Non-Publication and Non-Broadcast Order Warning

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 03 31 Court File No.: Newmarket 20 00638

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.(A.)

Before: Justice David Rose Heard on: March 30, 2022 Reasons for Judgment released on: March 31, 2022

Counsel: Ms. Barkin............................................................................................ counsel for the Crown Mr. Jesin……………………………………………………counsel for the accused R.(A.)

Ruling on Proceeding by Zoom

Rose J.:

[1] Mr. R.(A.) is to continue his trial on charges of sexual assault, sexual touching etc. next week, on April 4. He is applying today to have the continued trial heard virtually using Zoom. For the following reasons the Application is granted.

[2] The Crown is proceeding by Indictment, and Mr. A. elected trial in this Court on August 24 of 2021. On that day Applications were heard under s. 278 of the Criminal Code for disclosure of various documents. All parties appeared by Zoom, including counsel for the complainant, and the records holders. I dismissed the application for oral reasons on September 1 (by Zoom), and the trial commenced with evidence on October 27, 2021, again by Zoom. That day the complainant testified for the day but his evidence did not finish. The case was put over to dates in December to complete the evidence but the Crown brought an adjournment application which was granted. The case is now to re-commence this Monday, on April 4, 2022. Four days are booked. There was an interim Application to renew the s. 278 application which was heard by Zoom on February 9, and dismissed for oral reasons on March 16. That day I asked Mr. Jesin if it was the intention of all parties to continue the trial by Zoom, and invited him to speak to Ms. Barkin about the expected venue.

[3] The Defence filed an Application yesterday, which outlines that both Crown and Defence request the trial to continue by Zoom next week. It is a joint request.

The Application

[4] Mr. Jesin outlines the reasons why he as counsel requests a Zoom trial. The written Application outlines generalized concerns about coming into the Courthouse next week because of ongoing health concerns arising from the Covid 19 pandemic. As the Application stipulates, “There is no scientific or medical consensus declaring the Covid – 19 pandemic is over and no longer presents a risk to the public, Mask wearing is still encouraged in certain public situations, and self-isolation rules still apply to those who are suffering from symptoms”.

[5] Notably there is nothing in the written Application or in the oral submissions that anyone other than counsel is reluctant to come into Court for health reasons. The complainant requires a video testimony suite because of the application of s. 715.1 but that is different than the gist of the present Application.

[6] In oral submissions I heard further details about counsel’s concerns about coming into the Courthouse for health reasons. These include elderly relatives, children in school who are in contact with other children who have or might become infected with Covid. Some counsel have generalized health reasons for not coming into the Courthouse which are not immunological. Some counsel have concerns that they might presently have Covid, or are about to test positive for Covid because of their children and therefore will not be able to come into the Courthouse on Monday. As one counsel said, Zoom permits a lawyer to appear in Court even if they are ill.

[7] In submissions I asked both Mr. Jesin and Ms. Barkin when the state of the pandemic would permit in person proceedings. I was told that there is no definite moment when that will be known, but it is not now. Mr. Jesin placed some emphasis on the Court’s practise direction concerning the resumption of in person proceedings.

[8] Chief Justice Maisonneuve’s practise direction #43 from March 13, 2022 outlines how criminal trials will proceed after April 4, 2022 when the province of Ontario no longer has either capacity limits on Courtrooms or mask mandates while inside the Courtroom. In other words, after April 4, 2022 in person proceedings are permitted much as they were before the Covid 19 pandemic. The Practise direction had a section titled Interim Mode of Criminal Proceedings:. It says:

“ Trials/Prelims : Matters previously pre-tried and scheduled as virtual or hybrid will continue in mode agreed to by all parties and scheduled. All others will proceed in person for all participants unless all parties consent to any part of a hearing being conducted on video.”

But it also says that:

“ All subject to the caveat : unless otherwise directed by the judicial officer and/or the RSJ or RSJP .”

[9] Criminal trials are presumptively conducted in person. Beyond the centuries old tradition that criminal trials proceed in actual courtrooms with established rules of procedure and presentation of evidence, Parliament has made that a rebuttable presumption. In order to move an in person trial to a video trial the judge must make a finding that it is necessary under Part XXXII.01 of the Criminal Code. It is worthwhile quoting the key sections:

715 .25 715 .25(1) Definition of "participant" In this section, "participant" means any person, other than an accused, a witness, a juror, a judge or a justice, who may participate in a proceeding.

715 .25(2) Participation by audioconference or videoconference Except as otherwise provided in this Act, the court may order a participant to participate in a proceeding by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the participant;

(b) the costs that would be incurred if the participant were to participate personally;

(c) the nature of the participation;

(d) the suitability of the location from where the participant will participate;

(e) the accused's right to a fair and public hearing; and

(f) the nature and seriousness of the offence.

715 .25(3) Reasons If the court does not make an order under subsection (2) it shall include in the record a statement of the reasons for not doing so.

715 .25(4) Cessation The court may, at any time, cease the use of the technological means referred to in subsection (2) and take any measure that the court considers appropriate in the circumstances to have the participant participate in the proceeding.

715 .25(5) Costs Unless the court orders otherwise, a party who has a participant participate by audioconference or videoconference shall pay any costs associated with the use of that technology.

715 .26(1) Presiding by audioconference or videoconference Except as otherwise provided in this Act, the judge or justice may preside at the proceeding by audioconference or videoconference, if the judge or justice considers it necessary having regard to all the circumstances, including

(a) the accused's right to a fair and public hearing;

(b) the nature of the witness' anticipated evidence;

(c) the nature and seriousness of the offence; and

(d) the suitability of the location from where the judge or justice will preside.

715 .26(2) Reasons The judge or justice shall include in the record a statement of the judge or justice's reasons for the decision to preside at the proceeding by audioconference or videoconference.

715 .26(3) Cessation The judge or justice may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that the judge or justice considers appropriate in the circumstances to preside at the proceeding.

Discussion

[10] I would not launch into a lengthy discussion about the lingering effects of the Covid pandemic. I find that public health measures, including presence at a public building like a Courthouse, must apply to all subject to valid, individualized, non-speculative concerns. It is not within my jurisdiction to find that public health authorities have overestimated the safety of in person proceedings. It is not up to any individual to opt out of mandatory court appearances simply because they do not accept public heath directives any more than it is up to an individual to opt out of those public health measures because they simply disagree with them. There is a venue for challenging the lawfulness of public health measures, see for example Ontario v. Trinity Bible Chapel et al 2022 ONSC 1344 Pomerance J.

[11] I would apply the test for proceeding by Zoom as follows: This trial is very serious. It involves an allegation of sexual assault by a parent against their biological child. The complainant will be testifying at a Victim Assistance office in another Courthouse. His testimony will be received in a private space with no interference. Mr. A. will attend his trial at Mr. Jesin’s office which is also fitting, and therefore will have ready access to his counsel. It has been going over several days since last summer by Zoom. I accept that on the eve of its continuation the parties may well have been under the impression that it was to continue by Zoom. When I raised this issue with Mr. Jesin on March 16 it may well have caught him by surprise. There is some suggestion of individualized health concerns by the lawyers. I have insufficient detail to assess how much they differ from the generalized concerns about the ongoing pandemic.

[12] Those factors weigh in favour of continuing the trial by Zoom.

[13] What pulls toward an in-person trial is that Zoom creates a level of abstraction in the trial process. It is a virtual attendance, not an actual attendance. Over the course of the last two years I have presided over a substantial number of Zoom proceedings and trials. I would describe it as adequate to have a fair trial but it is not preferable to having people in a courtroom conducting trials as they have been conducted for centuries. The relative lack of solemnity, combined with inability to observe the important details of the courtroom limit Zoom’s ability to completely replicate an actual in person trial. Put bluntly, watching Shakespeare on television is not the same as live theatre. That is not a perfect analogy but I believe it captures the essence of the problem.

[14] What also pulls toward an in person trial is that in person trials have been conducted in the Ontario Court of Justice throughout the pandemic. The volume of in person trials has waxed and waned depending on the various flare ups of the pandemic, but the overall trend has been towards increased in person trials. The date of April 4, 2022 is simply another step towards resumption of normal court operations. After April 4 I would expect that the presumption of in person trials only be displaced by Application before the trial judge.

[15] On balance this is a very close case, but I would order the continuation of Zoom proceedings. If the frailties of Zoom present an inability to continue on virtually this ruling is subject to revision.

Released: March 31, 2022 Signed: Justice David S. Rose