COURT FILE NO.: CNJ Misc. 101233 DATE: 2021-03-16 ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – JAMIE CHRISTOPHER JEFFERIES Applicant
Counsel: Vlatko Karadzic, Counsel for the Respondent Brennan Smart, Counsel for the Applicant
HEARD: March 15, 2021
The HonouRABLe Mr. Justice C. S. glithero
RULLING: application for prohibition order and order to quash
[1] There are two notices of application before the court. The first application seeks:
An order in the nature of prohibition to prohibit any judge of the Ontario Court of Justice from proceeding to hold the trial of the accused upon the counts of aggravated assault, assault causing bodily harm, common assault, two counts of mischief and three counts of breach release order, contained in Information No. 19005445, sworn June 20, 2019, presently outstanding in that court.
The second application seeks:
An order to quash the ruling of the Honourable Justice A.T. McKay to conduct the trial of R. v. Jamie Jefferies remotely via video conference released on February 18, 2021.
[2] The grounds pleaded in support of both applications are the same, as follows:
There is no jurisdiction to order a trial of the accused to proceed remotely via video conference without the consent of the accused:
There is no jurisdiction for the Court to order a complainant to appear and testify remotely without an application from the Prosecutor or from the complainant.
[3] The information charging Mr. Jefferies contains eight counts. The first six involve offences alleged to have been committed on November 22, 2018 and include an allegation of aggravated assault by endangering life, assault causing bodily harm, mischief by willful damage and three counts of breach of undertaking.
[4] The other two counts allege common assault and mischief by willful damage with offence dates of October 11, 2018. The three counts of assault allege the same female victim, and the two counts of mischief by willful damage relate to property owned by the same female victim. The applicant is not in custody.
[5] The trial commenced with a s. 276 application which was heard on February 3, 4 and 21, 2020, and followed by a ruling on February 28, 2020. Trial dates were then set for May 5-7, 2020, but those dates were vacated by reason of the COVID-19 pandemic. On October 15, 2020, new trial dates were set for February 24, 25, 26 and March 2, 2021.
[6] The trial judge caused the matter to be brought forward and spoken to on the record on February 12, 2021 so as to hear submissions on “whether His Honour will make an order that the trial proceed remotely pursuant to ss. 714.1 and 715.23 - 715.26 of the Criminal Code”.
[7] On that date, trial counsel for the applicant made it very clear that the applicant did not consent to a virtual trial and wanted his day in court, and in particular, the opportunity to have the complainant testify in person at trial. Crown counsel advised that by reason of personal circumstances he would not be able to conduct a trial in the courtroom and that it had been determined that another Crown could not be made available for the scheduled trial dates commencing February 24th. Crown counsel advised that accordingly, if the matter was to proceed in person in court, the Crown would be asking for an adjournment, and if granted, would be taking the position that for purposes of s. 11(b) of the *Charter*, the delay between the scheduled trial dates and any new ones set would be a defence delay. Trial defence counsel did not agree to waive 11(b) and made it clear that a claim that any delay was a defence delay would be contested.
[8] During the submissions, the trial judge advised that he too would be unable to conduct an in-court trial by reason of his personal circumstances. The discussions as between the court and counsel indicated that the Crown would be calling an expert. The defence did not advance a position with respect to whether the expert’s evidence should be taken virtually or in person. Also, during the submissions, Mr. Karadzic advised the court that the complainant “was comfortable with attending in-court and was eager to proceed”. The trial judge reserved his decision. Written reasons were received by counsel on February 18, 2021.
The Impugned Decision
[9] In those reasons the trial judge made reference to three cases where the accused had consented to a remote proceeding. Here, the applicant did not. The trial judge also referred to a case where an accused sought to reverse an earlier consent to proceed virtually and was denied. Lastly, the court made reference to R. v. Patriquin, 2021 ONSC 359 where an accused objected to a virtual sentencing hearing with the result that the judge and the Crown appeared remotely and the accused and his counsel were to be in the courtroom.
[10] The result of the ruling by the trial judge is that he, the Crown, the expert witness and the complainant will participate in the trial virtually. The accused and his counsel will be in the courtroom.
[11] As to the Crown, he ruled that the Crown’s personal circumstances and an assessment of the criteria in s. 715.25 justifies the Crown appearing by video conference. There was no express consideration of the six enumerated factors, but certainly the trial judge made reference to the accused’s right to a fair trial and the nature and seriousness of the charges, but primarily that order went by reason of the inability of the Crown to participate in person because of personal circumstances. These were not explained, nor need they have been, as the Crown is an officer of the court. It seems likely that such circumstances are in some way resulting from the pandemic.
[12] As to his own involvement in the trial, no specific reference is made to s. 715.26, or directly to any of the four factors named therein, but rather was based on his inability to participate in person by reason of personal circumstances, which again require no explanation and likely are in some way resulting from the pandemic.
[13] As to the expert witness, there is no reference to any section, but the order presumably relies upon s. 714.1. On the record before me, the expert is not identified either by name, nature or his or her expertise, nor as to the nature of his or her anticipated evidence. The analysis is that the trial judge can’t see any reason why the expert would have to appear in person, that the expert’s appearance by video conference would be efficient, would promote health and safety, and would not impact trial fairness.
[14] As to the nature of the participation by the complainant, the trial judge notes that there is no application by the Crown or the complainant to allow her to testify from outside of the courtroom. The trial judge refers to that provision because, if applicable, it results in a complainant testifying by video, apparently without raising issues of trial fairness, given that the constitutionality of that provision has been upheld. He then turns to s. 714.1 permitting him to order that the witness give evidence by video conference if he is of the view that it would be appropriate having regard to all the circumstances, which circumstances include the seven listed within the section. The trial judge concludes that s. 650(1.1) does not restrict the court’s ability to order video conference attendance pursuant to s. 714.1. The ruling notes that the charges are serious, that they relate to serious crimes of violence against the complainant, and the trial judge concludes it would not be appropriate for this complainant to testify in person in a courtroom where neither the Crown nor the presiding judge were present. He also concludes that the court would be in a better position to assess the evidence of the witness if she were to testify by video conference, having explained earlier that in his view the trier can better appreciate the evidence of a witness testifying by video than if the witness were to testify in court, wearing a mask, and separated from the trier by plexiglass. He concludes that such an order would not impact the fairness of the trial.
[15] As to the trial participation by the applicant, the trial judge concludes that his ability to order the applicant to participate by video conference is precluded by the opening phrase in s. 715.23(1) “Except as otherwise provided in this Act”, given that s. 650 requires that an accused be present in court during their trial unless the accused consents to participate remotely.
[16] As to the enumerated factor within 714.1(d), the suitability of the location from where the witness will give evidence, the trial judge gave directions to the Crown to outline to the court and the defence the particulars as to where the complainant will give evidence and indicated that any disagreements in that regard could be further addressed by the court.
The Positions of Counsel
[17] On behalf of the applicant, Mr. Smart makes an impassioned plea for a real trial, one in which the applicant can face his accuser in a courtroom. In answer to those who say that video conference presents the same opportunity, or even a better one, Mr. Smart submits that video appearance falls short of personal appearance in a courtroom in that it lacks the solemnity, the sense of importance, the sense of dignity, the sense of justice that attaches to proceedings in a courtroom. He contends that those characteristics of courtroom presence are meaningful and promote testimonial responsibility on the part of witnesses. Missing also is the ability to see the “body language” of the complainant and those interacting with her or observing her.
[18] While the ruling at para. 27 refers to the need to interpret legislation in a way so as to avoid producing absurd consequences, Mr. Smart contends that the ruling in this case leads to an absurd result, with he and his client alone in a courtroom, together with staff, and the other active participants in the trial located elsewhere.
[19] He submits that that result does not amount to a fair trial, a right to which his client is entitled.
[20] Mr. Karadzic contends that these applications are outside of the proper scope of the extraordinary remedies, including prohibition and orders to quash. He contends that the trial judge had jurisdiction to make the orders that he did and that if he erred in making those orders they were nevertheless within his jurisdiction and are reviewable by way of appeal rather that prerogative remedy.
[21] His position is that appellate court jurisprudence has made it clear that the scope of review by certiorari is available only where a lower court acts outside of its jurisdiction and that jurisdictional error has to do with the authority to determine an issue, not with the correctness of the determination made. As he puts it, courts of limited jurisdiction have the right to be wrong, at least subject to appellate correction.
[22] In terms of the nature of the participation by a witness, Mr. Karadzic points out that while s. 486.2(2) requires an application by the Crown, or by the witness, to permit remote testimony, s. 714.1 has no such requirement and accordingly, the decision to apply that section was within the jurisdiction of the trial judge.
[23] He further contends that in these circumstances, the decision made was appropriate.
Applicable Principles
[24] The legal principles applicable to these kinds of application have been made clear by several appellate courts.
[25] In R. v. Awashish, 2018 SCC 45, the court observed that in criminal law generally there are no interlocutory appeals and that the extraordinary remedies have narrow application.
[26] At para. 17 the court rejected the suggestion that certiorari would be available to parties to correct errors of law in the face of the record, and at para. 20 said instead that “certiorari in criminal proceedings is available to parties only for a jurisdictional error”. At para. 23 the court held that “in the criminal context, jurisdictional errors occur where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice”.
[27] In R. v. Russell, 2001 SCC 53, the court held that if the preliminary hearing judge had committed the accused to stand trial for first degree murder in the absence of any evidence as to one of the essential elements of that offence, it would be a jurisdictional error reviewable by certiorari. But the court found there that there was no error. At para. 19 the court held that “review on certiorari does not permit a review in court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be in excess of jurisdiction”.”
[28] In R. v. Vasarhelyi, 2011 ONCA 397 at para. 50 the court noted that mandamus and certiorari are extraordinary remedies “that issue out of the Superior Court for jurisdictional default or excess. Each is discretionary. Neither issues as of right.” And at para. 52 the court held “jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made”. And further on that “on subjects within its jurisdiction, if a court of limited jurisdiction misconstrues a statute or otherwise misdecides the law, the remedy to correct the legal error is an appeal from the final disposition, not an application for an order in lieu of the extraordinary remedies of mandamus or certiorari”.
Decision
[29] I am bound by these principles. With respect to the decisions to order that the Crown, the complainant, the expert and the trial judge himself, participate by video conference, the sections of the Criminal Code to which I have referred expressly confer jurisdiction to make those decision on this trial judge. He made his decisions, and whether they are right or wrong, they do not amount to jurisdictional error.
[30] As to the mode of participation by the applicant, the trial judge interpreted the law as urged upon him by the applicant holding that the power to order video conference participation by an accused person, as contained in s. 715.23, is subject to the in person requirement imposed by s. 650(1) unless the accused agrees to video conference participation as permitted by ss. 650(1.1).
[31] I have considered whether the impact of the ruling by the trial judge falls within the phrase “where a court acts in breach of the principles of natural justice” as found at para. 23 in Awashish and para. 19 in Russell. If the provisions permitting a trial judge to order a witness or a participant to participate in a trial by video conference could be argued to constitute “a breach of the principles of natural justice” by reason of amounting to a denial of the right to a fair trial or the right to make full answer and defence, they are violations created by act of parliament. If such be the case, they would be reviewable by constitutional challenge, rather than by extraordinary remedy.
[32] For these reasons the applications are dismissed.
[33] The removal of the proceedings from the Ontario Court of Justice by virtue of these applications means that there is at present no return date for this matter in that court. I order that this matter be returned to the Ontario Court of Justice and that the appellant appear virtually in courtroom 101 at 9:00 a.m. on Thursday, April 1, 2021.
[34] I am obliged to counsel for their able and succinct submissions.
Dated at Kitchener this 16th day of March, 2021.
