WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

ONTARIO COURT OF JUSTICE

DATE: 2024 04 22 COURT FILE No.: Pembroke 22-37100664

BETWEEN:

HIS MAJESTY THE KING

— AND —

GM

Ruling Regarding Application for Remote Proceedings

Before: Justice J.R. Richardson

Heard on: March 27, 2024 Reasons for Judgment released on: April 22, 2024

Counsel: Richard Morris, for the Crown Ines Gavran (friend of the court), for the accused, who was also present in person

RICHARDSON J.:

Introduction

[1] GM is charged with one count of sexual assault against BH contrary to section 271 of the Criminal Code and two counts of extortion against BH contrary to section 346(1.1)(b) of the Criminal Code. These offences are alleged to have taken place in March and October 2021.

[2] The information was sworn on December 15, 2022. The matter was set for trial on November 7, 2023.

[3] A section 278 application is set for May 7, 2024.

[4] The matter is set for trial for seven days. The trial is set to commence on July 3, 2024. It is understood that the trial will proceed with or without counsel.

[5] On March 27, 2024, GM’s intended counsel brought an application on his behalf for an order that the trial be heard remotely.

[6] This decision is about whether GM and his counsel should be entitled to conduct the seven day trial remotely from Toronto.

[7] For the reasons that follow, the Application is dismissed.

The Application

[8] GM swore an affidavit in support of the application in which he deposes, among other things, that:

a) He is very familiar and comfortable with Ms Gavran as his counsel and he wishes to retain her to represent him on these charges. b) Ms Gavran’s retainer fee is substantially higher because the trial is scheduled in Pembroke, not Toronto where she normally practices, due to travel costs, food and gas costs. c) He is a member of the Canadian Armed Forces. He is currently stationed in Petawawa. He pays child support for one child. d) GM has the constitutional right to counsel of choice. e) He will have “great difficulty” retaining Ms Gavran to represent him for the trial if it must proceed in person.

[9] The Crown contests the Application for the following reasons:

a) The matter was confirmed for trial “with or without counsel” in November 2023. b) The formal retainer of Ms Gavran remains outstanding. Even if the application were granted, Ms Gavran is not retained. c) Counsel of choice is not an absolute right. d) GM lives and works within Renfrew County. e) GM has previously retained counsel from Ottawa in another matter and achieved “what can only be characterized as a good result”. f) There are skilled and experienced defence counsel that routinely practice in Renfrew County.

Further Submissions – Defence

[10] Ms Gavran made the following additional arguments when the matter came on for hearing before me:

a) She represented GM on some matters in Toronto. She stated that they have a good relationship that is well-established. b) Hearing the trial by Zoom would be “more efficient” and would cost GM substantially less. c) The complainant is also from Toronto and she wishes to appear by Zoom as well. d) This is not an overly complex case. e) Although GM works at Garrison Petawawa, he is in Toronto every weekend.

Further Submissions -- Crown

[11] Crown counsel made the following additional arguments when the matter came on for hearing before me:

a) The time requirements for the Application in the Rules have not been met. The Application is late. b) The Application is also premature because Ms Gavran has not been retained. c) There is a presumption that the case will proceed in person. The presumption is not displaced unless there are strong and compelling reasons for doing so. The facts here do not establish strong and compelling reasons. d) Ms Gavran is Toronto counsel who chose to accept a brief in Renfrew County. She chose to accept it knowing that trials are presumed to be in person. e) The only purpose of the Application was the convenience of counsel. It is not convenient to the Court or to the Crown. f) The dates that were set were set to accommodate Ms Gavran’s schedule. g) The complainant is “leaning toward” appearing in person at the trial. Alternatively, the Crown may bring an Application for closed-circuit evidence, but that would be accommodated with the complainant appearing in Pembroke.

Reply

[12] In Reply, Ms Gavran argued that:

a) With respect to late filing of materials, the Crown has been “on notice” throughout of her intention to bring the Application. The Application is not complex. b) GM definitely intends to retain her if the case proceeds by Zoom. She anticipated that the retainer would be complete by mid-May.

Decision

[13] Section 715.21 of the Criminal Code establishes the presumption that accused persons will appear for trial in person.

[14] Pursuant to section 715.23 of the Criminal Code, the Court may order an accused to appear by audioconference or videoconference if the Court is of the opinion that “those means would be appropriate having regard to all the circumstances, including:

a) The location and personal circumstance 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 the offender’s right to a fair and public hearing; and e) The nature and seriousness of the offence.”

[15] I considered this issue in R. v. Haaima [2023] ONCJ 180. Haaima was charged with much more minor summary conviction offences than GM is facing in this case.

[16] With respect to general interpretation of these provisions, I noted at paragraphs 18 through 21 that:

….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.

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.

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.

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.

[17] The ability to conduct business remotely was a godsend to the Court during COVID-19. As I have set out above, it allowed the Court to quickly pivot so that it could continue to dispense justice when sound public health measures prevented close in person contact.

[18] For the most part, it has proven to be a reliable way to conduct adjournments, remands, motions, and guilty pleas.

[19] But, as I set out herein, conducting trials remotely is not a “best practice”.

[20] The fact that during the pandemic, we “got by” conducting some trials remotely does not mean that we should continue to accept a second-class system, particularly for important trials.

[21] The COVID crisis has ended.

[22] If Parliament intended remote trials to be the norm, it would have amended the Criminal Code to provide so. It did not. Parliament intends in person trials to be the norm. That is why the presumption exists.

[23] Likewise, the Courts of Justice Act sets out an elaborate system for the establishment of courts in the Province on a county or district basis. The business of the people’s courts must be done and be seen to be done in the communities that they serve.

[24] While remote proceedings have their time and place, in my view, it is a highly imperfect and problematic way of proceeding for a lengthy and complex trial.

[25] I’ve often heard it said that proceeding using remote technology enhances access to justice. This is nonsense. It is, at best, a Band-Aid solution. By its very nature this premise accepts that a choice has been made to resource and service smaller communities different than larger ones. Bigger is not better. Technology is not an adequate replacement for local in-person provision of service. Justice cannot be delivered through a glorified call centre which is frankly what many of our post-pandemic remand and guilty plea courts have become.

[26] These are not the ramblings of a 21st Century Luddite hellbent on eschewing all forms of technology from existence. Technology has an appropriate place in our Courts. However, technology must serve the Court; the Court must not serve technology.

[27] I turn now to the particular factors that the Court must consider in Applications of this sort.

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

[28] In Haaima, at paragraphs 22-24, I stated:

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.

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.

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.

[29] The application record is completely devoid of evidence with respect to these concerns.

[30] I can easily take notice that allowing the offender to participate in the proceedings from Toronto will reduce his legal costs because he will not have to pay his counsel for travel time, hotels or meals. Toronto is approximately five hours away (by car) from Pembroke. There are no longer commercial flights available between Toronto and Pembroke. The closest airport is Ottawa. Given the distance between Ottawa and Pembroke it is unlikely that there would be any real time savings if one were to fly to Ottawa from Toronto and then travel by car from Ottawa to Pembroke. I therefore have no doubt that there would be substantial cost savings to GM if the Order sought were granted.

[31] I note that unlike a situation where an accused person has allegedly committed an offence in Renfrew County, and resides and works elsewhere, GM actually resides and works in Renfrew County. For him, there would be no personal hardship in attending Court for his trial in person. The personal hardship arises from the costs that would be incurred by having his lawyer of choice, who works and resides in Toronto, attend here.

[32] The section requires me to consider “the location and personal circumstances of the accused and the costs that would be incurred if the accused were required to appear personally”. From GM’s standpoint, apart from the fact that the lawyer he has chosen to retain lives and works in Toronto, there is no additional costs to him by proceeding in Pembroke.

The Suitability of the Location from Which the Accused will Appear

[33] In Haaima, at paragraphs 24 to 27, I stated:

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.

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.

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.

[34] The Application is also devoid of details in relation to how and from where the accused will appear. In Court, I was advised that he would probably appear from his lawyer’s office.

[35] I note that in insisting on the details that I referred to in Haaima, I am not favouring form over function.

[36] My experience in conducting trials remotely gives me significant concern about the accused’s ability to be present for his trial that do not exist when the accused is before me in person. See for example, my decision in R. v. Brown 2022 ONCJ 226 where the accused in a short impaired driving trial suddenly disappeared from Zoom during his counsel’s cross-examination of a principle witness. No one noticed it. Not the clerk, not the Crown, not Mr. Brown’s counsel and not the Court. Once the error was realized, this necessitated an adjournment and a determination as to whether the case should be mistried and the process started all over again.

[37] In this case, unlike Brown, the Crown has proceeded by Indictment. As I set out in Brown, the absence of the accused for any portion of the evidence of a witness can strike at the heart of the Court’s jurisdiction, particularly in Indictable matters. Despite the amendments to the Code, that allow for remote proceedings, the law requires the accused must be present when witnesses are testifying. There has been no change to the law with respect to the issue of loss of jurisdiction where the accused is not present for a portion of his trial.

[38] In Brown I found that the Court did not lose jurisdiction when the accused suddenly disappeared from the Zoom screen because the case was a summary conviction matter, and the Criminal Code allows for more latitude with respect to whether the accused is physically present during the trial. As I have mentioned, Brown was also a much shorter trial – one of about five hours as opposed to seven days. But for the issue of the accused disappearing from the Zoom screen, it would have been completed in a day or less.

[39] GM’s trial is set for seven days.

[40] As I have noted, the accused does have a residence in Renfrew County and it would be possible for him to appear in person. Only his counsel would appear remotely. If I were to grant leave for counsel to conduct the trial remotely, this would be the only basis on which I would grant that leave, given my concerns about loss of jurisdiction.

The Accused’s Right to a Fair and Public Hearing

[41] In Haaima at paragraphs 28, 29 and 32, I stated:

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.

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.

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.

[42] The Application record is devoid of any details with respect to a plan to deal with these concerns. There is no plan to deal with the remote presentation of evidence or how solicitor-client communications would be accommodated if GM were in Pembroke and his counsel were in Toronto.

[43] In argument, I was urged to accept that virtual proceedings are more efficient. This is hardly the case. In my experience, the reverse is true. Virtual proceedings take longer; sometimes much longer. They are rarely more efficient. The only efficiency that arises is the efficiency to counsel who can now appear in multiple courts in multiple cities in a day, all without leaving their office. This is not a consideration here. As I have said, the trial is set for seven days.

[44] With respect to counsel of choice, it has long been held that the right to counsel of choice is a fundamental right that is protected by sections 7, 10(b) and 11(d) of the Charter. It is not to be interfered with lightly: R. v. Spied; R. v. Robillard (1986) 4687 (Ont. C.A.); R. v. Brissett; R. v. Willett 2018 ONSC 5031. As Justice O’Connor (as he then was) noted in R. v. McCallen:

There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.

In addition, the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel's loyalty and dedication to the client's case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice.

The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.

In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one's own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.

Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(b) right are of fundamental importance and must be vindicated when breached.

Nevertheless, the right to retain counsel of choice is not an absolute right; it is obviously limited to those counsel who are competent to undertake the retainer and are willing to act. There are two further limitations on the right that are in issue on this appeal: the first is the requirement that counsel be available to represent the client within a reasonable period of time and the second is the requirement that counsel be free of any disqualifying conflict of interest.

[45] In my view, this reasoning provides an answer to some of the Crown’s arguments in this case, particularly the argument that GM has retained Ottawa-based counsel (who presumably would be able to travel to Pembroke for the trial) in the past and had good results, and there are local counsel who are more than competent to conduct the trial. While to an objective observer, those arguments may be sound ones, McCallen makes it clear that it is the accused’s “subjective choice” that is important, it is the accused’s “personal decision” and the “spectre of state interference” should be avoided.

[46] As set out above, however, the right is not absolute.

[47] It was clear from the argument before me that GM was attempting to make regular payments to his lawyer towards his retainer. The Application was brought on the basis that he would have to pay less if the Application were granted and the trial were conducted remotely. If GM is not able to fully retain his lawyer in time for trial, the Court should not be required to conduct the trial in a manner that, in my view, is fraught with potential difficulties. Thus, the solution is not to have GM proceed without counsel. The solution is to grant GM an adjournment so that he has more time to fully engage his lawyer of choice so that she may attend in Pembroke and complete the trial.

The Seriousness of the Charges

[48] In Haaima, at paragraph 34, I expressed the view that “[g]enerally speaking, the more serious the offence, the more rigorous the Court should be in insisting that the proceedings take place in person.” That continues to be my view.

[49] I was not provided with a synopsis or summary of the allegations in the Application Materials. The accused is charged with three serious criminal offences and the Crown has proceeded by Indictment. The case has been pretried by another judge who authorized seven days for trial. All of this suggests to me that this is a very serious matter, which pulls strongly in favour of the trial being conducted in person.

Other Factors

[50] No other factor was drawn to my attention that would favour proceeding one way or another.

Conclusion

[51] For these reasons the Application is dismissed.

Released: April 22, 2024 Signed: Justice J.R. Richardson