Court File and Parties
COURT FILE NO.: CR-18-037-00 (Kingston)
DATE: 20200616
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Kristopher Vaughan
BEFORE: Mr. Justice Graeme Mew
COUNSEL: Greg Skerkowski, for the Crown (respondent) Brian Callender, for the Defendant (applicant)
HEARD: 11 June 2020, at Kingston (by telephone conference)
ENDORSEMENT
[1] The ongoing public health concerns due to COVID-19 have presented our justice system with many new challenges. Among these have been how to approach custody-related decisions. For example, it has been held to fall within the accepted bounds of judicial notice for courts, in relation to sentencing or interim release issues, to take into account the fact of the COVID-19 pandemic, its general impact, and the current state of medical knowledge of the virus, including its mode of transmission and the methods recommended to avoid its transmission: R. v. Morgan, 2020 ONCA 279, at para. 8.
[2] On 15 November 2019, the applicant was convicted on one charge of sexual assault. A sentencing hearing took place on 4 March 2020. The sentencing decision was reserved until 5 May 2020, but that hearing was adjourned as a result of Chief Justice Morawetz’s omnibus order adjourning many previously scheduled hearings due to the public health emergency.
[3] The applicant is presently subject to an order permitting his judicial interim release. At the sentencing hearing it was, however, conceded on the applicant’s behalf that he should receive a custodial sentence in a provincial correctional institution. A conditional sentence is unavailable because of the nature of the offence he committed.
[4] The applicant now seeks an order pursuant to section 523(2)(c) of the Criminal Code vacating his interim release and requiring his detention until his trial is completed. He also asks for his sentence to be handed down as soon as possible.
[5] At first blush, this seems like an unusual request.
[6] The applicant, however, wants to start – and finish – serving his sentence sooner rather than later. This despite not yet knowing how long that sentence will be.
[7] The reasons given are cogent. The applicant has principal parenting responsibilities for his 15-year-old daughter. He has taken the time during recent weeks to, as he puts it, “set her up for success” while he is “away” and feels that the sooner he completes his sentence, the sooner he can return to support and parent her. He has also twice put off enrolling in college or university in anticipation of being incarcerated. In short, he is asking that his sentencing be delivered as expeditiously as possible. He wants to put this chapter in his life behind him, get on with his life, once again be a contributing member of society, and, in particular, focus on raising his daughter.
[8] Section 523(2)(c) permits a judge before whom an accused is being tried, at any time, with the consent, or upon the application of the prosecutor or the accused, on cause being shown, to vacate a previous order for interim release and to make any other order provided for in part XVI of the Code for the detention of the accused until the trial is completed.
[9] Subject to the logistical implications that arise from the relief sought, the Crown agrees that there is no reason not to make the order requested.
[10] Because of COVID-19 measures presently in place, no in-court hearings are taking place. As a result, the usual practice of an accused being present in a courtroom and stepping into custody following the pronouncement of a custodial sentence cannot be followed. Hence the request by the applicant for an order terminating his interim release. It is proposed that upon such an order being made, Mr. Vaughan would immediately surrender himself into custody at his local police station. The Crown and defence both agree that the sentencing decision could then be handed down a few days later by video or telephone means, depending on the facilities that are available at the establishment that Mr. Vaughan is housed at.
[11] Just as it is open to the court, by way of judicial notice, to be cognisant of the fact of the COVID-19 pandemic, the parties before the court may be similarly informed. An information note prepared by the Ministry of the Solicitor General dated 21 May 2020 was presented during the hearing of the application. It provides an overview of the current status of the occurrence and resolution of positive results in all provincial adult correctional institutions, the healthcare policies and procedures, and the actions taken to stop the transmission of the COVID-19 virus. Mr. Vaughan therefore makes his application in full knowledge of the information provided by the Ministry.
[12] I am satisfied that cause has been shown for the relief sought. Depending on the course that the public health measures resulting from the pandemic take, it could be many months before his sentence can be pronounced in court. Not only Mr. Vaughan, but also the victim of his crime, will be forced to wait. Consequently, if Mr. Vaughan wishes to voluntarily relinquish his liberty at this time so that he can receive his sentence, I see no cogent reason not to enable him to do so.
[13] I therefore order that the existing order for Mr. Vaughan’s interim release is vacated. He shall immediately surrender into the custody of the Nottawasaga detachment of the Ontario Provincial Police or otherwise be detained pending further order of this court, or the completion of his trial, whichever occurs first.
[14] Mr. Vaughan’s next appearance will be on Thursday 25th June 2020 at 10:30 a.m. for sentencing. That appearance, and the precise time it will actually take place, will be by either videoconference or telephone conference hearing, depending on what facilities are available.
Graeme Mew J.
Date: 16 June 2020