COURT FILE NO.: CRIMJ(F) 777-17
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Tremblay, for the Crown
- and -
Keisha Cox
Defendant
Unrepresented
HEARD: September 15, 2021
RULING ON S. 475 APPLICATION UNDER THE CRIMINAL CODE ("THE CODE")
Justice André
[1] The Crown brings an application for the trial of Ms. Keisha Cox in absentia, on the ground that she has absconded pursuant to section 475 (1) (a) and (b) (i) of the Code.
BACKGROUND FACTS
[2] Members of the Royal Canadian Mounted Police (the RCMP) charged Ms. Cox on May 24, 2016 with the offence of Importing a controlled substance into Canada. Ms. Cox had earlier travelled to Jamaica on her Canadian passport under the name, Keisha Cox.
[3] She returned to Canada on May 23, 2016 using the same passport. During a search of her luggage following her arrival, a Canada Boarder Services Officer found approximately 1.8 kilograms of cocaine in her possession.
[4] Ms. Cox had a judge alone trial in the fall of 2018 before Trimble J. He convicted her of the charge on December 3, 2018. Ms. Cox subsequently appealed the decision. The Ontario Court of Appeal overturned the conviction on December 18, 2020, and ordered a new trial.
[5] The matter came up before Durno J. for a judicial pretrial. During this hearing, Ms. Cox raised the issue of jurisdiction and advised the pretrial judge that the court had no jurisdiction over her.
[6] The matter was adjourned to August 5, 2021 for a pretrial motion on the issue raised by Ms. Cox. Miller J. heard the pretrial motion. Ms. Cox filed documents identifying herself as Sheikess Keisha Marie Cox-Bey. Another document identified her as EL Keisha Marie Cox Bey. Miller J. concluded that there was no basis for Ms. Cox’s challenge to the court’s jurisdiction to try her on the indictment before the court. See R. v. Cox, 2021ONSC 5394, at para 17. Her Honour noted at para. 14 that a number of Ontario courts have summarily dismissed similar applications based on the materials relied upon by Ms. Cox.
[7] Ms. Cox appeared before me on September 13, 2021, for her trial. A member of her small entourage was escorted out of the courtroom because of his unruly and disruptive behaviour and his refusal to wear a mask. Ms. Cox refused to come forward to be arraigned before the Crown commenced calling evidence. Rather, she repeated her position that the court had no jurisdiction to try her despite being reminded that Miller J. had rejected her pretrial motion in August 2021. Ms. Cox then threw a document on the floor and stormed out of the courtroom. Despite being paged three times, she never returned to the courtroom. I subsequently issued a bench warrant for her arrest.
EFFORTS TO LOCATE MS. COX
[8] In support of its application, the Crown adduced a number of affidavits of RCMP Officers who attended at Ms. Cox’s last known address but did not locate her.
[9] Officers also attended the residence of Ms. Cox’s surety, knocked on her front door several times but got no response. On one occasion, the surety hung up the phone after being asked about Ms. Cox’s whereabouts.
ANALYSIS
[10] The Application raises the following issue:
a) Has Ms. Cox absconded during the course of her trial?
THE LAW
[11] Section 475 of the Criminal Code permits a trial to proceed in the absence of an accused who absconded during the course of his or her trial. Section 475 (1) reads as follows:
475.(1) Nothwithstanding any other provisions of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,
(a) he shall be deemed to have waived his right to be present at his trial, and
(b) the court may
(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or
(ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance, but where the trial is adjourned pursuant to subparagraph (b) (ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.
[12] In R. v. DiGiacomo 2002 BCCA 444, at para. 9, the British Columbia Court of Appeal noted that “the determination as to whether the missing person accused has absconded is not to be made from the mere fact that the accused was absent.” In R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3rd) 97 (Ont. C.A.) reversed on other grounds 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, the Court of Appeal noted that “the court must be satisfied that the accused voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences.”
[13] Based on the evidence before me, can I conclude that Ms. Cox absented herself from her trial for the purpose of impeding or frustrating the trial or with the intention of avoiding its consequences?
[14] In my view, I can. Ms. Cox brought a pretrial motion for an order declaring that the court has no jurisdiction to try her on the charge of importing a controlled substance into Canada. Miller J. dismissed her motion. Ms. Cox raised the same issue on September 13, 2021, when she appeared before the court on the day her trial was schedule to start. She stormed out of the courtroom. Efforts of a number of RCMP officer to locate her have proven to be unsuccessful. Her whereabouts are unknown.
[15] In these circumstances, I have no difficulty concluding that Ms. Cox has absconded.
[16] That does not end the analysis. As noted by Mascia J.C.Q. in R. c. Elasayed, 2019 QCCQ 3005, at para 30:
A plain reading of section 475 of the Criminal Code dictates that two conditions are required in order to support a conclusion that an accused has waived his right to be present at his trial: (1) he has absconded and (ii) the absconding was done during the course of his trial.
[17] Did Ms. Cox abscond during the course of her trial? This question raises the question regarding when does a trial begin. Does it begin when an accused is arraigned or when the Crown’s first witness takes the stand? Or does it begin when a trial judge or case management judge is required to decide a preliminary issue in the case? See Elsayed, at para.33.
[18] In Elsayed, a trial judge stated that the trial had begun when he ruled on preliminary motion before the indictment was filed and pleas entered. On appeal, Chamberland J.A. of the Quebec Court of Appeal noted at para. 49 that the starting date of a trial may vary depending on the circumstances of the case and the applicable provision of the Criminal Code. In R. v. Chabot, [1980] 2 R.C. 3.985, Chamberland J.A. noted that entering a plea to an indictment is not always necessary in determining the starting point of a trial: Noted in Elsayed, at para. 40. In R. v. Tennina, 2012 ONSC 1989, Gilmore J. noted at para. 31 that: “While it is obvious that, in most cases a trial commences from the arraignment of the accused, and the entry of his or her pleas, case law does not confirm that this is the case.” In R. c. Leventis, [2018] J.Q. No. 2464, St. Gelais J. noted at para. 53 that a case management judge who heard preliminary motions in a matter acted as the trial judge.
[19] In my view, the trial in this matter commenced with Justice Miller when she heard a pretrial motion which could have been dispositive of the case against Ms. Cox. To that extent, the second requirement section 475 of the Code has been met. See Tennina, at para 32. Accordingly, the Crown has met its burden of proving that a trial in absentia is appropriate in the circumstances of this case.
[20] To be sure, Ms. Cox has the right, under s. 7 of the Canadian Charter of Rights and Freedoms, to be present at her trial and make full answer and defence to the charge that she faces. That right includes a robust interpretation of the evidence the Crown relies upon in its case against her. However, that constitutional right was diminished when Ms. Cox decided to impede the trial process by choosing to leave the court to prevent the trial from proceeding. As noted in R. v. Tzimopoulos, 1986 Canlii 152 (ONCA), “it offends a basic principle of fundamental justice if the trial must be aborted because the [accused] absconds.”
[21] There are additional reasons why the court should proceed without Ms. Cox being present. These include:
a) Ms. Cox was charged over five years ago. The matter cannot be allowed to languish in the courts for an indefinite period until such time that Ms. Cox is apprehended;
b) The Covid-19 Pandemic has resulted in a lockdown of the courts and has precipitated huge backlogs of cases in the court system. Court time is therefore at a premium. Two weeks were reserved for a trial in this case. A jurisdiction that has persistently grappled with delays in the bringing of criminal matters cannot countenance a situation where an accused, at the eleventh hour, absconds, thereby causing valuable trial time not be used for an assigned trial.
c) Justice delayed is justice denied. The delay in the trial may undermine the ability of the Crown’s witnesses to recall what transpired on the day when Ms. Cox was arrested.
[22] For all these reasons, Ms. Cox will be tried in absentia.
André J.
Released: September 22, 2021
COURT FILE NO.: CRIMJ(F) 777-17
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KEISHA COX
RULING ON S. 475 APPLICATION UNDER THE CRIMINAL CODE ("THE CODE")
André J.
Released: September 22, 2021