ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4999 998 10 01933G
DATE: 20120329

B E T W E E N:

HER MAJESTY THE QUEEN

C. Zary and M. Cullen, for the Federal Crown

• and -

DOREEN TENNINA

No one appearing

HEARD: March 27, 2012

RULING

GILMORE J.

OVERVIEW

[ 1 ] The Crown brings an application pursuant to sections 475 and 598 of the Criminal Code . In brief, the Crown seeks a ruling that the trial in this matter has commenced and that the accused has absconded. The Crown seeks to conduct the trial of the accused in her absence.

[ 2 ] On March 27, 2012, the court heard evidence from Kevin Smith of York Regional Police and Hilary Cummings from Canada Revenue Agency with respect to the whereabouts of the accused in this matter.

[ 3 ] The matter was then adjourned to April 2, 2012 for a ruling on the Crown’s application and to determine the future direction of this case.

BACKGROUND

[ 4 ] The accused was charged in November 2008 with two counts of fraud over $5,000.00. The alleged fraud relates to the accused submitting false carrying charges and charitable donation amounts and receipts with income tax returns that she prepared for her clients. This resulted in the lowering of taxes owed by her clients and the Government of Canada paying out refund amounts to which the accused’s clients were not entitled. Over 4,235 tax returns were involved with an understated tax liability of over $10 million. The second fraud charge relates to the unreported income of the accused’s company resulting in evasion of $636,000.00 in income taxes.

[ 5 ] After a preliminary inquiry, the accused was committed to trial on December 14, 2010. Dates for the pre-trial motions and trial were set on June 7, 2011 with pre-trial motions to commence February 6, 2012 and the trial on March 19, 2012. Pre-trial motions did not commence on February 6, 2012 due to the accused’s illness. They commenced on February 27, 2012.

[ 6 ] On March 1, 2012, the court orally dismissed the Respondent’s Charter motions and provided the accused with materials and information with respect to conducting a jury trial as a self-represented accused. The matter was returned on March 9, 2012 to allow the Respondent time to digest the written materials and answer any questions that she may have had with respect to that information. Further information was also provided to the accused, in particular, a guide for the accused to assist her in the mechanics of selecting a jury. The accused was present when the court ordered the matter to return on March 19, 2012. All parties were to have their witnesses present on that date so that they could be bound over. Jury selection was set for March 20, 2012.

[ 7 ] Resolution discussions were held with Boswell J. in this matter on March 16, 2012 at 9:30 a.m. Boswell, J. confirmed the requirement of the accused’s presence on March 19, 2012. The accused was present on March 16, 2012.

[ 8 ] On March 19, 2012, witnesses attended as summonsed and were bound over as required. The accused, however, did not appear on March 19, 2012. At that time, a warrant for her arrest was issued pursuant to section 597 of the Criminal Code . All parties were requested to return on March 20, 2012 for jury selection. On March 20, 2012, the jury panel was present but the accused was not. The matter was put over to March 27, 2012 to allow the authorities time to apprehend the accused.

[ 9 ] On March 27, 2012, the jury panel was again present but the accused did not appear. The jury panel was dismissed. The Crown filed the within Application seeking a finding that the accused had absconded and that the trial had commenced, and further that the trial should proceed in the absence of the accused without a jury pursuant to section 475(1)(i) and section 598 of the Code .

[ 10 ] The Crown sent notice of this application to the accused at her last known email address on March 23, 2012. No response has been received.

EVIDENCE ON THE APPLICATION

[ 11 ] The Crown provided the Affidavit Carole Cushnie and Hilary Cummings. The Crown called Constable Kevin Smith of York Regional Police and Ms. Cummings as witnesses on the Application.

[ 12 ] Constable Smith indicated that he learned of the warrant against the accused on March 22, 2012. He attended at her residence at B[…] Drive, unit 26 in Vaughan at 7:53 a.m. on March 22, 2012 with Constable Woodland. When he attended at the accused’s residence, her boyfriend answered the door and confirmed that the accused indeed lived at that address but had left to an unknown location several days before. The accused’s boyfriend responded that he also lived at the B[…] Drive address. He was unsure of the date of the accused’s departure but thought it was either March 18 th or 19 th . The police did not have a warrant and therefore were not able to do a full search of the home, but were able to see a good portion of the residence upon entry as it was an open concept. There did not appear to be any evidence of the accused’s presence.

[ 13 ] Constable Smith reported that there was a vehicle parked in the driveway which belonged to the accused’s boyfriend. He advised there was also a vehicle in the garage that belonged to the accused but the police were not entitled access to the garage.

[ 14 ] Constable Smith and Constable Woodland attended at the accused’s residence address again on March 26, 2012 and saw the same vehicle in the driveway. The accused was not present.

[ 15 ] Ms. Cummings confirmed her Affidavit and advised that on March 21, 2012, she had a co-worker attempt to reach the accused at her phone number on file. There was a message that the number was no longer in use. Ms. Cummings also requested that Canada Border Services be contacted with respect to flagging the accused’s passport on entry to Canada. Her Affidavit outlined that they had received information that the accused had returned to Canada by car from the U.S. on June 19, 2011 and by air on five separate dates between 2008 and 2010. It is not possible to flag a passport on leaving Canada. As such, the accused’s re-entry into Canada would be flagged such that she could be apprehended if she has left the country.

[ 16 ] Ms. Cummings also contacted York Regional Police who confirmed that they had the warrant and it had been registered on CPIC and that they would action it as soon as possible. Ms. Cummings spoke with Constable Woodland who advised her that she and Constable Smith had been to the accused’s residence and spoken to her boyfriend who had not seen her since March 16, 2012. Ms. Cummings advised that Constable Woodland told her that the accused’s boyfriend had received a call from the accused sometime after March 16, 2012 advising him that she could not afford a lawyer.

[ 17 ] Ms. Cummings conducted searches and confirmed that the accused’s home was not for sale and that the home was registered in the name of her boyfriend and daughter and had not been transferred.

[ 18 ] Ms. Cummings also stated that the accused’s passport had been forfeited on her arrest but returned to her in March 2009 on a bail review.

Issue 1 – Has the accused absconded?

[ 19 ] Whether or not an accused has absconded is a finding of fact to be made by the trial judge. As per R. v. Garofoli , (1988), 1988 3270 (ON CA) , 41 C.C.C. (3d) 97 (Ont. C.A.) at 36, the court described absconding as more than a mere failure to appear but as a deliberate action on the part of the accused to absent himself from the trial and impede its continuance. The court said:

In my view, the word “absconds” imports that the accused has voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences.

[ 20 ] The Crown points out that Garofoli also confirms that the evidence of negative results of inquiries is not regarded as hearsay [1] .

Issue 2 – Did the absconding occur “during the course of the trial”?

[ 21 ] In the case at bar, a jury was never selected nor was the accused arraigned. The question arose as to whether or not the trial had commenced where the accused had not entered her plea. The Crown submits that the date of commencement of trial depends on the Criminal Code provision being applied. The Crown submits that once the trial judge has been assigned, the indictment is preferred and the trial judge has authority over the proceedings. The authority upon which the Crown relies for this proposition is R. v. Litchfield [2] .

[ 22 ] It is clear pursuant to section 645(5) of the Code that a trial judge can deal with matters concerning the indictment prior to the selection and calling of a jury. Even in judge alone trials, it is open to the trial judge to hear pre-trial motions before preparing to hear evidence. The judge hearing an application would either have to be assigned as the trial judge or seized of the trial upon the preferring of the indictment. Thus, the Crown argues that as the assigned trial judge, I heard pre-trial motions based on an indictment that had been lodged against the accused and the rulings on that indictment which were binding on the accused.

[ 23 ] For example, the accused’s applications requested a stay by way of remedy. It would seem unusual that such a remedy could be imposed by a judge where the trial has not begun. As such, the Crown argues that the trial began on February 6, 2012 when the accused’s pre-trial motions were scheduled to commence.

Issue 3 – Has the Respondent waived her election to be tried by a court composed of a judge and jury?

[ 24 ] Section 598 of the Criminal Code stipulates that an accused who fails to appear or remain in attendance for his trial will be deemed to waive his election to have his trial heard before a court composed of a judge and jury unless he establishes to the satisfaction of the trial judge that there was a legitimate excuse for his failure to appear or remain in attendance.

[ 25 ] The Crown argues that not only has the accused absconded but that she has failed to provide any legitimate excuse for her failure to appear at trial and should therefore be deemed to have waived her election to have her trial before a court composed of a judge and jury.

RULINGS ON ISSUES 1 THROUGH 3

[ 26 ] There is no doubt that the accused in this case has absconded. On every other occasion prior to March 19, 2012, the accused attended as required and if she did not attend, had either counsel or an agent attend on her behalf. For example, even on February 6, 2012, when she was ill, she arranged for an agent to attend with a doctor’s letter. The history of this file shows an accused who was diligent and conscientious with respect to her court attendances prior to March 19, 2012.

[ 27 ] The first time the accused did not attend for court was March 19, 2012 when witnesses were to appear to be bound over and the accused’s attendance was required to confirm that she would be ready to select a jury on the following day.

[ 28 ] The accused’s non-attendance in this matter is not merely a failure to diarize dates or as a result of any confusion. The accused has always known that her trial would commence on March 19, 2012. This was known to her as early as June 2011 when the dates for the pre-trial motions and her trial date were set. The requirement of her attendance on March 19, 2012 was confirmed again by this court on March 9 and March 16, 2012. The accused was present in person on both of those dates.

[ 29 ] Therefore, I find that the accused has absconded pursuant to section 475(1) of the Criminal Code of Canada .

[ 30 ] Because the accused was never arraigned nor the jury selected in this matter, the question remains as to whether or not the trial commenced and whether she therefore absconded “during the course of the trial”.

[ 31 ] While it is obvious that in most cases a trial commences upon the arraignment of the accused and the entry of his or her plea, case law is not confirmatory that a trial always commences at that point in time. In the case at bar, the accused brought three substantial pre-trial applications. Her Rowbotham application for state funding during the trial was abandoned prior to being heard but her Stinchcombe application and her application for a stay based on delay pursuant to section 11(b) of the Charter were fully heard by the court and argued by counsel retained by the accused for that purpose. The applications were considered by this court and dismissed with oral reasons.

[ 32 ] Had either of the accused’s applications been granted, the matter would have been stayed. I find that where the court has such remedies at its disposal and the indictment has been lodged against the accused, there can be no doubt that, pursuant to Litchfield, the trial has commenced. As such, I find that the trial in this matter commenced on February 6, 2012 when the accused’s pre-trial applications were scheduled to be heard.

[ 33 ] With respect to section 598 of the Code , I find that the accused’s election to have her trial heard by a court composed of a judge and jury has been waived as she has failed to establish any legitimate excuse for her failure to appear. I rely on the evidence in support of the finding that the accused has absconded which in my view is a far higher standard than establishing a legitimate excuse for failure to appear.

Final Issue - Is it in the interests of justice to continue the trial in the accused’s absence?

[ 34 ] The Crown argues that the matter should proceed in the accused’s absence. The trial estimate is three to four weeks without a jury and without the accused being present. In the circumstances, I do not find that it is in the interests of justice to proceed in the accused’s absence.

[ 35 ] The bench warrant was only recently issued March 19, 2012. The evidence on the application showed that although some efforts have been made to locate the accused, the matter bears further investigation and follow up. More efforts should be made to locate the accused before a final determination is made with respect to whether it is no longer in the interests of justice to await the appearance of the accused.

[ 36 ] As such the Crown’s application to have the trial proceed in the absence of the accused is adjourned to April 30, 2012 at 9:30 a.m. for an update on the efforts of the authorities to locate the accused and to be spoken to. The April 2, 2012 date is hereby vacated.

[ 37 ] The courtroom video equipment and monitors installed by the Crown should be removed pending a decision as to the status of this matter.

[ 38 ] The Crown to forward a copy of this decision to the accused at her last known mailing and e-mail address.

Justice C.A. Gilmore

Released: March 29, 2012

[1] Ibid at page 38.

[2] 1993 44 (SCC) , [1993] 4 S.C.R. 333 at pages 15-17.