Court File and Parties
COURT FILE NO.: CR-18-1310 DATE: 2020 05 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN C. Nadler and A. Cornelius for the Crown
- and –
THULANI CHIZANGA and SHAMAR MEREDITH Applicants D. Sarikaya for Thulani Chizanga M. Macchia for Shamar Meredith
D.E HARRIS J.
Reasons for Judgment
[1] Counsel for Mr. Chizanga and Mr. Meredith, both convicted of second-degree murder by a jury, ask in this era of COVID-19 to be sentenced by remote means: video, audio or perhaps just written decision. There was a previous date for the imposition of sentence set for April 9, 2020 but the COVID-19 crisis intervened, and the matter was automatically adjourned sine die as a result of the Chief Justice’s endorsement putting over all current cases to June 4, 2020. The Crown agrees that the offenders be sentenced remotely.
[2] Sentencing submissions have already been heard. Counsel for Mr. Chizanga proposes that the sentencing date could be set for June or early July so that if the courts do reopen on July 6, 2020 as is the current plan, the imposition of sentence could be done in person. If not, it can be done remotely. That is the general approach that I believe should be followed. However, I would prefer to leave it so that if it becomes clear the courts will not reopen on July 6, 2020, proceeding to do the sentencing remotely can be discussed based on the circumstances present at that time.
[3] There was no question of jurisdiction raised in the request of the parties. However, there were a few other issues that arose. In arguing that a written decision, video or audio conference will be sufficient, counsel likened the imposition of sentence to the conduct of a bail review. The accused need not be present for a bail review; they need not be present for sentencing either. However, there is no equivalence between the two proceedings. The Criminal Code presumes that the accused need not privy to their own bail review either physically or remotely: see Sections 520(3) and 521(3). On the other hand, the Criminal Code presumes the necessity of the accused’s presence for sentencing: Section 650(1). The authorities make it clear that this is a constitutional imperative. Presence is an entirely different matter for trial than it is for a bail review.
[4] The requirement of physical presence mandated by subsection (1) of 650 is subject to the exceptions in ss. (1.1) and (1.2):
Accused to be present
650. (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.
Video links
(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 videoconference, for any part of the trial other than a part in which the evidence of a witness is taken.
Video links
(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel. [^1]
[5] The defence submitted that the accused need not waive their right to be physically present for the sentencing to be done remotely. That cannot be accepted. The accused\offender has both the right and obligation to be present by reason of ss. (1). In order to give up that procedural right and make available ss. 1.1, there must be a valid waiver: Korponay v. Canada (Attorney General), 1982 SCC 12, at paras. 13-16. In this connection, Justice Monahan recently held that waiver of physical presence is required under Section 650(1.1): see R. v. Daley, 2020 ONCJ 201, at para. 20. I do not think there can be any doubt about it. The waiver need not be formal and can be communicated through counsel after the matter is explained and fully understood by their clients.
[6] Furthermore, it was important that the victim’s family be notified and be invited to watch or listen if the sentencing was not to be done in court. There was some question whether this had been done when all parties agreed to the out-of-court sentencing procedure. The Crown and the court have important obligations in this regard. The family must have access to the audio or video feed. It would be a clear breach of the Victims Bill of Rights, 1995 S.O. 1995, c. 6, s. 1 not to ensure that this occurs. This follows from Section 2(xi) of the Victims Bill of Rights, 1995 which requires that the victim must have access to information about the sentencing. The necessary implication is that victims have the right to be present in a meaningful way for the imposition of sentence. In this case and in the young person’s trial before it, the victim’s mother has shown a keen interest in the court proceedings. The victim impact statement she gave in these two proceedings left no doubt about the importance of the sentencing process to her. Care must be taken to ensure her and other family members’ interests are protected and respected.
[7] In determining the issue of remote sentencing, a balance must be struck between competing interests. The public interest in having the imposition of sentence in a courtroom with the offenders and all interested physically present is strong. Sentencing is part of the trial: R. v. Petrovic, at p. 426; R. v. Hertrich, at para. 50, leave refused [1982] S.C.C.A. No. 124; R. v. Lessard. In this case, the murder of a young man was committed in broad daylight with a semi-automatic assault rifle in a public place, a Popeyes fast food restaurant, in which patrons sat eating their food. The context of the most serious offence in our law together with the circumstances of the crime militate powerfully towards imposing sentence in court if reasonably possible.
[8] Presence is a fundamental requirement of a criminal trial. It serves both individual purposes and the broader public interest, including the interest of the victims: R. v. Barrow, 1987 SCC 11, at paras. 40, 44; R. v. Czuczman, at para. 8; R. v. Tran, 1994 SCC 56, at pp. 973-974; Application To Proceed in Camera, Re, 2007 SCC 43, at paras 31-34.
[9] The accused can waive their right to be present but the larger concern here is the matter of the public interest. Justice A. Campbell aptly described one aspect of the public interest in physical presence in R. v. Fecteau a case in which the appellant pled guilty and was sentenced over video while incarcerated:
27 There is another element involved here, and that is the human element in the sentencing process. It is one thing for a judge to sentence to imprisonment a live human being who stands physically before the judge in open court. The judge, before imposing a term of imprisonment, at least has to look the accused in the eye. It may be quite another thing to sentence to imprisonment a disembodied television image that appears on a screen on the judge’s dias. While the sentencing process has many faults, one of its strengths is that it is at least a human process. It does not add to the human strength of the sentencing process to turn it into a disembodied electronic exercise.
[10] Also see R. v. Gibbs, 2018 NLCA 26, at para. 80 per Green J.A. concurring.
[11] Counsel for Mr. Chizanga argues that this matter is urgent and should for this reason be heard remotely. He points to the mistrial ruling which held that if there was an error in the jury selection process, it was for the Court of Appeal to remedy it: R. v. Chizanga and Meredith, 2020 ONSC 2749. It is said by counsel, “The offender cannot begin the appeal process until he is sentenced.”
[12] I do not agree. This matter is not urgent. The conviction appeal process exists quite independent of sentencing. Now that the accused have been convicted, funding for the appeal from conviction can be secured, the notice of appeal can be filed, transcripts can be ordered, appeal books prepared, factums written, and efforts made to attempt to have the matter listed for hearing. Progress may of course be delayed because of present conditions. But the fact the offenders have not been sentenced is not an obstacle to the appeal process being initiated and advancing forward.
[13] No other reason aside from urgency was put forward to justify imposing sentence immediately. However, despite the matter not being urgent in any ordinary meaning of the word, it is true that there is a substantial interest in finality which must be considered. Finality requires that the last step in the criminal trial process, the imposition of sentence, ought not to drag along indefinitely: R. v. Charley, 2019 ONCA 726. In my view, the defence proposal is a good compromise. The imposition of sentencing should be done in-person in early July if the courts reopen. This delay is not inordinate. If it becomes clear the courts will not re-open at that time, the issue of imposing sentence remotely will have to be revisited. At that stage, it may well be that the balance will tip towards finality and away from the general rule of physical presence. But we are not there yet.
[14] I am aware that teleconferencing and audioconferencing have been utilized for many different aspects of criminal trials during COVID-19: see e.g. R. v. Hass, 2020 ONSC 2010. That will likely expand, as it should, in the future. It is important that the justice system continue to operate so the weight of unresolved cases does not become crushing. However, in all the circumstances, the strong preference towards imposing sentence in court for this, the most serious offence in the Criminal Code, ought to prevail for the meantime if it can be done reasonably promptly.
[15] Once it is clear in the next several weeks whether the courts will re-open on July 6, 2020 or not, next steps can be taken. If the re-opening will take place, a date for the hearing can be set promptly. On the other hand, if it becomes clear the courts will not re-open then, I invite counsel to readdress this matter.
“original signed by”
D.E HARRIS J.
Released: May 15, 2020
Footnotes
[^1]: Subsection 1.2 is not at issue in this proceeding.
