COURT FILE NO.: CR-19-10000214
DATE: 20201229
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TENZIN TSEPEL
Brigid McCallum, for the Crown, Respondent
Michael Fairney, for the Applicant
HEARD: December 29, 2020
HIMEL J.
REASONS ON APPLICATION FOR ADJOURNMENT OF TRIAL
[1] Tenzin Tsepel applies for an order vacating the trial date of January 4, 2021 and adjourning the trial to a later date when he can be provided with an in-person trial. Crown counsel opposes the adjournment request. As a result of the COVID-19 health crisis, Chief Justice Morawetz has ordered that certain urgent matters affecting the liberty of the person may be heard by conference call and Zoom. Counsel and Mr. Tsepel are participating in this adjournment application by Zoom.
[2] The following are my reasons for decision.
FACTUAL BACKGROUND
[3] Mr. Tsepel is charged with the offences of robbery with a firearm contrary to s. 344(1)(a) of the Criminal Code, having his face masked with intent to commit an indictable offence contrary to s. 351(2) of the Code, two counts of unlawful confinement contrary to s. 279(2) of the Code, and use a firearm to commit an indictable offence contrary to s. 85(1) of the Code. The offences are alleged to have taken place on April 12, 2017. Mr. Tsepel elected to be tried by a judge and jury. Following a three-day preliminary hearing, he was committed for trial and attended court in the Superior Court of Justice on April 4, 2019. The matter was adjourned to April 29, 2019 for a judicial pre-trial conference following which, the parties set a date for a ten-day trial on April 20, 2020 before a judge and jury.
[4] Because of the COVID-19 pandemic, the trial could not proceed on April 20, 2020 and the case was adjourned to June 3, 2020, then to June 4, 2020 and finally to July 6, 2020 at which time a date was set for a trial of five to seven days to commence on January 4, 2021. Because of a further Notice to the Profession issued by Chief Justice Morawetz, no jury trials can take place until at least February 1, 2021. The parties had a further judicial pre-trial and counsel agreed to a re-election to a judge alone in-person trial.
[5] On December 22, 2020, Chief Justice Morawetz issued a Notice to the Profession and Public Regarding Court Proceedings in which he stated that, while the Ontario Superior Court of Justice remains open during the provincial lockdown (which became effective on December 26, 2020), effective December 29, 2020, “all (non-jury) matters should proceed virtually unless it is absolutely necessary to hold the proceedings in person.” He went on to state that, “Counsel and parties should only request in-person hearings where absolutely necessary and I have requested all judicial officers, when exercising their authority, to only hold in-person hearings where absolutely necessary.”
[6] As a result of the Notice to the Profession, counsel were contacted by the Trial Co-ordinator and asked whether they would be prepared to conduct the trial set for January 4, 2021 by Zoom. Crown counsel agreed to this manner and has prepared her witnesses to be available in various in locations in order to give their testimony. Defence counsel opposes the virtual trial and asks that the trial be held in person. As I had been assigned to be the trial judge, I asked that a conference call be arranged immediately with counsel and with Mr. Tsepel present to determine the reason for the request for an in-person trial so that I may decide whether it was “absolutely necessary”.
[7] During the conference call with the parties, I learned that Mr. Fairney was seeking an adjournment of the trial on behalf of Mr. Tsepel. I concluded the conference call and asked that counsel bring an application before me on the record during a Zoom proceeding and this was scheduled for December 29, 2020. Mr. Fairney filed a Notice of Application for Adjournment supported by an affidavit sworn by his legal assistant.
[8] The application for adjournment outlines the reasons why the defence opposes proceeding with a virtual trial on January 4, 2021. In summary, they are:
the applicant wishes to have a trial in person and the directives of Chief Justice Morawetz make that “next to impossible”;
that a remote trial is prejudicial to the defence; and
that the applicant is willing to waive his s. 11(b) rights under the Canadian Charter of Rights and Freedoms.
[9] In the affidavit filed in support of the adjournment request, counsel outlines the following circumstances: (1) that a trial had been set for April 20, 2020 but was cancelled due to COVID-19 shutdown of the courts; (2) a further pre-trial was set and counsel was informed that a jury trial going forward was not possible; (3) that counsel agreed to a judge alone trial and set a date for January 4, 2021 on the basis that it would be held in person; (4) that the Chief Justice has ordered that in-person trials be held in exceptional circumstances only; (5) that the Province of Ontario has delayed the opening of schools until January 11, 2021 and that counsel is in a difficult unexpected situation regarding child care and a video trial would be “very difficult”; (7) that problems would be solved by an adjournment until when in-person trials are allowed or when counsel’s child is in school; (8) that the applicant lives in a one bedroom accommodation with his mother and brother so a remote video trial would be difficult; (9) the applicant may be facing an unlawfully at large charge and may be required to go into custody where there is currently an outbreak. The applicant will want to apply for bail and it is not clear that a video terminal would be available to him; (10) that the COVID-19 situation will improve with vaccines and that an adjournment to a later date would put all parties in a better position for an in-person trial; and (11) that Mr. Tsepel is willing to waive s. 11(b) of the Charter. At this hearing of the application for adjournment today, counsel reiterated these reasons for the adjournment request.
[10] Crown counsel opposes the application for adjournment and advises the court that her witnesses are ready to proceed on a virtual basis commencing on January 4, 2021. She submits that a Zoom trial is an effective way to deal with the current issues facing the judicial system during the pandemic.
DECISION
[11] A decision regarding whether to grant an adjournment is a discretionary matter for the trial judge. The judge is to give appropriate weight to all relevant circumstances and to balance a number of factors.
[12] In the circumstances of this case, I consider the following:
The COVID 19 pandemic has affected the entire world and all aspects of society. In the Province of Ontario, the courts have made great efforts to continue to provide access to justice in a responsible manner by utilizing remote virtual hearings where at all possible in order to ensure the health and safety of all involved. The Chief Justice of the Superior Court of Justice issued notices last fall to dispense with jury trials and that has been extended until at least February 1, 2021. Because of the second wave of the pandemic, the Province of Ontario has issued a lockdown effective December 26, 2020 and the Chief Justice has issued a Notice to the Profession outlining that the courts remain open during the lockdown but that hearings are to be held remotely and that in-person hearings are to be heard only where “absolutely necessary.”
The date of the alleged offences is April 17, 2017 which is more than three years ago. Crown witnesses have been prepared for trial and are able to testify remotely. These witnesses would be inconvenienced by an adjournment.
While the first trial date of this matter was adjourned on April 10, 2020, that was because of the COVID-19 pandemic and not because of the applicant’s actions.
The applicant had elected to have a jury trial which is not possible at this time but was prepared to re-elect if he could have an in-person trial before a judge alone. He is prepared to do so today if the adjournment is granted.
Counsel for the applicant has advised that he has child care issues and having a remote trial would be very difficult for him. Further, the applicant lives in a one bedroom accommodation with his mother and brother and a remote trial would be very difficult for him.
The applicant is currently out of custody. However, defence counsel advises that his client may be required to go into custody because of an unlawfully at large charge and that there is currently an outbreak of COVID-19 cases in the jails. He also says that it is not clear whether a video terminal would be available for him. Crown counsel had advised during the telephone conference that having Mr. Tsepel participate in his trial by video conferencing would be arranged.
The applicant is willing to waive his s. 11(b) rights.
[13] I also consider that Section 650(1) of the Criminal Code provides:
(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.
(1.1) 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 bvy counsel.
[14] I also note the following provisions of the Criminal Code which were enacted in 2019 and state:
s. 715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.
[15] Sections 715.22, 715.23 and 715.26 make provision for the appearance of persons including the accused to participate in court proceedings by audioconference or videoconference.
[16] In the past, the courts have considered the right to “a fair and public hearing” under s. 11(d) of the Charter and the “right to face one’s accuser”. For example, the Supreme Court of Canada held that the right to be present in court, to hear the case against him and to make full answer and defence is not violated by the use of a screen or closed circuit television for use by a complainant in a sexual assault case. These tools have been held not to restrict or impair an accused’s ability to cross-examine the complainant: see R. v. Levogiannis [1993] 4 S.C.R. 415; see also R. v. J.Z.S. 2010 SCC 1, [2010] 1 SCR 3, aff’g 2008 BCCA 401.
[17] Similarly in R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, the Supreme Court considered whether an accused’s right to a fair trial is modified by the right of a woman testifying wearing her niqab and the majority held that there must be a balance between freedom of religion and trial fairness including the right to make full answer and defence and set up a test to determine whether the court should order the complainant to remove her niqab when testifying.
[18] The new provisions of the Criminal Code under s. 715 mentioned above recognize the technological advancements that have taken place in society and attempt to balance the right to a fair trial with the need to maintain an efficient and accessible justice system. I am not aware of jurisprudence which addresses whether the consent of an accused person to a remote trial is required under these provisions. A similar issue was considered in the case of Woods v. Ontario 2020 ONSC 6899 where the court held that the consent of the person whose case was before the Ontario Review Board to a virtual hearing during the pandemic was required under the statute. However, that scenario is different than the provisions under the Criminal Code.
[19] In considering all of the circumstances, I am very mindful of the date of the alleged offences, and that there may be prejudice to the Crown witnesses who are prepared for trial and arrangements have been made for each of them to testify on a remote basis. On the other hand, I consider that the applicant has a right to a fair trial and that he has waived his right to a jury trial in order to accommodate the pandemic situation provided that he could have an in-person trial.
[20] In considering the right to a fair trial of the applicant, I note that this is his first adjournment request. He and his counsel maintain that having a remote trial would be difficult for each of them. He is prepared to waive his rights protected under s. 11(b) of the Charter. I am satisfied that his desire to be tried at an in-person hearing should prevail in the specific circumstances of this case where he maintains that his ability to defend the charges may be significantly compromised if the adjournment is refused and he is required to proceed virtually.
[21] These are exceptional times. A decision whether or not to grant the adjournment of this trial must be consistent with the interests of justice. There is certainly a state interest in bringing accused persons to trial in a timely manner. Section 11(d) of the Charter provides that a person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. In this case, I conclude that it is in the interests of justice that a fair and public hearing means an in-person hearing for this applicant for the reasons outlined above.
[22] The application for an adjournment of the trial is granted. The trial date of January 4, 2021 is vacated. Counsel will contact the Trial Co-ordinator forthwith to obtain a date in Practice Court in order to set a new date for trial.
Himel J.
Released: December 29, 2020
COURT FILE NO.: CR-19-10000214
DATE: 20201229
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TENZIN TSEPEL
REASONS ON APPLICATION FOR adjournment OF TRIAL
Himel J.
Released: December 29, 2020