ONTARIO COURT OF JUSTICE

DATE: 2022 05 13 COURT FILE No.: Pembroke 20-0815

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AUSTIN BROWN

RULING RE MISTRIAL

Before: Justice J.R. Richardson

Heard on: December 2, 2021; January 4, 25, 2022 Reasons released on: May 13, 2022

Counsel: Goher Irfan, for the Crown Mark Ertel, for the defendant Austin Brown

RICHARDSON, J.:

[1] Does the court lose jurisdiction over the trial of an accused person in circumstances where, through no fault of the accused person, they were not present for approximately 15 minutes of evidence because they were disconnected from their audio and video conference trial? This is the issue that presents itself in this case.

Facts

[2] Austin Brown is charged with Impaired Driving and 80+. The offence date is June 18, 2020.

[3] The information was sworn on July 7, 2020.

[4] On July 22, 2020, Mr. Ertel filed a designation of Counsel, pursuant to section 650.01 of the Criminal Code to appear for Mr. Brown.

[5] On December 2, 2020, the Crown elected to proceed summarily.

[6] On October 18, 2021, the matter was set for trial before me to take place on December 2, 2021. Crown and Defence agreed that the matter could proceed by Zoom.

[7] When the trial commenced on December 2, 2021, I was in the courtroom with the Clerk and the Reporter. Defence Counsel, Crown, Mr. Brown and the first Witness, Constable Jesse Kisters, were appearing by zoom from elsewhere. Defence Counsel and Mr. Brown were not appearing from the same place.

[8] On March 11, 2021, Mr. Ertel on behalf of the accused filed an application seeking relief under the Canadian Charter of Rights and Freedoms. It was agreed that the application would proceed on a “blended” basis with the trial.

[9] The first witness, Constable Jesse Kisters of the Renfrew OPP, testified in-chief. Mr. Ertel commenced his cross-examination at 10:59 AM. At approximately 12:26 PM, Mr. Ertel noticed that Mr. Brown was no longer on the zoom platform. Mr. Ertel made further inquiries of his client and was advised that he missed approximately 15 minutes of Constable Kisters’ cross-examination.

[10] We stood the matter down to try to determine whether Mr. Brown’s absence for those 15 minutes went to the heart of the Court’s jurisdiction to hear the trial and accordingly whether a mistrial had to be declared.

[11] Ultimately, I ordered Crown and Defence to provide submissions on this issue. After reviewing those submissions, and hearing argument, I determined that for reasons I would give later, I would not declare a mistrial.

[12] I noted that on the day of the trial, and later in his submissions, Mr. Ertel indicated that it was Mr. Brown’s wish that the case proceed without a mistrial.

[13] I further ordered that a transcript of all of the evidence of Constable Kisters be prepared and that that Mr. Ertel review that transcript with his client prior to resuming the trial at a later date. I further ordered that Mr. Brown hear the recording of the evidence in the presence of Mr. Ertel prior to resuming the trial at a later date. Finally, I ordered that when the matter resumes, it shall resume in person.

[14] These are my reasons for not declaring a mistrial.

The Context of the COVID-19 Pandemic and Its Effect on the Administration of Justice

[15] When this trial was first commenced in December 2021, the court and society in general were still under the grips of the COVID-19 pandemic. Pursuant to R. v. Morgan [1], I take Judicial Notice of the nature of the ongoing COVID-19 pandemic including the following:

a) transmission of the virus may occur directly or indirectly;

b) people may spread the virus while they are presymptomatic or asymptomatic;

c) the virus can be lethal;

d) rates of mortality appear to be more pronounced among older citizens as well as those with underlying conditions such as respiratory ailments;

e) social distancing lessens the rate of infection in the population;

f) the rise of the Omicron variant in late November early December 2021 heightened the risk of contracting the virus because this variant is far more contagious than other strains of the virus detected thus far;

g) the best way to avoid the lethal and more serious effects of the virus is to submit to vaccination;

h) there is a small, but not insubstantial, minority of individuals who have refused to submit to vaccination. This minority at the time that this case was anticipated to be heard, in tandem with the Omicron variant, was causing a steady increase in infection. This ultimately led the Government of Ontario to introduce more restrictive measures and delay reopening in January 2022.

[16] When this matter came to trial, “proceeding remotely” for trials had become a common and everyday practice in the County of Renfrew. It was so routine, in fact, that this trial commenced with very few comments on the record about the fact that the case was proceeding in this fashion. By the time this trial was being heard, proceeding by videoconference, once a novel prospect had become routine, particularly where, as in this case, it was all taking place on the consent of the parties.

[17] As I prepare these reasons, the spectre of widespread infection and the potential for a new lethal variant continues to haunt us. At the same time, there is a significant backlog of cases awaiting trial in the Ontario Court of Justice. Every second of court time, already a valuable commodity prior to the COVID-19 Pandemic, is now even more precious.

The Law

[18] Summary Conviction matters are dealt with in Part XXVII of the Criminal Code. Section 800 of the Criminal Code states:

(1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

(2.1) If the summary conviction court so orders and the defendant agrees, the defendant who is confined in prison may appear by closed-circuit television or video conference, as long as the defendant is given the opportunity to communicate privately with counsel if they are represented by counsel.

[19] Section 803 of the Criminal Code deals with the power of the summary conviction court to proceed ex parte. It states:

(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

(b) may, if it thinks fit, issue a warrant in Form 7 for the rest of that defendant and adjourn the trial to await their appearance under the warrant.

[20] By virtue of section 795 of the Criminal Code, the provisions of Part XX (procedure in jury trials) also apply to summary conviction proceedings “in so far as they are not inconsistent with” Part XXVII “apply, with any necessary modifications”.

[21] Before I go on to discuss the salient sections from Part XX, I observe the following themes from Part XXVII:

a) It would seem to be statutorily possible for an accused person not to appear at all for their trial; they can appear by counsel. This is subject to the trial judge directing that the accused person appear personally.

b) A defendant who is in prison may appear by videoconference as long as they have an opportunity to communicate with their lawyer.

c) It also seems to be statutorily possible for a summary conviction matter to be heard in absentia.

[22] As I will set out in greater detail below, these provisions allow for less formality and rigour than Part XX. While some of them are rarely resorted to in Ontario in 2022, it is important to observe that proceeding “summarily” means, exactly as the word implies – without customary formality.

[23] In a jury trial proceeding, section 650 of the Criminal Code states:

(1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

(1.1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or video conference, for any part of the trial other than a part in which the evidence of the witness is taken.

(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or video conference, for any part of the trial other than a part in which the evidence of the witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel.

(2) The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or

(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that the failure to do so might have an adverse effect on the mental condition of the accused. [Emphasis mine]

[24] Section 650.01 allows an accused to appoint counsel and for appointed counsel to appear by designation. Section 650.01(3) of the Criminal Code states:

If a designation is filed,

(a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than

i) a part during which oral evidence of a witness is taken,

ii) a part during which jurors are being selected, and

iii) an application for a writ of habeas corpus;

(b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and

(c) a plea of guilty may be made, and the sentence may be pronounced, only if the accused is present, unless the court orders otherwise. [Emphasis mine]

[25] These sections make the personal attendance of the accused much more important than it is in summary conviction matters. It is especially important when evidence of a witness is being taken. Even then, the court has some discretion to “order otherwise” or direct “as the court considers proper”.

[26] Complicating matters further is the fact that in 2019, Parliament made amendments to the Criminal Code which added Part XXII.01 in sections 715.21 to 715.26 inclusive.

[27] Section 715.21 makes it clear that the default mechanism for appearing in court is personal attendance:

Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

[28] The use of the word “proceeding” makes it clear that this default mechanism applies regardless of whether the proceeding is an indictable proceeding or summary conviction proceeding.

[29] In section 715.22, Parliament stated the purpose of these provisions:

The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

[30] Under section 715.23, the Court may order an accused to appear 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 accused;

(b) the costs that would be incurred if the accused were to appear personally;

(c) the suitability of the location from where the accused will appear;

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

(e) the nature and seriousness of the offence.

[31] Parliament clearly envisioned that there will be occasions where it will be “appropriate”, following the tests set out above, for proceedings to take place virtually. The use of the words “having regard to all the circumstances” and “includes” above makes it clear that the enumerated factors in (a) through (e) are not the only factors to be considered. Other factors may also render virtual proceedings “appropriate”. As I indicated above, the COVID-19 Pandemic has made this a veritable no-brainer.

[32] That said, if Parliament clearly envisioned that proceedings could take place virtually, it clearly also must have considered – particularly having regard to the nature of the state of the art with respect to technology and the availability or lack of availability of stable, reliable internet connexion throughout Canada – that there would be occasions where despite the best efforts of all involved, the technology will fail. This is a risk that must be taken into account if, through using virtual proceeding technology, the intention is to function in a manner that serves “the proper administration of justice” including “by ensuring fair and efficient proceedings and enhancing access to justice.”

[33] Finally, it is important to observe that although I sit as a “statutory court” operating under the aegis of the Criminal Code and the Courts of Justice Act, “the authority to control the court’s process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law.” [2] Furthermore, “…the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime….” [3]

Analysis

[34] Mistrials are extraordinary remedies. In R. v. Toutissani [4], Justice Nordheimer (as he then was) granted an application to quash a trial judge’s ruling granting a mistrial on the basis that the trial judge had not considered other less lethal options to salvage the trial. Justice Nordheimer determined that “The declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.” [5]

[35] As I observed, as a Summary Conviction Court, Part XXVII of the Criminal Code provides for a less formal manner of proceeding than if the accused were before me on the same charge, where the Crown elected to proceed by Indictment.

[36] This important distinction must be considered when determining whether Mr. Brown’s absence for 15 minutes of evidence mandates a mistrial. While section 800 does appear to allow for trial in absentia in certain circumstances, the requirement that the accused be present enshrined in section 650 must still be respected in a summary conviction matters. The right to be present at one’s trial is also an important principle of fundamental justice which is protected by s.7 of the Canadian Charter of Rights and Freedoms. Notwithstanding section 800 and the absence of some formalities in Part XXVII, careful balance is required.

[37] In R. v. McLeod [6], Justice de Weerdt of the Northwest Territories Supreme Court dealt with the case where the trial judge proceeded with the trial in the absence of the accused in reliance on section 738 (now section 803) of the Criminal Code. Due to weather conditions, the accused could not appear for her trial. Her counsel proceeded with the trial in her absence. Justice de Weerdt concluded that the ability to proceed ex parte was not available where the defendant was unable to attend because she was “prevented by forces beyond her control from attending her trial” [7]. Justice de Weerdt was also of the view that proceeding in this fashion violated section 7 of the Canadian Charter of Rights and Freedoms because it did not pay adequate regard to the principles of fundamental justice, including the right to be present during one’s trial.

[38] In R. v. Martin [8], Justice Shaw of the Superior Court, sitting on Summary Conviction Appeal dealt with a case where the accused was charged with Failing to Provide a Breath Sample. The accused was not present for his trial and defence counsel, relying on section 800 of the Criminal Code invited the court to proceed with the trial in the absence of the accused. Justice Shaw stated:

I agree with the Crown that s. 650(1) of the Criminal Code is not applicable to summary conviction trials. The appropriate sections are s. 800(2) and s. 803(2) (a). Pursuant to s. 800(2), the defendant in a summary conviction trial may appear personally or by counsel or agent, although the summary conviction court may require the defendant to appeal personally. Pursuant to s. 803(2)(a), if a defendant does not appear at the time and place appointed for his summary conviction trial, the summary conviction court may proceed ex parte to hear and determine the proceedings in the absence of the defendant as if they had appeared.

In this case, before the trial commenced, defence counsel advised the court that Mr. Martin was in the bush around the Timmins area and that the defendant realized there was a scheduled court date but he had not realized it was for trial. Defence counsel stated:

"I have indicated to my friend (the Crown) that I am quite content to proceed with the trial having regard to the nature of the defence. I don't have instructions to do so but, I am quite comfortable to proceed with the trial in any event. So I leave that to Your Honour. I will put on record through that I don't have instructions from him, but if the Crown wishes to proceed, you can order that. It's summary conviction. And I am quite comfortable with doing the trial. So I leave it to you to decide how you want to deal with it."

The Crown advised the trial judge that it was ready to proceed. The trial judge then had Mr. Martin arraigned through counsel, a plea of not guilty was entered and the trial was held.

I am satisfied that s. 803(2)(a) authorized the trial judge to proceed in the absence of Mr. Martin.

Defence counsel at trial is a very senior, experienced member of the criminal bar in Thunder Bay. He did not object to the trial proceeding. To the contrary, he represented to the trial judge that he was "quite comfortable with doing the trial" and made it clear that he would leave the decision on whether to proceed with the trial up to the trial judge. The trial judge exercised her discretion under s. 803(2) (a) of the Criminal Code, in the context of defence counsel's representations, without an objection or a request for an adjournment. [9]

[39] In R. v. Comtois [10], Associate Chief Justice Marrocco of the Superior Court of Justice was sitting on a certiorari application. The accused was charged with summary conviction proceedings contrary to the Excise Act and on the first day of trial, their counsel advised that they did not wish to appear in person. Justice Knott, the trial judge, ordered the accused to appear for arraignment and to remain for procedural discussions about the trial, after which they could be excused from attending. The accused applied for certiorari on the basis that Justice Knott had exceeded his jurisdiction. Justice Marrocco declined to grant this relief, noting that although section 800 of the Criminal Code authorized the Summary Conviction Court to proceed in the absence of the accused, Justice Knott did not exceed his jurisdiction or act arbitrarily when he ordered the accused to appear for arraignment. The judgment makes it clear how rare it is to proceed in the absence of the accused, even in the Summary Conviction Court:

It is clear from the transcript that the absence of the applicants was not anticipated. Both the Federal Crown and the trial judge had assumed that the defendants would personally appear at the trial, while counsel for the applicants had assumed that they would appear by counsel. Accordingly, the initial discussion concerning the applicants' absence was confusing. Counsel for the Federal Crown thought that the applicants were required to appear in person; the trial judge thought that the applicants should attend in person to be arraigned and then request permission to be absent. However, within a short period of time, the trial judge's attention was called to section 800 (2) of the Criminal Code, which provides as follows:

800.(2) A defendant may appear personally or by counsel or agent but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

[40] The modern view of section 650 was first enunciated by Justice Martin in R. v. Hertrich, Stewart and Skinner [11] and later adopted by Supreme Court of Canada in Vezina v. The Queen [12] where Justice Lamer (as he then was) writing for a unanimous panel, summed it up this way:

… the accused’s right to be present at his trial means that he has the right “to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests.” This obviously includes

…proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge’s charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty. [13] [Emphasis mine]

[41] After this decision, the analysis in most cases turned to whether things which were discussed in the absence of the accused which could involve his vital interests. Often, these cases involved in-chambers discussions where the accused was not present. The vast majority of these cases occur in cases involving trials by jury and in, many of them, the Appellate Court was left to consider whether the defect could be cured by the proviso in section 686(1)(b)(iii) and (iv) of the Criminal Code.

[42] Because some of the principles enunciated in those cases inform my decision on whether the accused’s non attendance for fifteen minutes of cross-examination goes to the heart of my jurisdiction to continue this trial, I now turn to consider them.

[43] In R. v. Simon [14], one of the grounds of appeal advanced was that the trial judge irretrievably ran afoul of section 650 when he conducted the first of five pre-charge conferences with counsel in chambers to the exclusion of the accused. Justice Watt said this about whether breaches of section 650 can be cured by the proviso:

To determine whether a breach of s.650(1) may be salvaged by the application of the proviso in s.686(1)(b)(iv) requires a consideration of all the circumstances surrounding the violation. Relevant factors may include, but are not limited to, (i) the nature and extent of the exclusion, including whether it was inadvertent or deliberate; (ii) the role or position of the defence counsel in initiating or concurring in the exclusion; (iii) whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused; (iv) whether any discussions in the accused’s absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters; (v) the effect, if any, of the discussions on the apparent fairness of trial proceedings; and (vi) the effect, if any, of the discussions on the decisions about the conduct of the defence. [15] [Emphasis mine]

[44] In R. v. E.(F.E.) [16], the Ontario Court of Appeal considered a case where, in the course of a jury trial, the accused was in the witness box testifying in cross-examination. The trial judge asked the prosecutor about the relevance of some of the propositions that were being put to the accused. The Prosecutor asked for the jury to be excluded. Following the jury’s exclusion, at the trial judge’s invitation, the accused/witness was also excluded. The exclusion lasted nine minutes. There was no objection from Defence Counsel. The accused was excluded a second time in the trial when the pre-charge conference took place in chambers in the absence of the accused. Applying the proviso, Justice Watt found that the accused did not suffer any prejudice as a result of his exclusion during the objection in his cross-examination, noting that “[n]one of the discussions had any effect on the conduct of the appellant’s defence or impaired its advancement.” [17]

[45] The answer was different, however, with respect to the absence of the accused during the pre-charge conference. Justice Watt expressed concern at the lack of any information on the record concerning what happened during the pre-charge conference. What Justice Watt said about the nature of this error is instructive:

The appellant’s absence from the pre-charge conference and the conduct of the conference in the judge’s chambers impaired the appearance of fairness, compromised the transparency of the trial proceedings and was at odds with the open court principle. Proof of actual prejudice is not a condition precedent to demonstration of a miscarriage of justice. An appearance of unfairness will suffice.

Final instructions to a jury in a criminal case are of the utmost importance to the person whose liberty is at stake. Those instructions explain the basis upon which the accused’s liability will be decided in his or her defence assessed. An accused is entitled to hear why some instructions are included and others are omitted from the charge – firsthand, the complete version and not a synopsis after the fact. The exclusion of an accused from the entire pre-charge conference undermines both the appearance and the reality of the due administration of justice. [18]

[46] In a case decided before the amendments in sections 715.21 to 715.26 were passed, and before the COVID-19 Pandemic swept the world and altered everything we have known and taken for granted both inside and outside the legal system, the Newfoundland and Labrador Court of Appeal considered the effect of new and emerging technology with respect to video appearance by accused against section 650 of the Criminal Code. Justice Harrington noted that:

These sections indicate strongly that the fundamental assumption made by the Code is that all the participants in a criminal trial – the parties, the witnesses, counsel, the jury and the judge – will generally be physically present in the courtroom in sight of one another. This notion of “the court” reflects the tradition of our legal system, explained by the Supreme Court of Canada in R. v. Levogiannis, affirming the judgment of Morden, A.C.J.O of the Ontario Court of Appeal:

…. it is an accepted tradition of our legal system the judge, jury, witnesses, accused and counsel are all present in sight of each other…

However, by permitting video appearances for the accused and witnesses in some circumstances the Code also recognizes that courts have evolved and technology has progressed with time and the need for physical presence in the courtroom is not as great as it was at the time the traditions of our legal system were established. That is, while physical presence by all trial participants in the courtroom remains the norm and time-tested best practice for ensuring a fair trial, as long as the purposes of section 650(1) are respected, the accused’s “presence in court” may, in exceptional circumstances, be secured even if there is an interference with the direct line of sight between the judge, the accused and the witnesses, for example if there is a video appearance. [19] [Emphasis mine]

The Principles Applied

Is Section 800 Dispositive of The Issue?

[47] The Crown urges me to find that section 800 provides a complete answer to the dilemma posed here. I disagree. Section 800 allows an accused to elect to not be present for his or her trial and proceed in absentia when represented by counsel. But what if the accused wants to be present and their presence is stymied by the technology?

[48] In Martin, Justice Shaw found that the case could proceed in the absence of the accused based on the word of his experienced counsel, who it is clear, was acting without instructions. I distinguish Martin. In the case at bar, the accused person clearly wanted to be present for his trial and was present but for the technical issue that caused him to drop out of the zoom platform for 15 minutes. In these circumstances, we cannot simply resort to section 800 to nullify the accused’s desire to be present.

[49] With respect to Justice Shaw, I doubt the correctness of the decision in Martin. I do not believe that counsel may, without instructions, waive their client’s right to be present for their trial even in a summary conviction matter governed by section 800 of the Code [20]. At minimum counsel must have clear instructions from their client, and even then, the court has the overriding discretion to order that the accused appear, which is enforceable by warrant.

[50] In my view, this is the only way that apparent inconsistency between sections 650.01(3) and 800(2) can be resolved with the Hertrich and Vezina caselaw which mandates that the accused be present for anything that involves discussion of his vital interests.

[51] Under Part XX (Jury Trials) and Part XIX (Trials without a Jury), the requirement of presence is absolute except as provided for in the exceptions in section 650 [21], the exceptions in 650.01, or as permitted pursuant to Part XX.01 (Remote Attendance).

[52] Under Part XXVII (Summary Conviction Proceedings), the de facto requirement is personal attendance, except as permitted pursuant to section 650, Part XX.01, or on the explicit and clear instructions to counsel. In the case of the latter, even then the trial judge may order otherwise.

[53] Similarly in Comtose, the accused persons wanted to be absent from their trial and unlike Shaw, their counsel had firm instructions to that effect. So resolute was their desire to be absent that they brought a certiorari application to challenge the trial judge’s requirement that they at least appear personally for their arraignment and for procedural discussions surrounding their absence. In the case at bar, on the contrary, Mr. Brown wanted to be present for his trial and until technological failure, was present.

[54] In my view, the reasoning in McLeod is more persuasive. An accused person is entitled to be present, and it is presumed that they will be present for their summary conviction trial unless they have explicitly waived that right or instructed their counsel to waive that right on their behalf. Absent that, the court should not proceed to hear the case in absentia and to repeat the words of Justice de Weerdt, a judge should not proceed ex parte where the accused is prevented from attending by forces beyond their control. In McLeod, it was the weather. In Mr. Brown’s case, it was caused by technical malfunction.

Is The Agreement to Appear Remotely a “Condition” under Section 650(2)(b), Failing which the Accused has Waived the Right to be Present?

[55] The Crown further argues that by agreeing to proceed remotely, Mr. Brown waives his right to appear personally and section 650(2)(b) allows the trial to continue notwithstanding a technical problem has caused him to lose contact. The Crown did not cite any authorities for this proposition.

[56] I disagree. Section 650(2)(b) allows the accused to be out court for his trial on the condition that he is attending by technical link. A defect in that technical link cannot constitute a waiver in the right to attend.

Does the Agreement to Appear Remotely Constitute a Complete Waiver of Section 650?

[57] The Crown argues, citing R. v. Gates [22] that the agreement to proceed remotely constitutes a waiver of the right to be present under section 650. I disagree. With respect to Crown counsel, this is not the ratio in Gates.

[58] In Gates, the British Columbia Court of Appeal dealt with a case where the accused was absent for two aspects of his trial: the judgment and the sentencing. He had agreed to appear remotely for his trial. The proceedings in question took place on two separate days. The proceedings took place by telephone. The court concluded that not being present for the judgment “did not affect his vital interests” (an argument I will deal with more fully below) and therefore the violation of section 650 was not serious.

[59] The court found differently, however, with respect to the sentencing. The accused could not speak to counsel, nor could he make his own submissions. About this Justice Ryan stated: “The problems that occurred in the sentencing hearing were not just harmless procedural errors, but errors that affected the fairness of the proceedings. The appellant, without his consent, was not fully present for his sentencing hearing.” [23] The British Columbia Court of Appeal then proceeded to sentence the accused as a sentencing de novo.

There is no Prejudice to the Accused by Proceeding with the Trial

[60] The Crown argues that there should not be a mistrial in this case because notwithstanding the breach of the accused’s right to be present, there is no prejudice to him. Here I agree with the Crown.

[61] As a result of COVID-19, the Court has had to embrace videoconferencing technology in order to function in an age of social distancing. That videoconferencing is not foolproof. Nor is it always a complete substitute for the in-court manner of proceeding that we all knew prior to the pandemic. There will invariably be cases where there will be defects in form, but not necessarily a defect in the substance or the function, of proceeding. Such is the case here.

[62] While breach of the right to be present for one’s trial is a serious matter, there are other ways that can, in this case, function to substitute for Mr. Brown’s inability to observe 15 minutes of cross-examination at first instance.

[63] Following Hertrich, Simon, E.(F.E.) and Gibbs, I find that there are other remedies available and a mistrial is not necessary.

[64] Mr. Brown has the ability to hear that evidence in the form of a recording. I have ordered him to listen to it.

[65] He also has the ability to read that evidence in the form of a transcript. I have ordered him to read it.

[66] He also has the ability to discuss that evidence with his counsel prior to his counsel resuming the cross-examination of the witness. I have ordered them to discuss it.

[67] By making the order that the rest of his trial shall proceed in person, he has the ability to hear and observe the rest of the cross-examination as well as any re-examination of Constable Kisters. I have so ordered.

[68] Mr. Brown has missed the ability to physically observe the witness while testifying in those 15 minutes of cross-examination. While in some cases, this might be sufficient to warrant a mistrial, I do not believe that this is the case here.

[69] I say this because this matter is a somewhat routine drinking and driving case and the witness who is testifying is a police officer. The result might well be different if Mr. Brown were on trial for some other charge where there is a civilian complainant. Notwithstanding the limited use of demeanour evidence to the court, observation of the witness’s demeanour in court may be more important for the accused to observe than it is in the case before me. That can be decided another day.

[70] Considering the factors set out by Justice Watt in Simon, I find that

a) the nature and extent of the exclusion including whether it was deliberate or inadvertent: Cross-examination of a witness in any trial has long been recognized as one of the most important facets of our criminal justice system and the best way to arrive at the truth. This factor favours a mistrial. On the other hand, the exclusion was inadvertent; indeed, the Court, Crown counsel and Defence Counsel were so engrossed in the evidence that no one noticed that the accused was no longer present on the zoom platform for 15 minutes.

b) The role or position of the defence in initiating or concurring in the exclusion: The defence had no role in initiating the exclusion. The defence only concurred in the exclusion to the extent of recognizing that Mr. Brown would like to continue the trial without a mistrial. Defence counsel quite properly raised Mr. Brown’s non-attendance with the court and agreed that it created a procedural problem that needed to be dealt with. This factor favours continuing with the trial.

c) Whether any subjects discussed during the exclusion were repeated on the record or otherwise communicated to the accused: Fortunately, there is a complete transcript available as well as a recording. I have ordered Mr. Brown to read the transcript and listen to the recording and there is sufficient time for him to speak to his counsel about it before proceeding with the trial. This factor favours continuing to proceed.

d) Whether any discussions in the accused’s absence were preliminary in nature or involve decisions about procedural, evidentiary or substantive matters: I have already discussed the fact that what took place in the absence of the accused was cross-examination of an important witness – the witness who stopped the accused and is said to have formed the grounds to require the accused to provide a sample of his breath. This is evidentiary and substantial. This factor favours a mistrial.

e) The effect, if any, of the exclusion on the apparent fairness of trial proceedings: As I have set out, I believe that any effect that the exclusion may have on the fairness of the trial proceedings can be compensated for by listening to the recording of the evidence and reading the transcript of the evidence. To borrow from Justice Watt’s reasoning in E.(F.E.), I do not believe that the circumstances of this case impairs the appearance of fairness, compromises the transparency of the trial proceedings or is at odds with the open court principle. To borrow from Justice Lamer in Vezina and Justice Martin in Hertrich, Mr. Brown’s “right to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests” has not been impaired by what took place. To borrow from Justice Harrington in Gibbs, the recording and the transcript ensure that the purposes of section 650 are respected. This is also clearly an exceptional circumstance. This factor favours proceeding.

f) The effect, if any, of the discussions on the decisions about the conduct of the defence: There is no evidence that the exclusion will have any effect on decisions about the conduct of the defence.

[71] In balancing these factors, I find that they favour proceeding with the trial.

[72] Lastly, I would be remiss if I did not point out that now, perhaps more than any other time in our history, trial judges need the ability to fashion solutions for practical problems that arise in the course of trials, such as we have in this case. As Justice Green wrote in his separate but concurring opinion in Gibbs:

It is recognized that in twenty-first Canadian society that we must do better in the delivery of justice services, to facilitate access to justice and reduce unnecessary delay, amongst other things. This of necessity involves modifying processes and accommodating new methods of doing things to ensure that the court can function efficiently in the new environment….

This is not a question of whether the traditional ways may be better, only whether new ways can be adopted which still fundamentally preserve the basic values, principles and rights involved in the notion of a fair trial and hence the operation of the essence of the court process. As has been noted on other occasions, an accused is entitled to a fair trial, not a perfect one. [24]

[73] This trial will resume on June 6, 2022 at 9:30 am with the continuation of the trial.

[74] The proceeding will resume fully in person.

Released: May 13, 2022 Signed: Justice J.R. Richardson

[1] R. v. Morgan, 2020 ONCA 279; See also R. v. Mishuk, 2021 ONCJ 202 and the cases cited therein. [2] R. v. Cunningham, 2010 SCC 10 at paragraph 19 [3] ATCO Gas and Pipeplines v. Alberta, 2006 SCC 4 at paragraph 51, cited with approval in Cunningham, supra, at paragraph 19. [4] R. v. Toutissani, aff’d 2007 ONCA 773 [5] R. v. Toutissani, supra at paragraph 21. [6] R. v. McLeod [7] McLeod, supra, at page 384. See also R. v. Tarrant where the court found that the section was not unconstitutional in circumstances where the accused did not appear as a result of his own fault. [8] R. v. Martin, 2013 ONSC 5219 [9] R. v. Martin, supra, at paragraphs 11 to 15. [10] R. v. Comtois, 2015 ONSC 5064. [11] (1982), R. v. Hertrich, Stewart and Skinner, 67 CCC (2d) 510 (Ont. C.A.) [12] (1986), Vezina v. The Queen, 23 CCC (3d) 481 (SCC). See also Chief Justice Dickson’s judgment in R. v. Barrow, 38 CCC (3d) 193 (SCC) [13] Vezina, supra, at page 488 (references omitted) [14] R. v. Simon, 2010 ONCA 754 [15] Simon, supra, at paragraph 123. [16] R. v. E.(F.E.), 2011 ONCA 783 [17] E.(F.E.), supra at paragraph 43. [18] E.(F.E.), supra, at paragraphs 51 and 52 [19] R. v. Gibbs, 2018 NLCA 26 per Harrington, J.A. at paragraphs 25 and 26. [20] R. v. Page, cited with approval in Hertrich, supra, at paragraph 52. [21] See, for example, R. v. Drabinsky, OJ 3136 (SCJ). [22] R. v. Gates, 2002 BCCA 129 [23] Gates, supra, at paragraph 24 [24] Gibbs, supra, at paragraphs 78 and 81 per Green, J.A.