ONTARIO COURT OF JUSTICE

DATE: 2023 04 20 COURT FILE No.: Pembroke 22-0613 (Criminal) and 22-100 (POA)

BETWEEN:

HIS MAJESTY THE KING

— AND —

LUIGI HAAIMA

RULING RE TRIAL BY VIDEO CONFERENCE

Before: Justice J.R. RICHARDSON

Heard on: April 6, 2023 Reasons for Judgment released on: April 20, 2023

Counsel: Conor Kyte, Counsel for the Crown Cedric Nahum, Counsel for the accused

RICHARDSON J.:

Facts

[1] Luigi Haaima is charged with two counts of Failing to Comply with a Probation Order, contrary to section 733.1 of the Criminal Code. He is also charged with two counts of Drive Suspend one count of Use Plate Unauthorized contrary to section 12, one count of Having More than Zero Milligrams of Alcohol in 100 ml of blood while being a Novice Driver, all contrary to section 53(1), 12(1) and 44.1 of the Highway Traffic Act. Finally, he is charged with one count of operation without insurance contrary to section 2(1)(a) of the Compulsory Automobile Insurance Act.

[2] The Crown has proceeded summarily.

[3] The trial is set for May 10, 2023. The trial date was set on September 21, 2022.

[4] Counsel for Mr. Haaima has brought an application to permit Mr. Haaima to attend his trial by zoom on the basis that Mr. Haaima is now residing “an hour and a half away from Pembroke” and does not have transportation to Pembroke for his trial.

[5] The Application does not set out any other specifics as to Mr. Haaima’s situation which would support the notion that his trial should proceed virtually.

[6] Mr. Haaima is not in custody.

[7] Renfrew County is the largest county in the Province of Ontario. It is larger than the Province of Prince Edward Island [1]. The “county seat” for Renfrew County is Pembroke and all trials in criminal matters take place in Pembroke. This has been the case, except on rare occasions, since the Renfrew Court was closed for criminal trials sometime in 2015. It has been entirely the case since the Renfrew Court was closed and became a virtual court as a result of the COVID-19 Pandemic in March of 2020.

[8] Renfrew County does not have a public transportation system.

Analysis

[9] Section 715.21 of the Criminal Code, sets out the de facto rule that any person who appears at, participates in or presides at a proceeding shall do so personally.

[10] The Criminal Code was amended in 2022 by Bill S-4. Prior to the amendments, pursuant to section 715.23, a court had discretion to order an accused to attend for his or her trial by audio conference or videoconference, if the court was of the opinion that “it would be appropriate having regard to the circumstances”, including,

a) The 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.

[11] Following the amendments, which were assented to on December 15, 2022, appearance by audio or video conference in an indictable matter requires the consent of both of the parties. If the proceedings are before a jury, the accused must attend personally.

[12] The waters are significantly muddied in the case of summary conviction proceedings. Section 715.232 now states:

715.232 The court may allow an accused to appear by videoconference at a trial for a summary conviction offence

(a) if the accused is not in custody, with the consent of the accused and the prosecutor; and

(b) if the accused is in custody, with the consent of the accused.

[13] This would seem to provide that only if both parties consent to the accused appearing by teleconference, can the court consider it. Then (and only then) the court must follow the language of section 715.23 as amended which states:

715.23 Before making a determination to allow or require an accused or offender to appear by audioconference or videoconference under any of sections 715.231 to 715.241, the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the accused or offender;

(b) the costs that would be incurred if the accused or offender were to appear in person;

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

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

(e) the nature and seriousness of the offence.

[14] Thus, on the language of the new amendments, the court does not appear to have any residual discretion to permit the accused to appear by video conference for his or her trial where the Crown is not consenting. There is a residual discretion in section 715.24 which provides:

715.24 In any proceedings in respect of which this Act does not expressly authorize the court to allow an accused or offender to appear by audioconference or videoconference or limit or prohibit their appearance by those means, the court may allow the accused or offender to appear by either of those means.

[15] Arguably, section 715.24 does not apply because the Code does expressly authorize to allow the accused or offender to appear by videoconference in summary conviction proceedings where, in the case of an accused who is not in custody, Crown and Defence consent. That seems to be the plain reading of the statute as it is presently framed.

[16] But wait! Parliament did not amend section 800 of the Criminal Code, which allows a defendant in a summary conviction proceeding to appear personally, or by counsel or agent. This allows for the possibility that a trial will proceed in absentia, which is a rare occurrence today, at least in Ontario. Section 800 of the Criminal Code provides that:

800(1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.

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.

[17] It cannot have been Parliament’s intention to allow for the possibility that a trial could proceed in absentia but limit the availability of a trial by videoconference – where the accused will be present (virtually) – to only those cases where Crown and Defence agree. I therefore find that section 715.232 must be read to give the court residual discretion where the Crown and Defence do not agree.

[18] There are many valid reasons for doing so. COVID-19 has taught us that it is important that our public institutions have the capacity to quickly pivot to be able to respond to calamities of all shapes and sizes. Virtual proceedings are an example of how the justice system can quickly react to pandemics, disasters and crises large and small. They also can allow for greater access to justice. Ontario is also a very large and diverse province. It is vital to our democracy that just, equitable, efficient and expeditious justice continue to be dispensed with as little disruption as necessary. Virtual proceedings can allow the system to continue where in person proceedings are impossible.

[19] Additionally, there are cases where an accused person and other justice participants, due to the resources available to them or illness, simply cannot attend court in person. Virtual proceedings can allow for the system to adapt to these realities and in this way allow for greater access to justice. There may be others. Section 7 of the Charter, for example, requires, as a basic tenant of fundamental justice, that a court or tribunal operate in a way that is procedurally fair. There may be times when the requirement to appear in person is incongruous with procedural fairness.

[20] These are sound public policy reasons that make it clear that the court should continue to have residual discretion to permit one of the parties to apply to the court for an order that their proceeding take place by videoconference. There may be others.

[21] However, this is not a “blank cheque” that is merely available for the asking. Mere convenience to the accused, or to his or her counsel, is not sufficient. Parliament’s clear intention in enacting section 715.21 is that criminal cases are to proceed in person unless there are valid reasons for ordering otherwise. To dislodge the presumption of personal attendance, it is necessary for the accused to ensure that their application offers evidence that meets the circumstances enumerated in section 715.23 of the Criminal Code and any other circumstance that renders proceeding by video conference practicable or impracticable.

The Location and Personal Circumstances of the Offender and The Costs that Would be Incurred if the Accused were to Appear Personally

[22] There must be evidence that the accused’s inability to get from the accused’s place of abode to the courthouse is impractical. The absence of public transportation is not, without more, sufficient. The cost of attending court is, however, a factor that can and should be considered, particularly if the trial is anticipated to be lengthy. The fact that the accused has some disability that makes it impractical for him or her to attend in person is also a factor that may be considered here.

[23] There must be evidence that the accused understands the solemnity of the occasion and will observe rules of courtroom decorum, including the requirement that they will dress appropriately, not consume food or beverages (other than water), not smoke or vape, not make any outbursts that would disrupt the proceedings, and maintain an appropriate sitting or standing position. The accused cannot use an inappropriate background. The accused must understand that they are prohibited from audio or video recording the proceedings and they must understand not to do so.

[24] Some may be surprised that in 2023, one needs to lay down such basic rules of decorum, but given my experience (and the experiences of many of my brother and sister judges) during COVID-19, unfortunately, this is the case.

The Suitability of the Location from Which the Accused Will Appear

[25] There must be evidence that the accused has access to a place where he or she can attend the proceedings (and participate) without interruption. There must be evidence that they shall do so in the absence of any witnesses.

[26] An accused person should not attend court from their car (neither should counsel), from their bed or from their bathroom. They should not be working, walking their dog, or doing their make-up. Small children and pets cannot disrupt the proceedings.

[27] There must be evidence that the accused has access to reliable internet through which he or she can participate. There must also be evidence that the hardware used to access the proceedings is also reliable. For example, the trial proceeding cannot be delayed to allow the accused time to charge the battery on his or her cell phone. Significant problems arise where the trial is underway, and the accused, who is presumed to be desirous of participating in his or her trial, suddenly disappears from the screen without explanation and without notice of other participants. [2]

The Right to a Fair and Public Hearing

[28] Where exhibits such as photos, video, audio, and documents are anticipated, there must be a plan in place for provision of those exhibits to the court and to ensure that the accused has an opportunity to virtually examine them. If the case involves evidence that is sensitive or graphic, the trial (or the part of it that will deal with sensitive or graphic evidence) should take place in person.

[29] Where the accused is represented by counsel, and it is anticipated that they will not be in the same location during the trial, there must be evidence that there is a plan for solicitor-client communications to take place in private. This is necessary to comply with section 742.243.

[30] In my view, only in exceptional circumstances should an unrepresented accused not appear in person for their trial. Section 742.242 makes it clear that the court must be satisfied that the accused understands the proceedings and his or her decisions during the proceeding are voluntary. The complex nature of criminal trials today are such that there are often situations that this requires extra effort. When court is being conducted in person, a case can be easily stood down to allow the accused an opportunity to seek some quick advice from Duty Counsel with respect to an issue that may arise. While this may still be possible in a virtual appearance, it is often extremely time consuming to locate Duty Counsel and facilitate the accused’s communication with him or her.

[31] In my view, only in exceptional circumstances should the accused appear for trial by audio only. Not only must the court be seen and heard but the court must be able to see and hear the proceedings. Seeing the accused is on line is the only way that the court can ensure that the accused continues to be present for the proceedings.

[32] A judge should be satisfied that the virtual appearance will not render the proceedings more protracted or time-consuming. While some annoyances or inconveniences which naturally flow from the nature of virtual communications are unavoidable, if it is clear that the virtual appearance will require significantly more time or expense to complete because of the virtual nature of the appearance, it should remain in person.

The Nature and Seriousness of the Offence

[33] Generally speaking, the more serious the offence, the more rigorous the Court should be in insisting that the proceedings take place in person.

Other Factors

[34] There may be other factors which should be considered.

Application to the Case at Bar

[35] The grounds for the Application before me are: “Mr. Haaima resides an hour and a half away from Pembroke, and is currently not permitted to drive as a result of his charges”. That’s it. That’s all.

[36] In the commentary to Rule 2.1 of the Rules to the Ontario Court of Justice, the court states:

The only document that the party who is bringing an application before the Court under these rules must use is a Form 1 application. It is important that the application in Form 1 is filled out completely, as this will assist the Court and the other parties to understand the relief sought and the reasons in support of the Application.

[37] This makes it clear that a party is not required as a matter of course to call evidence, file an affidavit or provide other evidence, other than transcripts, to support their application. In fact Rule 2.3(1) states:

If the application in Form 1 complies with Rules 2.1(2) and (3) no additional material need be served and filed unless required by an order of a pre-trial or trial judge.

[38] In this case, the bare assertion that Mr. Haaima’s trial should not take place in person because of his difficulties in getting transportation to Pembroke is not sufficient. More is required. Thus, the Application is dismissed.

[39] I will grant leave to reconsider the Application if counsel wish to file a further and better Application record that addresses the other issues that I have set out in these reasons.

Released: April 20, 2023 Signed: Justice J.R. Richardson

Footnotes

[1] Considering that the catchment area for the Ontario Court of Justice for Renfrew County also includes those portions of Algonquin Park that are policed by the Ontario Provincial Police detachments for Killaloe and Upper Ottawa Valley, the intake area is actually much larger than the physical boundaries of the County of Renfrew.

[2] See my decision in R. v. Brown 2022 ONCJ 226 regarding the effect that the accused’s sudden disappearance in a zoom trial can have on the trial judge’s jurisdiction.