ONTARIO COURT OF JUSTICE

CITATION: R. v. Watson, 2021 ONCJ 613

DATE: November 16, 2021

Information Number: 20-282

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Scott Watson

Before Justice of the Peace D.W. Dudar

Heard on November 16, 2021

Ruling: November 16, 2021

Julian Whitten..................................................................................... counsel for the Crown

Geoff Read............................................................. counsel for the accused Scott Watson

Ruling

Dudar J.P.:

[1] This is a joint motion (Crown and defence) for an order to conduct the trial scheduled for November 18, 19, 25 and 26, 2021.

[2] The primary foundation for the motion is that the accused does not have video access for the Court proceedings. There are other grounds asserted, but these hinge largely on access by video. The other consideration advanced by Crown is efficiency of the trial proceeding.

[3] There are a number of considerations in respect of this motion, largely not addressed by the motion. The first is that I am advised and have reason to believe that at least the Crown would be aware that the Hamilton Provincial Offences Court has not satisfied the conditions for in-person trials, and as such, in-person trials are not currently being scheduled.

[4] The cases cited by the Crown in its joint motion materials all pre-date the pandemic era. There are few precedents upon which the Court can rely in considering the motion before the Court. However, the Court is aware of the decision of Paciocco, J.A. in Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244, that provides some assistance in analyzing and weighing requests for hearings to occur in-person. His Honour weighed whether:

• the matter could adequately be addressed remotely,

• either party was prejudiced by the matter proceeding remotely,

• delaying the hearing until an in-person hearing could be scheduled would prejudice either party, and

• it is in the interest of justice to adjourn the matter for an in-person hearing.

[5] I have already addressed a motion pursuant to s.11(b) of the Charter of Rights and Freedoms, in the which the defendant claimed that his rights to a trial within a reasonable time had been breached. I denied that motion for reasons I set out at that time. Granting this motion would only occasion further delay.

[6] Further, after the motion was addressed before me, I was alerted to concerns that Mr. Watson may have difficulty accessing video in the Court. At that time, I advised him to inquire with Court’s administration, as it was my understanding that the Court is able at least in some cases to facilitate zoom access to proceedings for accused. I have since confirmed that this support is available. Today’s motion suggests that Mr. Watson has not followed up on this possibility. I have taken it upon myself to confirm that the facility is available for the trial dates. As a result, Mr. Watson would have zoom capabilities for each day of the trial proceeding. In light of that, I am satisfied that Mr. Watson’s fair trial rights will be fulfilled.

[7] The parties have submitted that reliance on technology may cause delays. I anticipate that these would have been factored in when the trial estimate was completed and the trial days were set.

[8] Balancing the interests, I am satisfied that the grounds for an order to conduct the trial in person are not met, and the matter will be heard remotely.

Donald Dudar

Justice of the Peace