R. v. Gurmanpreet Grewal, 2022 ONCJ 383

DATE: August 24, 2022 ONTARIO COURT OF JUSTICE

R. v. GURMANPREET GREWAL

Ruling re an application by the accused to participate remotely pursuant to s. 715.23

Counsel: P. Ducharme for the applicant K. Yeh for the Crown

Background

[1] This application arises in the context of a scheduled trial of 10 accused individuals. I am the assigned trial judge. The charges involve allegations of importing extremely large quantities of various controlled substances as well as criminal organization charges. One of the accused (not the applicant) is also charged with counselling murder.

[2] The trial is scheduled to start with an application to cross-examine the affiant in furtherance of a Garofoli application. It is contemplated that this aspect of the motion will be heard on August 31 – Sept 2, 2022.

[3] The Garofoli application itself is scheduled for November 7 – 10, 2022.

[4] Other motions, as well as submissions on the Garofoli application are scheduled throughout the fall of 2022. The substantive trial is scheduled for approximately 10 weeks in the summer and fall of 2023.

[5] The trial will involve the hearing of intercepted communications, surveillance video and documentary evidence. Several of the accused (although not the applicant) will require interpreters. It is anticipated that there will be approximately three Crown counsel and 10 – 13 defence counsel involved in the proceedings. I estimate that there will be, on average, approximately 35-40 critical participants in the courtroom at any given time.

The Application

[6] Just over one week ago Mr. Ducharme contacted the trial coordinator asking her to ask me whether I would allow him and his client to participate remotely by videoconference. She informed me that the Crown and the other defence counsel were consenting to the request. I asked her to tell Mr. Ducharme to file an application to be heard today before me. All counsel were notified of today’s hearing. Mr. Yeh appeared for the Crown. No counsel for the other accused appeared.

[7] Mr. Ducharme filed a written application dated August 17, 2022. The application seeks the following relief: “This is an Application to request that the Garofoli Application hearing on August 31, 2022, be conducted in a hybrid fashion, allowing Counsel and the Applicant to appear via Zoom.”

[8] The reasons for the application are set out as follows:

“1) Counsel for the Applicant is in a vulnerable class for the Covid-19 virus. 2) It is safer for all concerned to conduct the Application hearing via zoom. 3) This court has conducted trials and hearings in a hybrid format with counsel appearing via zoom and has the capability to accommodate this format. 4) Any further and such grounds as counsel may advise and this Honorable Court may permit.”

[9] Since there was no affidavit material filed with the application, I had to question Mr. Ducharme about his vulnerability. He said it was because he is 72 years old. He further said that he always applies for such an order and usually prevails.

[10] It became apparent during today’s hearing that, despite the wording of the application, in fact Mr. Ducharme is seeking an order permitting him and his client to participate remotely for the entire trial. It is proposed that Mr. Ducharme participate by Zoom from his office in Windsor while the applicant participates by Zoom from his home in Toronto.

[11] While Mr. Yeh was prepared to consent to the application as concerns the proceedings scheduled for August 31 – September 2, 2022, he expressed reservations about the application as concerns the entirety of the trial.

Analysis and Decision

[12] The application is governed by s. 715.23 of the Criminal Code which reads as follows:

715.23 (1) Except as otherwise provided in this Act, 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.

[13] If the applicant and Mr. Ducharme were allowed to participate remotely, they would not be able to communicate with each other during the trial, except during breaks in the proceedings. This would seriously impair the applicant’s right to a fair hearing.

[14] The technological accommodations that would be necessary to fully incorporate both the applicant and Mr. Ducharme into the trial process would be unwieldy and distracting, especially as concerns the playing of audio and visual evidence. No evidence was presented at the hearing as to the reliability of the applicant’s location and Zoom connection. He did not participate in the hearing.

[15] In my opinion, having regard to these circumstances and given the seriousness of the alleged offences, it would not be appropriate to permit the applicant and his counsel, Mr. Ducharme to participate remotely.

[16] The application is denied.

Justice Russell Silverstein August 24, 2022