ONTARIO COURT OF JUSTICE DATE: 2022 05 10 BRACEBRIDGE

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

GRAHAM POLMATEER

Before Justice JON-JO A. DOUGLAS

Heard on MAY 9, 2022

Reasons for Judgment released on MAY 10, 2022

WILLIAM BARNES............................................................................. counsel for the Crown JAY HERBERT................................................................................ counsel for the accused

DOUGLAS J.:

RULING RESPECTING REQUEST FOR AN APPLICATION BY THE ACCUSED FOR AN IN-PERSON TRIAL, AND A S. 714 APPLICATION BY THE CROWN

[1] For the following related reasons, I dismiss Mr. Polmateer’s application (the Defence Application) and order that the trial proceed remotely on May 12, 2022, as previously set. And, while it is moot given my ruling in respect of the Defence application, I would otherwise have allowed the Crown application under 714. As the Crown made extensive written and overlapping arguments on each of these applications, I have discussed these below as one.

[2] I apologize to all for the somewhat difficult ordering and sloppy formatting of this hastily prepared judgment.

COMPLIANCE WITH THE RULES

[3] The Defence application was not brought until April 5, 2022. The Criminal Rules require 60 days notice. The purposes of these rules are themselves part of the Rules:

“(1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

(a) dealing with the prosecution and the defence fairly.

(b) recognizing the rights of the accused;

(c) recognizing the interests of witnesses; and

(d) scheduling court time and deciding other matters in ways that take into account

(i) the gravity of the alleged offence,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for accused and for others affected, and

(iv) the requirements of other proceedings

Under the Rules all participants have obligations:

“In every proceeding, each counsel, paralegal, agent and litigant shall, while fulfilling all applicable professional obligations, ( a ) act in accordance with the fundamental objective; and ( b ) comply with (i) these rules, (ii) practice directions, and (iii) orders made by the Court.”

[4] The 60-day rule must be understood in the context of these purposes. That is, it is not an arbitrary rule, but one directed to ensure the efficient delivery of justice. The rules recognize that the polity as a whole and the justice system has limited resources that ought not to be squandered. Requiring due notice of such an application serves both the objectives of justice and efficiency. Parties need time to understand, respond and prepare for trials conducted based on the known circumstances and any anticipated changes to those circumstances.

[5] While I will have further comment respecting Covid related matters below, I note three matters of note now.

[6] First, the impact of Covid on the criminal justice system has been profound. Negatively, it has created a previously unknown ‘back-log’ of cases. As counted for statistical purposes, the cases on hand, that is, within the system and before the courts have increased by approximately 60,000. Positively, if only as a survival mechanism, the courts have found the value of modern technology and its ability to deliver justice. Remote or virtual proceedings will not simply disappear as the pandemic becomes endemic if it does.

[7] Second, in this case, the principal Crown witness is no longer a resident of the province, and it has for many months been contemplated that that witness would testify remotely from British Columbia; a method that, incidentally, saves the province a few thousand dollars and the witness some considerable inconvenience and difficulty. At this late stage, his actual attendance for the set date should it have proceeded in person was not possible.

[8] Third, I was assigned this matter precisely because it was scheduled remotely or virtually as I am not yet sitting in person for reasons known to my Court.

[9] Given these three factors, the lateness of the application would have clearly made it very difficult to reschedule this proceeding. Indeed, an in-person in court proceeding on May 12 was presumed by all to be impossible.

[10] For those reasons, I deny leave to hear the application outside of the 60-day period.

CHIEF JUSTICE’S GUIDELINES OF MARCH 18, 2022

[11] While the very limited material filed by the Accused makes it very difficult to assess just why the Accused is now seeking an in-person appearance, it might have been prompted by the new guidelines the Chief Justice on March 18, 2022. If so, those guidelines were not read very carefully. There she stated:

“The Office of the Chief Medical Officer of Health recently announced the easing of COVID-19 public health measures, including lifting capacity limits in public spaces such as courthouses. This has increased the Ontario Court of Justice’s capacity to return to in person proceedings.

The Court remains committed to using technology to better serve court users and improve access to justice, including the use of remote technology (video or telephone) in appropriate cases. Moving forward, OCJ criminal proceedings will be heard in-person, by remote technology (video or telephone) or a combination of in-person and remote technology. The Court will be engaging in consultations with its justice partners to determine how best to implement this vision in the long term. In the meantime, the Court has established interim guidelines for modes of appearance in criminal proceedings, which will come into effect April 4, 2022 [emphasis added].”

[12] The guidelines also stated in respect of trials and preliminary hearings that these would be in-person, but that “For matters that have already been pre-tried and scheduled (on consent) as virtual (or hybrid) hearing will continue in the mode scheduled, unless otherwise directed [emphasis added]”.

[13] We must take it as known to the Chief Justice that the rescheduling of matters from virtual or hybrid to fully in person would create scheduling havoc. We must also take it that this phraseology reflects her awareness that almost all the matters scheduled were scheduled on consent, after a Crown pre-trial, after a Judicial pre-trial and after a Scheduling Conference with the Trial Coordinators.

[14] While it is self evident that the trial judge would retain jurisdiction to order a so-called in-person hearing, it would clearly be contrary to the attempt of the Chief Justice to move forward as the province is trying to move forward without the havoc of undoing all the scheduling that has been done for over two years.

[15] I am thus of the view that converting this matter into an in-person proceeding would be contrary to the Chief Justice’s attempts to promote a reasonable process of scheduling that going forward allowed for proceedings “to be heard in-person, by remote technology … or a combination of in-person and remote technology”. This is not simply as the Accused put it ‘a matter or resources’ as opposed to a ‘matter of rights. With respect, no rights exist in a vacuum. All rights are exercised or not within certain available parameters. No one gets a fair trial if the resources dedicated to all are not equitably distributed.

THE AGREEMENT AS TO THE MODE OF TRIAL WAS AKIN TO AN ADMISSION THAT SHOULD NOT BE ALLOWED TO BE WITHDRAWN

[16] In my view the Crown is correct to characterize the agreement as to the mode of trial as akin to an admission of fact. Clearly, it is not the same thing as an admission of identity or bodily harm, but it affects the smooth and just functioning of the system in a very similar way.

[17] As the Crown notes at footnote 19, Lapps is authority that suggests even an estimate as to the length of trial can require “an application”.

[18] To underline this point is important. An estimate as to the time of trial is crucial to the efficient scheduling of the limited trial time available in any court. Indeed, such estimates are the quanta on which that available time is parcelled out; and the inability of anyone to estimate accurately is justification for over scheduling any court day so that matters underestimated can utilize the time gained by those who overestimate the time needed. The decision to conduct the trial remotely was one that thereafter dictated just how the matter would be scheduled to proceed. To change that is to just as fundamentally interfere with the smooth functioning of the system as it is to say, ‘I thought a day, but now I think a week’.

[19] As accurately summarized at paragraph 8 of the Crown’s submissions “parties are entitled - indeed expected - to rely on such admissions and they may only be withdrawn with the authorization of the trial judge.” And, as the Crown argues at paragraph 11, Justice G. Arthur Martin, the, if I may, G. Arthur Martin, clearly thought this was for a very good reason

“simply put, if Crown counsel, defence counsel, and police officers cannot rely upon each other with respect to the information they convey to each other about the case at hand, none of these three parties can properly do their own job, and the administration of justice as we presently understand it becomes unworkable.”

[20] There is simply nothing in the record before me that suggests, at all, that anything of significance has so changed that the prejudice to the Accused of denying his decision to now want an in-person trial outweighs the prejudice to the system – that is, to all participants in the justice system – by having an unstable scheduling system that cannot best serve those varied interests.

[21] I thus find that the Accused is bound by his earlier decision to agree to an in-person proceeding. If he had some sort of right that only he could waive, he waived it.

THE CHIEF JUSTICE’S PROTOCOL OF APRIL 4 CHANGED EVERYTHING ARGUMENT

[22] Closely related to the Accused’s assertion that he can waive or withdraw his consent at any time is his assertion that all he was doing from the beginning was following the guidance of the Chief Justice: there can be no appearances, to all appearances are presumptively remote, to all appearances are presumptively in person. And now that the scheduling matters are presumptively remote and all pre-existing covid protocols have been withdrawn by the Province and the Court, any prior concession he made to those protocols, despite the clear contrary language of the Chief Justice, should effectively be deemed ineffective simply because he now asks for an in person in a court room trial, because otherwise he has lost his right, as discussed below, to an inperson in a court room trial through no fault of his own.

[23] The Accused is somewhat arguing that his agreement was extorted under the fear of Covid. His counsel’s somewhat gleeful references to the removal of capacity limits, distancing, masking requirements and plexiglass as only now allowing him his full opportunity to exercise his rights in a physical court room is cited as a reason enough to allow him to change his mind.

[24] I would agree that the in-courthouse protections, if not Covid, itself, has changed or is changing dramatically. Now or shortly, there will be:

• No health screening prior to entry
• No building or courtroom capacity limits
• No courthouse or courtroom distancing requirements
• No participant vaccine or testing mandate
• No participant masking mandate
• No enhanced cleaning.

It, of course, is to some an open question whether long attendances in such facilities will or will not increase the risk of Covid transmission in that environment.

[25] The Crown notes though that just because the Accused’s risk tolerance may have changed that is no reason to relieve the Accused from his agreement to a remote trial. To quote the Crown at paragraph 15 his submission requesting a change as to mode of trial: “COVID-19 still exists. Masks are strongly recommended [citing the Simcoe-Muskoka Public Health Unit]”.]

[26] Indeed, today that same unit reported 667 new cases in the last week, 29 current Hospitalizations, with 2 new deaths in May and deaths in April (after exclusion of another 12 who died with Covid of other causes) [COVID-19(simcoemuskokahealthstats.org) COVID-19 (simcoemuskokahealthstats.org) and COVID-19 Monitoring Dashboard (simcoemuskokahealthstats.org)]

[27] Simply put, as it stands now, this court could not operate safely, if at all, if all matters that have been set to proceed remotely suddenly became in person, in a court room proceedings; nor, of course, could the back log be addressed. Requiring more and more persons to attend in person as any sort of participant will simply decrease that ability.

THE PRESUMED RIGHT TO AN IN PERSON, IN A COURT ROOM TRIAL NEEDS TO BE THOUGHT ABOUT

[28] Two views seem to be developing as to just what the phrase, ‘in person’, means or should mean in this advanced electronic age and particularly after the onslaught of this pandemic.

[29] Before addressing these views, though it needs to be noted that there is no such right enumerated in the Charter. In addition, neither s. 650 nor 715.21 uses this phrase.

[30] Rather s. 650 simply says, “an accused … shall be present in court during the whole of his or her trial” and is “entitled … to make full answer and defence personally or by counsel”. And s. 715 states that “a person who appears at, participates in or presides at a proceeding shall do so personally [emphasis added].”

[31] Nowhere is the phrase ‘in person’ used in s. 650 or in 715.23, 715.24, 715.25 or 715.26. Nowhere is the notion of attendance in a physical court room said to be required.

[32] Perhaps this error flows from the language of the learned editors of Martin’s who indicate that the section, 715.21 “begins by reiterating the general rule that in criminal matters individuals are to appear in person”. While the continuing comment respecting how the section is then structured is fair – it “sets out a series of provisions allowing for use of videoconferences and audioconferences” – doing something ‘in person’ is simply not the same as doing something ‘personally’.

[33] While our language has become much looser, dictionaries can still assist.

[34] One of the Cambridge dictionaries defines personally as:

“adverb US /ˈpɜr·sə·nəl·I / Personally can refer to yourself or your own opinion : Personally, I think their marriage won’t last. I haven’t been there personally, but I’ve read a lot about it. If you do something personally, you do it yourself rather than asking someone else to do it: He plans to personally direct the fund-raising drive . He believes that parents should be made personally responsible for their children’s behavior . Personally also refers to an intentionally offensive remark about someone’s character or appearance or which is understood as being critical : Pleas e don’t take this personally, but I think you need to brush your teeth . (Definition of personally from the Cambridge Academic Content Dictionary © Cambridge University Press)”

None of this carries a simplistic notion of physical presence or being in person at some physical site.

[35] Somewhat in contrast, the Oxford Canadian Dictionary notes:

“1. in person [but as in] see to it personally. For one’s own part (speaking personally); 3. As a person (I don’t know him personally…]” Even here, though, the idea of physical presence in a particular location is not key

[36] An older Websters, (1913) does hint at the idea of physical presence some­where:

“ Per´sonally

1. In a personal manner; by bodily presence; in person; not by representative or substitute; as, to deliver a letter personally.

He, being cited, personally came not.

• Grafton.

2. With respect to an individual; as regards the person; individually; particularly.

She bore a mortal hatred to the house of Lancaster, and personally to the king.

• Bacon.

3. With respect to one's individuality; as regards one's self; as, personally I have no feeling in the matter. The meaning "applicable to, directed at, or aimed at some particular person" (usually in a hostile manner) is attested from 1610s. Designating an official or employee attached to one's person (as in personal secretary ) by 1928.

[37] Yet, etymologically, the word is rooted in:

“ personal (adj.) late 14c., "private, pertaining to the self or to a self-conscious individual; performed by the individual himself," from Old French personal (12c., Modern French personnel ), from Late Latin personalis "pertaining to a person," from Latin persona (see person ). The meaning "applicable to, directed at, or aimed at some particular person" (usually in a hostile manner) is attested from 1610s. Designating an official or employee attached to one's person (as in personal secretary ) by 1928. The noun sense of "newspaper item about private matters" is attested from 1888. As "a classified ad addressed to an individual," it is recorded from 1861. Personal computer is from 1976. [Online Etymology Dictionary]”.

[38] The root or adjective thus has little obvious connection to physical presence, though the adverb, ‘personally’ has, maybe, a little more:

“Late 14c., “in person; by one’s own actions,” from personal + - ly (2). Sense of “with respect to an individual” is from late 15c. Meaning “as far as I’m concerned” is from 1849.

[Online Etymology Dictionary]”.

[39] My point is not to suggest that the idea of being physically in person does not have some basis in our use of the language. Rather, I am suggesting that the emphasis of the language is much more or deeper than that and reflects more the involvement of the person than the person’s physical presence somewhere.

SOME RECENT LAW

[40] In the Crown’s very able and thorough submissions, the Crown discusses Daley, Jassem, Y.A., Mischuk, and Jeffries, all helpfully cited and linked in those submissions.

[41] In Daley, Justice Monahan addressed and rejected the decision of Justice Downes in Candelaria. Justice Downes had found that a guilty plea by phone was not possible given s. 650(1). Justice Monahan found that such a plea was authorized under s. 650(2)(b) and s. 715.23. I accept Justice Monahan’s reasoning and its purpose:

“There is no express prohibition against a plea by audioconference under the Criminal Code. The Code must be read as a whole with the new amendments brought in by Bill C 75. It is my view that section 650 goes part of the way towards introducing the use of technology and, in particular, videoconferencing, during the course of a trial including the taking of a plea. Section 715.23 builds on the provisions of section 650 by now allowing for audioconference as well as videoconference in a wide variety of circumstances including pleas. In my view, sections 606 and 650 are not in conflict with section 715.23. Section 715.22 is also instructive in this regard as it describes the use of audioconferencing or videoconferencing as serving the “proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice”. To interpret section 650 as effectively prohibiting pleas by audio and then to conclude that it has been “otherwise provided’ in the Code that there can be no pleas by audio and that therefore 715.23 does not permit a plea by audio does not interpret any of these provisions in a manner that promotes access to justice.] If section 650 and 715.23 were to be interpreted so narrowly as to only permit pleas by video and prohibit a plea by audioconference, then accused persons would not just find themselves in jail. They would find themselves in jail in something akin to a Franz Kafka novel. Take a person in a time served situation (not necessarily Mr. Daley’s situation). Prisoners are no longer being brought to court during the worldwide pandemic. All plea and bail hearings across the Province previously done in person are now being done only by audio and video. However, most courts and correctional institutions have little videoconference capacity. Audioconferencing is more readily available. For example, I conducted the plea and sentencing in this case from my office telephone. There was no need for a courtroom or a correctional facility with video capabilities, just a telephone and a conference call number. If a narrow interpretation of subsection 650(2)(b) and section 715.23 were to prevail excluding a plea by audioconference, an accused person in a time served situation who wishes to plead guilty by audioconference would be told that they have to serve more time. They would have to “get in line” and wait for a videoconferencing option or time slot to materialize. They would have to do this in a context where courts and jails across the province are seeking to do what they have never done before namely have all prisoners appear remotely for substantive hearings. To give a pop culture analogy, if a person in a time served situation could only plead guilty by video, they would find themselves in something like the Hotel California, they can check in, but they can’t leave. That is to say, if pleas had to be done by video only, cases would no doubt arise whereby people in a time served situation would be unable to plead and be sentenced and released in a timely way even when they have served all or more of the sentence they will ultimately receive [para. 27 and 28] ”.

[42] In Jassem, Justice Kenkel ordered the continuation of a preliminary hearing by Zoom under s.715. Justice Kenkel took a similar approach stating:

“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 video conference. 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.

In the alternative, if the existing provisions read together do not provide for virtual attendance at a preliminary hearing without consent, then in my vie w 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 com ply 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.”

[49] In Jeffries, Justice McKay took a different approach, allowing himself, the crown and all witnesses to proceed remotely, but allowing the accused and his counsel to attend in person a court room empty for all but the staff. Justice McKay felt constrained by the statutory framework to allow this oddity. I for the reasons noted by Justices Kenkel and Monahan feel no such constraint. In addition, the effect of Justice McKay’s rulings allowing the accused and counsel to attend was to increase the risk of exposure to Covid to court staff, presumably a court clerk and a reporter. In my view, that was an unnecessary risk that they should not have required to undertake given the reasonable alternative.

[50] In Mischuk, Justice Latimer granted a crown application under 714.1 and 715.25(2). Taking judicial notice of the ongoing Covid epidemic, Justice Latimer noted that he could “set out reasonable conditions at the outset of the witness’s testimony and will monitor compliance throughout”. He also noted that the presence of the crown was of a different order than that of a witness as they simply “present the evidence”.

[51] Most importantly, paraphrasing from Richard Susskind, The Future of Courts, he noted that “Justice is not a place, it is a service”. This article is well worth the read to anyone thinking on this subject.

[52] This thought is key. As my reference to the language above suggests, the constitutional ideal ought to not be the attendance of anyone in some bricks and mortar shrine to justice representing, to some the Majesty of the Law, and to some, only the brute power of the state. It, rather, is the ability of all to participate personally in the process. To the extent such mediums as Zoom facilitate this access to justice is enhanced and, there is no principled reason to reject their propriety.

[53] In many ways, courts in Canada and elsewhere have long been conducting Important business remotely in many ways. As noted by the Crown at paragraph 15 of their s.714 application, the right to a fair and public hearing is not offended by video testimony as acknowledged by the Supreme Court of Canada in their pithiest judgment I know of:

“We are all of the view that this appeal must be dismissed for the reasons given by the British Columbia Court of Appeal [R. V. J.Z.S., 2010 SCC 1, affirming BCCA].”

[54] This decision made clear that there is no American-like Sixth Amendment right to confront an accuser; a right that for many years has entailed a notion of in person in a courtroom confrontation. And it should be clear that many of that Supreme Court’s decisions do insist on in-person confrontation in person. But some do not. For example, in Maryland v Craig 497 US 836 (1990), the Court upheld a law permitting a child to testify as to sexual abuse by use of closed circuit television:

Although face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause," Green, 399 U. S., at 157, we have nevertheless recognized that it is not the sine qua non of the confrontation right. See Delaware v. Fensterer, 474 U. S. 15, 22 (1985) (per curiam) ("[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness testimony"); Roberts, supra, at 69 (oath, cross-examination, and demeanor provide "all that the Sixth Amendment demands: 'substantial compliance with the purposes behind the confrontation requirement'") (quoting Green, supra, at 166); see also Stincer, 482 U. S., at 739-744 (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses, where defendant had opportunity for full and effective cross-examination at trial); Davis v. Alaska, 415 U. S. 308, 315-316 (1974); Douglas v. Alabama, 380 U. S. 415, 418 (1965); Pointer, supra, at 406-407; 5 J. Wigmore,

Evidence § 1395, p. 150 (J. Chadbourn rev. 1974).”

[55] At paragraph 16, the Crown cites R. v. Lucas-Johnson. In that, the Court said

“I must also concern myself with the right of the accused to make full answer and defence. There are certainly advantages to having CM in Toronto to testify in person. However, considering my own experiences with video link trials and accepting the observations of other courts, I find that with the current developments in video technology the right to face one’s accuser in this context can permit an expanded meaning for the concept. Although video link attendance by a witness should not be the rule, facing one’s accuser does not necessitate confronting the accuser in the flesh as long as the accused can know the case against him; as long as he is present in court and can see and hear the evidence of his accuser. That can be accomplished by video link [2018 ONSC 2370]”.

[56] The Crown also notes R. v Mattu, 2019 ONCJ 517:

[12] I am not concerned that the video link will interfere with either the court’s ability to assess A.B.’s evidence, or the defendant’s right to make full answer and defence. Modern video technology should allay any concern that a witness’ virtual presence is that much different from a witness’ actual presence. Given that anyone with a smartphone and an internet connection can speak clearly with someone on the other side of the world, I can infer that the video technology to be used in this trial will be of a similar quality.[3] Neither the court’s ability to assess the witness’ evidence, nor counsel’s ability to cross-examine the witness, will be hampered by the witness not being physically present. Since A.B. will be testifying by video even if she is in Ontario, the court’s ability to assess the witness will not be any different than if she testifies by video link. Also, I do see how defence counsel’s inability to be in the same room as A.B. will impact on his right to make full answer and defence. The video will make A.B.’s face fully visible in court. It will display her mannerisms and demeanour.

[13] Moreover, insofar as the concerns that assessing witness credibility by video is more difficult because the witness’ demeanour is not as visible, it is also important to consider the role that demeanour plays in credibility assessments. While a court can consider a witness’ demeanour in assessing credibility, the case law is replete with warnings about overreliance on demeanour evidence in making such assessments. Witnesses come from different backgrounds. They have different personalities. The court, and counsel, see a witness for a brief slice of time, usually with little to no baseline with which to compare the witnesses’ demeanour at certain points in their testimony. I echo the following comments of Mcaulay J. in R. v. Turner:

[12] As to the assessment of credibility, sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying. In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err. [4]

[14] In any event, as I have already said, video permits a court to see a witness’ face. A.B.’s demeanour will be visible. And as my colleague Duncan J. observed in R. v. Allen, when a witness testified by video, the court has the benefit of seeing the witness’s full face from a frontal view, rather than in profile as is typically the case.[5] Allowing A.B. to testify remotely will not impair the respondent’s ability to make full answer and defence. Therefore, the fact that she is the central witness against the respondent does not weigh as significant in the balance as the concern about having her travel thousands of kilometres across the country to testify in Brampton.[emphasis added]”.

[57] The Crown quotes further from Allen, noting Justice Duncan’s comments that Video testimony is “only distinguishable from the real thing in the obvious superficial ways. In substance it was the equal of having the witness in court [R. v. Allen, 2007 ONCJ 209, at para 37]”.

[58] Finally, the Crown also cites R. v. Y.A., 2021 ONCJ 295. There, during a ruling respecting the provision of a remote hearing during the suspension of in-person proceedings in our court Justice Konyer said the following:

By appearing at his preliminary inquiry remotely, Y.A. will be attending the functional equivalent of a courtroom. He will be able to see and hear the Crown, the witnesses, his lawyer and the Judge. He will be able to speak to his lawyer in private using the breakout room function at any time. He can make himself heard just as he would if he were before me in a physical courtroom. His counsel will be able to cross examine both witnesses fully and to make complete submissions as to whether the Crown has met the test for committal. As Latimer J. aptly observed in R. v. Mischuk, 2021 ONCJ 202 at para. 5, “[j]ustice is not a place, it is a service.” In every way that matters, Y.A. will be present at his preliminary inquiry if I order that he attend by videoconference in a virtual court. Justice can be served fully through a preliminary inquiry conducted in this manner [emphasis added at paragraph 13]”

[59] In short, the developing law is decidedly against the ‘we must return to the way it was before’ argument made by the Accused which is very much an argument that there is a constitutional right embedded in the Charter. Perhaps it is hidden in section 7, as a principle of “fundamental justice”? Maybe it can be found is the s.11 (d) language that there be a trial “according to law in a fair and public hearing”? Implicit in this argument is that the Accused and only the Accused can waive this right to an in-person trial in a physical court room attended in person by all participants. Respectfully, I disagree with such a narrow view of the capacities of the justice system to deliver fundamental justice in a fair and public hearing by means other than requiring the personal attendance of all in a bricks and mortar building.

[60] And to be clear, that is much of what the argument was: he would be prejudiced by not being able to review the original officer’s notebook and/or the alcohol influence report in-person in a courtroom; and by not being able to ‘see’ the witness in court; and by having to be in his lawyer’s office. I see little here, but certainly nothing insur­mountable by some form of accommodation or other, if necessary.

[61] With respect, I see no merit in any of the submissions respecting the sort of factors noted in 715.23, 715.25 and 715.26. Certainly, the Accused has woefully failed to establish any concern respecting an issue of fundamental justice or his right to a fair and public hearing.

CONCLUSION

[62] The Accused’s Application is dismissed.

Released: MAY 10, 2022