Court File and Parties

COURT FILE NO.: 18-254 DATE: 20210115 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Her Majesty the Queen, Crown AND: Cooper Robert Patriquin, Defendant

BEFORE: Rady J.

COUNSEL: Konrad de Koning for the Crown Jenny Prosser for the Defendant

HEARD: January 5, 2021

Endorsement

[1] This matter is scheduled for sentencing submissions on January 8, 2021. On January 14, 2020, Mr. Patriquin pleaded guilty to robbery, use of an imitation weapon and wearing a mask in the commission of an indictable offence. He was convicted on the basis of an agreed Statement of Facts. As part of its submission, the defence has brought a constitutional challenge to the mandatory minimum sentence applicable in this case pursuant to s. 85(3) of the Criminal Code of Canada.

[2] A number of factors have delayed the sentencing hearing. These include:

1. the requirement for a Gladue report;

2. the intervening COVID-19 pandemic, its public health implications and its effect on court operations; and

3. the time requested by the defence to prepare its material challenging the mandatory minimum sentence.

[3] Last month, I directed that the sentencing hearing was to proceed remotely. The Crown was content. The defence wished an opportunity to seek instructions.

[4] In the meantime, given concerns due to sharply rising numbers of COVID-19 cases, the province ordered that the province return to lockdown until late January, at which time a decision about an extension will be made.

[5] As a result, the Chief Justice issued a Notice to the Profession and Public respecting court proceedings dated December 22, 2020. He directed that effective December 29, 2020, “all (non-jury) matters should proceed virtually unless it is absolutely necessary to hold the proceeding in person”. He further requested that counsel and parties only request in-person hearings where absolutely necessary; and similarly for judicial officers when exercising their authority to only hold in-person hearings where absolutely necessary. The Chief Justice observed that we must do what we can to move matters forward while supporting public health efforts to stabilize the situation.

[6] On January 4, 2021, Ms. Prosser communicated with the Trial Coordination Office that Mr. Patriquin was not consenting to the sentencing hearing proceeding remotely. The necessary implication was that Mr. Patriquin was requesting an in-person hearing. Ms. Prosser clarified an earlier communication and confirmed that no viva voce evidence was being adduced during the hearing. In the circumstances, I directed a case conference which proceeded by teleconference on January 5, 2021.

[7] Ms. Prosser participated for the defence and Mr. de Koning for the Crown.

[8] Ms. Prosser’s submissions can be briefly summarized as follows:

1. Mr. Patriquin’s consent is required pursuant to s. 650(1.1) of the Criminal Code of Canada and he does not consent;

2. An in-person hearing is required given the significance of the sentencing phase to Mr. Patriquin;

3. The constitutional challenge and sentencing submissions are interrelated so the legal argument cannot proceed as a discrete argument;

4. Ms. Prosser’s experience with virtual proceedings has not been positive with proceedings interrupted by technology issues.

[9] Ms. Prosser could point to no exceptional circumstances nor anything that would distinguish Mr. Patriquin from a similarly situated offender. She advised that no objection was made to the Crown participating remotely. However, when asked, she advised that the defence wishes me to be present in the courtroom during the hearing. If the court were not prepared to do so, she suggested that the defence would request an adjournment and conceded that the delay would be that of the defence.

[10] Mr. de Koning wishes to proceed remotely. He points to the newly enacted provisions of the Criminal Code of Canada at s. 715.25 and following which empower the court to convene hearings remotely. He would oppose any adjournment request given the amount of time that has elapsed since Mr. Patriquin’s guilty pleas.

[11] The Criminal Code of Canada now provides as follows:

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.

715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

715.23 (1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the accused;

(b) the costs that would be incurred if the accused were to appear personally;

(c) the suitability of the location from where the accused will appear;

(d) the accused’s right to a fair and public hearing; and

(e) the nature and seriousness of the offence.

715.25 (1) In this section, participant means any person, other than an accused, a witness, a juror, a judge or a justice, who may participate in a proceeding.

Participation by audioconference or videoconference

(2) Except as otherwise provided in this Act, the court may order a participant to participate in a proceeding by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the participant;

(b) the costs that would be incurred if the participant were to participate personally;

(c) the nature of the participation;

(d) the suitability of the location from where the participant will participate;

(e) the accused’s right to a fair and public hearing; and

(f) the nature and seriousness of the offence.

Judge or Justice

Presiding by audioconference or videoconference

715.26 (1) Except as otherwise provided in this Act, the judge or justice may preside at the proceeding by audioconference or videoconference, if the judge or justice considers it necessary having regard to all the circumstances, including

(a) the accused’s right to a fair and public hearing;

(b) the nature of the witness’ anticipated evidence;

(c) the nature and seriousness of the offence; and

(d) the suitability of the location from where the judge or justice will preside.

Reasons

(2) The judge or justice shall include in the record a statement of the judge or justice’s reasons for the decision to preside at the proceeding by audioconference or videoconference.

Cessation

(3) The judge or justice may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that the judge or justice considers appropriate in the circumstances to preside at the proceeding.

[12] I have concluded that I will preside at the hearing by videoconference. Mr. de Koning will participate in the same manner. Mr. Patriquin and his counsel are at liberty to participate by video-link from the courthouse at 80 Dundas Street, which remains open. A courtroom staffed by a Registrar and Reporter will be present to facilitate and ensure the hearing proceeds as smoothly as possible. The court staff have received training and are becoming increasingly accustomed to the new reality imposed by the restrictions occasioned by the pandemic.

[13] Various proceedings are routinely (albeit not exclusively) conducted by teleconference and video conference, including civil and criminal pre-trials; civil and criminal applications and motions; summary conviction appeals; sentencing hearings; and civil and criminal non-jury trials.

[14] In coming to this conclusion, I have considered the public health concerns respecting COVID and the factors enumerated at s. 715.23(1)(a) through (e). Mr. Patriquin is not in custody. Video conference equipment is available at the courthouse at no cost to him. He will have the opportunity to consult with his counsel at any time during the hearing just as he would if everyone were physically present in the courtroom.

[15] The hearing will be fair and public just as it would be if all participants were physically in the courtroom. The offences are obviously serious but do not otherwise change the analysis.

[16] The same holds true with respect to s. 715.26(1)(a) and (c). As to (b), as already noted, no viva voce evidence will be tendered. Finally, there should be no concern about the suitability of the location from where I will preside. It is local, private and equipped for a remote proceeding.

[17] I do not share Ms. Prosser’s misgivings about the technology although I acknowledge issues do arise from time to time. Court staff including Information Technology personnel are available to assist as required. In any event, if difficulties arise, s. 715.23(3) and 715.26(3) provide that the use of technology can be ceased if necessary and alternative measures taken.

Justice H. A. Rady

Date: January 15, 2021