ONTARIO COURT OF JUSTICE DATE: 2021·02·10 NEWMARKET
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
R v SALLOUM JASSEM ET AL
APPLICATION BY DWAYNE COUNSELL TO CEASE ATTENDANCE BY VIDEOCONFERENCE s 715.23(3)
Submissions Heard: February 10, 2021. Delivered: February 10, 2021.
Counsel: Mr. James Clark ………………………………………………….Counsel for the Federal Crown Mr. Don Carter ………………………………………………………….Counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Counsell attended the preliminary hearing today by Zoom from a new mobile pod set up for that purpose at the Central East Correctional Centre (CECC). Mr. Counsell spoke with his lawyer Mr. Carter and indicated his preference that he attend in person for the remainder of the hearing. Mr. Counsell applies under s 715.23(3) to cease attendance by videoconference.
[2] These reasons explain why I find there is jurisdiction to compel Mr. Counsell to continue to attend the preliminary hearing by videoconference without his consent, and why I find it necessary during the pandemic to do so.
The Application to Attend In Person
[3] This hearing involves 9 accused persons facing a combined 117 charges that arose during an investigation known as Project Platinum. Three of the persons charged are in custody with no video or audioconference option so they must attend in person in the courtroom. One person in custody is attending via audio from Maplehurst due to the COVID outbreak in that facility. Mr. Counsell attended in person for the first two days of the preliminary hearing until the new video pods at CECC were made available.
[4] There have been up to 25 participants attending this preliminary hearing on the Zoom platform. All of the prosecutors, defence lawyers, witnesses and the judge are on Zoom. To this point the Zoom platform has worked well for everyone.
[5] During the COVID pandemic, the Ontario Court of Justice is encouraging the use of virtual hearings, consistent with the directions and measures taken by the province to protect public health. I note that under current regulations, this hearing could not lawfully or safely be held in any Newmarket courtroom if every participant was required to attend in person.
[6] The travel and personal attendance by persons in custody creates some risk for them and everyone involved in their processing and transport. It also poses risk to the court officers, court clerk and court reporter who must stay in the courtroom with them during the trial. To address that risk the court has put in place protective equipment to ensure safety, all parties are masked throughout, and the court ordered at the outset that social distance rules must be obeyed.
[7] Mr. Counsell applies to return in person for the remainder of the proceedings. There is no suggestion that he cannot follow the proceedings remotely as everyone else has been doing. His counsel was candid in saying that the reason for the request is simply a preference for personal attendance rather than being alone in a pod for the day.
[8] I understand Mr. Counsell’s preference, and I understand the context – that COVID measures to protect inmates in the jails have resulted in a number of inconveniences including more time in “lockdown”. Everyone is experiencing restriction during COVID and of course the situation is worse for those in detention centres.
Is There Jurisdiction to Compel Attendance by Videoconference?
[9] For indictable matters, the presumption is that the accused is to be present at the hearing – Criminal Code ss 650(1), 715.21. In September of 2019, the Code was amended by Bill C-75 which added Part XXII.01 to permit remote attendance by all parties via audioconference and videoconference. The purpose of the new provisions was to serve the proper administration of justice by ensuring fair and efficient proceedings and enhancing access to justice through the use of audio and video technology – s 715.22. Parliament could not have guessed that months after the provisions took effect, courts across Canada would be compelled by the COVID pandemic to move all proceedings online. The C-75 amendments were critical to continuing the administration of justice in criminal proceedings during this period.
[10] The new section 715.23 is prefaced by the words “except as otherwise provided for in this Act”. The Criminal Code contains legacy provisions from 1999 when the Code was first amended to permit limited use of technology for non-trial proceedings. Further amendments were made in 2007 including provision for “simultaneous visual and oral communications” in various proceedings including preliminary hearings (s 537(j),(k)) “other than where the evidence of a witness is taken”. That restriction remained despite the addition of s 537(j.1) that allowed the court to permit the accused to be absent during the whole or any part of the inquiry. The court could order complete absence when evidence was taken, but not attendance via videoconference.
[11] Unfortunately, when the C-75 amendments introduced a comprehensive scheme to govern remote attendances in Part XXII.01, the older sections 537 (j) and s 650 (1.1,1.2) were not amended or removed. Some have questioned whether the insertion of “except as otherwise provided” in s 715.23 combined with inconsistent existing restrictions in sections like 537(j) effectively renders the new provisions of no effect.
[12] Taking a purposive approach, and reading the Criminal Code provisions as a whole, I find the provisions do not conflict. Parliament intends each provision to have meaning and does not intend to produce absurd consequences. I find the legacy provisions and the new Part XXII.01 are not contradictory, they simply provide different paths by which a party may seek an order regarding attendance by videoconference. If the applicant relies on s 537(j) for a routine appearance where evidence is not being heard, the court may grant that order under that section without considering any of the criteria set out in ss 715.23 to 715.26. This application engages s 715.23 and the criteria under that section must be applied. The restrictions in 537(j) don’t apply because the order is not being made under the authority of that section.
[13] In the alternative, if the existing provisions read together do not provide for virtual attendance at a preliminary hearing without consent, then in my view during this period of national emergency not contemplated or provided for in the Criminal Code, it would be part of a court’s general power to regulate their proceedings (s 537(1)(i) in preliminary hearings) that a court take reasonable steps to comply with public health directions and regulations and to protect the health of all participants. See: Ontario v Criminal Lawyer’s Association, 2013 SCC 43 at para 44, and R v Cunningham, 2010 SCC 10 at para 19.
The Principles Applied
[14] The court must consider the criteria for virtual appearance by an accused under ss 715.23(1) and 715.24. Mr. Counsell is in custody at the CECC and appeared today via a mobile pod set up at the institution specifically for court attendance via videoconference. His attendance in that manner is safer for him than travelling to and from the courthouse each day. During the pandemic, such transport would pose an unnecessary health risk for all involved.
[15] The personal attendance of Mr. Counsell would require further security in the courtroom and increase the number of persons in that room. That’s an unnecessary health risk for Mr. Counsell, for the other inmates who do not have the option to attend via video, and for the courtroom staff and court officers who must work in that room.
[16] Section 715.23 did not contemplate the impact of a global health crisis on the courts. Public health concerns related to the lethal virus and its variants surely would be consistent with those criteria. In the virtual setting, Mr. Counsell will be able to have contact with his lawyer in a private breakout room. He will have faster and easier access to his lawyer online than if he attended the courthouse where a special arrangement would have to be made.
[17] In this preliminary hearing there are 25 participants attending via Zoom videoconference. The proceedings to date show that the Zoom format is working well and does not restrict the accused’s right to a fair and public hearing.
Conclusion
[18] I acknowledge that the Ontario Court of Justice has a general policy encouraging the use of videoconference hearings on consent. In this case I find the general policy must yield to the particular circumstances which include the high number of participants, the fact that both custodial facilities involved have active cases of COVID, and the fact that the Newmarket courthouse has had cases of COVID. It’s essential that this court take all possible steps to protect the participants and the staff from the COVID virus and its more contagious variants. Mr. Counsell’s interest in attending in person is not trivial, but it simply does not compare to the very serious health risks posed by personal transport and court attendance.
[19] I find it necessary to deny Mr. Counsell’s request. I order that he continue to appear by Zoom videoconference every day that facility is available at the CECC.
Delivered: February 10, 2021.