutional policies designed to allow the courts to function gives rise to problems ranging from a lack of data to separation of powers issues (see “Trial delay caused by Discrete Systemwide Events: The Post Jordan Era meets the Age of Covid -19, Palma Paciocco Issue 3 volume 57 Osgoode Hall Law Journal (fall 2020) “)

These health decisions are complex and it is entirely unreasonable to expect the Trial Judges of the Ontario Court of Justice to review these decisions let alone set aside the resources to do so.

The Applicant, accepts the Covid Pandemic is an exceptional circumstance but submits the retrofitting of the courtrooms was sufficient to make them safe and that further steps taken, specifically the requirement of masking of counsel when behind the plexiglass could not be justified.

The Applicant’s position is that the Crown must establish that there was a realistic health risk if counsel was unmasked while seated behind the plexiglass.

In order to exercise his discretion and require counsel to remain masked, in my view, all that is required is the Justice have a reasonable belief at the time he is exercising his discretion that the measures taken were required as part of a much larger and comprehensive approach to battle the Covid emergency both inside and outside the courthouse.

Justice Berg was relying on the comprehensive reports from the Ministry of the Attorney General (“MAG”) and also from direction of the Office of the Chief Justice both of whom had extensive input from public health officials.

The Applicant did not present any evidence on March 16, nor on the hearing before me that masking of counsel was not required or unreasonable and relied on the position that it was a Crown onus to establish that it was required.

In the absence of evidence to the contrary, on a motion brought on the trial date, it is entirely reasonable for the presiding Justice to exercise his discretion to act in accordance with those recommendations of both the Office of the Chief Justice and the Ministry of the Attorney General.

[14] The issue on this Motion is not whether or not masking was required on March 16, 2021, but rather is masking of counsel required on July 7, 2021 when this trial is scheduled to continue.

[15] In determining how to exercise my discretion, I must consider all the current circumstances as well the evidence presented by the Applicant.

The Current Situation Regarding Masking in the Courtroom

[16] To support the recovery of court operations, the Ministry of the Attorney General created a guidebook to:

• Prepare courthouses to resume in-person appearances
• Mitigate the risk of COVID-19 transmission in courthouses
• Ensure access to justice and accessible services

[17] In the current edition which was released on March 4, 2021 the Guidebook recommends that subject to certain exceptions, all members of the public will be required to wear a MAG provided 3-layer source control face covering when attending a MAG facility.

[18] The Guidebook further states that source control face coverings can be temporarily removed when testifying or making submissions in court, if permitted by the Judiciary.

[19] On May 18, 2021 the Ontario Court of Justice, announced its intention to recommence in-person trials on May 25, 2021 which had been suspended in April. In the announcement the Court stated: “It remains of critical importance that all persons attending courthouses vigilantly comply with the public health and safety protections in place at each court facility”. The Court web site lists the above described Guidebook as an Additional resource.

[20] The City of Ottawa has enacted a Temporary Mandatory Mask By-Law which requires every person who enters or remains in an Enclosed Public Space to wear a mask that covers their mouth, nose and chin. The By-Law is currently in effect.

[21] Furthermore, Ontario Regulation 364/20 currently requires in the City of Ottawa, that the person responsible for a business or organization that is open, shall ensure that any person in the indoor area wears a mask or face covering that covers their mouth nose and chin.

[22] There are exceptions to the mask requirement in both the By-Law and the Ontario Regulation, but none are applicable in this case.

[23] There are complicated issues of statutory interpretation, jurisdiction, separation of powers and judicial independence in determining if either the By-Law or the Ontario Regulation apply to Courthouses and more importantly courtrooms. For the purposes of this Application, I do not propose to decide if they apply to courtrooms. I accept that I have a discretion to allow persons to be unmasked in the courtroom. However, the rationale for this By-Law and the Ontario Regulation in making for a safe workspace and safe community are clearly applicable and can be considered.

[24] In determining how to exercise my discretion, I must consider all of the information, evidence and circumstances before me at this time.

[25] Of critical importance is Mr. Brown’s right to a fair trial and to make full answer and defence, including having an effective counsel.

Mr. Anber’s Evidence

[26] Mr. Anber has filed an affidavit and been cross-examined on it.

[27] Mr. Anber is a very experienced Defence counsel.

[28] I will consider each of his concerns and how they impact his ability to conduct a vigorous and effective representation of his client in this trial.

• When conducting cross-examination, he relies on non-verbal cues to control witnesses, an ability which would be lost if the witness wore a mask or if Mr. Anber was conducting the trial remotely.

[29] In this case, we are essentially dealing with one police witness. The use of non-verbal cues by Defence counsel can theoretically be of assistance in controlling a witness. However, in this case given Mr. Anber would on his suggestion be seated, the witness is a police officer who has previously likely completed notes and an investigative action, I find this to be a theoretical concern and not applicable.

[30] Furthermore, as an experienced counsel, Mr Anber will have available all his forensic skills including the ability to use leading questions, control his tone and pace of questioning and the use of prior notes or investigative action to control the witness.

• His ability to cross-examine is limited if he is not able to see all of the witnesses’ face.

[31] It is true Mr. Anber will not be able to see all of the witness’ face. He will still be able to observe other non-verbal cues from the witness including but not limited to the witness’ eyes, the witness’ body posture, the tone and pace of the witness’ replies. In addition, he has his forensic skills I described above. I find that in this case, the inability to see all of the officer’s face will not diminish Mr. Anber’s ability to cross-examine in any meaningful way.

• A mask may muffle his voice requiring him to repeat at times.

[32] This is a hypothetical concern. The requirement to repeat at times is common and does not meaningfully reduce the effectiveness of cross-examination. If the mask impedes the witness’ ability to hear and repetition interferes with the fairness of the trial, I can address this at that time.

• A mask and the mask straps cause a distraction.

[33] Almost everyone who wears a mask would prefer not to. Mr. Anber, as an experienced counsel conducting a cross-examination will be concentrating and not distracted to the extent that it would affect his effectiveness.

• A mask is some impediment to his breathing, which may cause him to pause to catch his breath interrupting the flow of his cross-examination.

[34] Mr. Anber testified that there was no medical reason nor any medical evidence to present why a mask would cause him breathing problems. If there was a medical reason, Mr. Anber might well qualify for an exception to the requirement to wear a mask. It is possible it may be necessary for him to catch his breath. However, this is completely hypothetical that it will interrupt his flow of cross-examination. A break in cross-examination can be effective. Counsel frequently pause to re-collect thoughts, check their notes, provide emphasis to the last answer, locate prior statements, examine exhibits, consult their client to list but a few reasons to break. Furthermore, the fact that we are dealing with a single police witness and the nature of the anticipated issues involving this witness are such that the occasional catching of breath by counsel will not reduce his effectiveness.

[35] The Applicant also filed an affidavit of Mr. Hale, an experienced counsel. Although Mr. Hale’s affidavit set out some preferences he has for in-person trials, it is noteworthy that Mr. Hale has no significant concerns about effectively conducting trials remotely and has done and continues to do so.

[36] I am not aware of any other counsel in Ottawa, who on a summary conviction trial where the only contentious witness is a police officer, has taken the position that he or she cannot be effective if required to wear a mask or alternatively do the trial remotely.

[37] Mr. Anber would prefer to be unmasked. We all would. However, the material before me does not show that in this case his effectiveness would be reduced in any meaningful way. Mr. Brown will get a fair trial and his counsel will be effective and able to make full answer and defence masked or by appearing remotely if he prefers.

Public Health Concerns

[38] I believe I can rely on the following to support the fact that masking is, even if not required by law, remains important at this time for public health considerations and the safe operation of the courthouse:

• The City of Ottawa By-Law
• Ontario Regulation 364/20
• Ministry of Attorney General Guidebook
• Recommendations from the Chief Justice of the Ontario Court of Justice

[39] The Applicant relies on the decision in R. v. Shenker, [2021] Q.J. No. 3234 which dealt with similar concerns. In that case the Court held that each witness would remove their mask during testimony, and authorized counsel to remove their mask when asking questions.

[40] However, I note that there were significant factual differences in that case in that:

• The trial was proceeding on Indictment
• The allegation was of criminal harassment over a 9-month period and the key witness was the civilian complainant
• Court appointed s. 486.3 counsel was requesting the witness testify unmasked and the presiding Justice believed the accused who had already been denied the right to cross examine personally should not have further obstacles to fulsome cross-examination
• The Crown agreed that having the witnesses testify was far better in allowing the Court to properly assess the probative value of their accounts
• The Crown was willing to proceed without wearing a mask
• The French English interpreter requested that he be exempt from wearing a mask and that the witnesses not be masked to allow him to do his work effectively and efficiently
• All of the prospective witnesses were canvassed, and none expressed any concern if they were to testify unmasked or if counsel were unmasked. In fact, the witnesses expressed a preference to be unmasked.
• In particular the Court said this about the complainant: “ Testifying in any legal proceeding is always a stressful daunting exercise. Testifying as alleged victim in a criminal harassment matter is particularly trying. Here it is alleged that Miss G. was harassed over a nine-month period. In the circumstances the justice system should strive to make her testimony as comfortable as possible. This is so not only out of respect for the witness but also to create conditions that are most conducive to obtaining painting a full and frank account of the events. To impose upon a complainant the obligation to testify regarding potentially traumatic events through a mask that is pressed upon her face limiting or air intake and muffling her words would not be in the interest of justice”

[41] Furthermore, in making the Order with respect to the witnesses and authorizing counsel and the interpreter, to proceed without masks the Court expressly reserved the right of any individual-parties, witnesses, attorneys, staff to raise health concerns at any point during the trial and have the issue re-litigated.

[42] The Court also recommended that the Crown provide a copy of his reasons to each prospective witness in order for them, if they chose to retain independent counsel in the event they wish to contest the order by seeking a writ of certiorari in the Superior Court.

[43] The issue of masking or unmasking was not contested in Shenker. In fact, the issue was raised by the court itself. The court indicated that if the witnesses expressed concern it would give the court great pause. Furthermore, the court gave no indication how it would rule if there was an objection by a party, witness, attorney or staff.

[44] Given the factual differences in the circumstances before me and also the fact the issue was not contested in Shenker, I find the result in that case of no assistance. I can, however, consider the general principles expressed, but I find them of very little assistance in determining the issue before me.

[45] There are numerous cases authorizing witnesses to testify remotely principally because of Covid 19 concerns. There are also cases recognizing the importance and or necessity of masking. (See R. v. Jeffries [2021] OJ No 807 at par. 30., R. v. MacKinnon [2021] OJ No. 2013.)

[46] Locally in R. v. Bdeir 2021 ONCJ 54, [2021] O.J. No. 466, Justice Bourgeois required everyone in the courtroom including counsel, witnesses, staff and the court itself to remain masked at all times.

[47] Although neither are binding on me, I find the reasoning in R. v. MacKinnon, supra and R. v. Bdeir, supra highly persuasive.

[48] Of course, times and circumstances can change, and I must determine this motion as of July 7, 2021.

[49] The Defence, presented a copy of the most recent statistics from Ottawa Public Health and invites me to find that the current state of Covid-19 is such that masking is not required. It is true that cases, hospitalizations and deaths are markedly down in Ottawa at the current time. I, like many citizens, have followed the information on Covid-19 and am certainly familiar with cases, hospitalizations, deaths, rates of transmission, variants, variants of concern, vaccines and vaccine efficacy. I am also familiar with various viewpoints on the efficacy of various public health measures such as masking, social distancing and lockdowns.

[50] However, I am a Justice of the Ontario Court of Justice not a public health expert. I believe it would be inappropriate of me to take the statistics issued by Ottawa Public Health and come to my own conclusion contrary to the opinion of the Ottawa Public Health, that masking is currently required in indoor spaces in Ottawa.

[51] I accept that I have a discretion to allow counsel to be unmasked. I accept that each individual Justice is independent in their own courtroom and that in exercising their discretion the decision must consider the individual circumstances in each case.

[52] Nevertheless, in addition to the importance of consistency to public health of consistency in requiring masking there are important considerations to the proper and efficient administration of justice for there to be consistency. The parties, counsel, witnesses, court staff and all of the other staff that work or are required to attend in the courthouse are entitled to know in advance of the public health measures in effect.

[53] I find that in this case, requiring counsel for the Applicant to remain masked at all times or alternatively to appear remotely, has minimal impact on the Accused’s fair trial rights including the right to have effective representation by counsel. Furthermore, the information and evidence before me supports the requirement of masking on public health concerns.

[54] In the result, I exercise my discretion to require everyone in the courtroom to be masked at all times.

Released: July 7, 2021 Signed: Justice Norman D. Boxall