COURT FILE NO.: CR 21-99-00AP
DATE: 2022-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
Joel Viau
Appellant
David Kirk, for the Respondent
Joel Viau, representing himself
HEARD virtually at North Bay: October 12, 2022
DECISION ON SUMMARY CONVICTION APPEAL
A.D. KURKE, J.
Introduction
[1] The appellant appeals against his April 12, 2021 conviction for failing to appear in court. At the trial of this matter, the trial judge invoked s. 650(2)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and excluded the self-representing appellant from his trial for “misconducting himself and interrupting the proceedings.” The appellant was brought into the court twice after his initial exclusion. The first time was after arraignment and before the Crown called its first witness; after similar conduct, the appellant was again excluded. The second time was after the trial judge had found the appellant guilty. The appellant was brought back into court before he was sentenced to one day jail.
[2] These reasons explain why the conviction must be quashed and a new trial must be ordered.
[3] At the close of the Crown’s case the court had a duty to offer the appellant an opportunity to answer the Crown’s case and present a defence, in accordance with s. 650(3) of the Criminal Code. The failure to do so resulted in a miscarriage of justice and is fatal to the conviction.
Facts
[4] This was a challenging case for the trial court when it came up on April 12, 2021. The appellant was self-represented and presented as an OPCA litigant[^1]. Right from the start of the case he refused to answer simple procedural questions or engage with standard courtroom ritual.
[5] When the trial judge asked the appellant if he was ready for his trial, the appellant claimed that he was the victim of “trespass by way of robbery.” He claimed to be accused of “owing a debt” and that he and his property were being held “as ransom.” The trial judge repeated his question and was met with a farrago of legalese, and a claim of entitlement to a trial by jury, to which the trial judge responded that he was not entitled to one. This led to the following exchange:
THE COURT: It is a summary conviction offence.
[THE APPELLANT]: I don’t give a s***. I’m entitled to a trial by jury.
[6] The appellant talked while the trial judge spoke and the trial judge warned the appellant that he was going to have the appellant removed and proceed in his absence if he continued to interrupt. While the trial judge directed the clerk to arraign the appellant, the appellant continued to interrupt. When the clerk began to arraign, and stated the appellant’s name and date of birth, the appellant responded: “I don’t know my date of birth, I was pretty young at the time that I was born. My date of birth is hearsay information.”
[7] The trial judge at that point ordered the appellant removed pursuant to s. 650 of the Criminal Code “because he is misconducting himself and interrupting the proceedings so that to continue in his presence would not be feasible.” As he was required to do by s. 606(2) of the Criminal Code, the trial judge entered a plea of not guilty on the appellant’s behalf, at which point the appellant, who had not yet been removed, accused the trial judge of “practicing law from the bench.”
[8] Briefly, the charge before the court involved an allegation that the accused had failed to re-attend court in the Superior Court of Justice on November 13, 2019. After arraignment, the Crown introduced into evidence a certificate of non-attendance, a transcript of the proceedings from the set date on October 4, 2019, and notices that were served on the appellant of the Crown’s intention to adduce those items into evidence at trial. The Crown explained that the transcript contained utterances from the appellant that he had made on the set date, to be used for their “truth” and for the Crown’s use “if [the appellant] was going to take the stand in his own defence.” The trial judge noted in response, “that doesn’t appear that that’s going to happen…[b]ut I will invite him to do so if he wishes to do so.”
[9] As the transcript of proceedings of October 4, 2019 makes clear, on that date the appellant had been similarly obstructive. He had offered pseudo-legal statements and argument and he told the presiding justice that he would not re-attend court on the return date that was set, November 13, 2019. All the while, the appellant continued to ignore the presiding judge and talk over him.
[10] After the Crown had filed the written material at the appellant’s trial, he suggested that the appellant be brought back into court “to see if he’s changed his mind at all at this stage” since he had had a “few minutes of cooling”. On the appellant’s return to court, the trial judge explained that the clerk had arraigned the appellant and the trial judge had registered a plea of not guilty on the appellant’s behalf in his absence. The appellant then continued in the same vein as earlier in the proceeding: that the judge could not practice law from the bench, that “guilt” means “debt” in German, and that the appellant should be presented with a bill so that he could pay his “debt”. The trial judge again had the appellant removed, as he was being disruptive, disrespectful, and interfering with the proceedings.
[11] After that, the Crown called as a witness a court officer from the North Bay courthouse, who identified the appellant and gave evidence about his attendance on October 4, 2019 and his non-attendance on November 13, 2019. The Crown closed its case, and the trial judge immediately proceeded to give his reasons.
[12] The trial judge first explained that he was aware that the appellant has the right to make full answer and defence but given the appellant’s behaviour in court on two occasions, “I am satisfied that that is beyond his focus today.” He made reference to aspects of the appellant’s conduct. The trial judge then referred to s. 650(2)(a) of the Criminal Code and explained that he had acted in accordance with it. The trial judge continued that when the appellant was recalled, “he simply refused to acknowledge anything that I said.” The trial judge then scrupulously reviewed the evidence offered by the Crown and found the appellant guilty of the charge.
[13] After the finding of guilt, the Crown made sentencing submissions, in the appellant’s absence. The appellant was brought back into court and conducted himself as he had earlier. When the trial judge referred to him as “Mr. Viau”, the appellant denied being a “mister”; he was a “man”. The court then explained to him, “Okay, man. We have now completed the Crown’s case.” The appellant then spoke about being presented with a bill so that he could pay his debt. The trial judge continued: “I’m at the point where I found you guilty and I have to sentence you…. I want to know if you want to say anything with respect to sentence?” The appellant responded that “I don’t consent to any of this” and then continued into pseudo-legalese. The trial judge imposed the sentence that the Crown had proposed in the appellant’s absence.
[14] At this point, the appellant asked, “Where was my fair trial in an impartial and independent tribunal?” The trial judge briefly spoke of his reasons for excluding the appellant from the courtroom, and the appellant claimed that the court was “a British private court.” Invoking the “Constitution”, the appellant asserted that he had been denied an “independent or impartial tribunal”.
Grounds of appeal
[15] The Notice of Appeal is consistent with the appellant’s presentation at trial. In answer to the question on the form, “Plea at trial”, the appellant wrote a response: “no plea was entered by the man known as Joel.”
[16] Listed among the grounds are many that are familiar from this and other OPCA litigants, such as, among others: “1. Failure to provide subject matter jurisdiction…. 2. Interfered with International Human Rights Documents…. 4. Failure to provide a sworn affidavit in support of the claims made against me as a man…. 6. No valid contract between the Corporation of HER MAJESTY THE QUEEN and the Corporation of JOEL RAYMOND VIAU…. 12. Invocation of Article 61 of the Magna Carta in 2001… 19. The Crown templar prosecutor abandoned the rule of law by creating and continuing a conflict…. 22. There had been aggreement [sic] of the parties by tacit acquiesce [sic].” It is not my intention to comment on these grounds, as they are frivolous OPCA nonsense.
[17] Some grounds could perhaps be construed as legitimate grounds, even if poorly or contemptuously worded: “14. Interference with my rights as a man to an independent court of record where all parties swear to tell the truth…. 16. Fraud on the court by the judge….” It is not my intention to tease meaning into these grounds, as it is unnecessary to do so given other legitimate concerns raised by the appellant.
[18] Those legitimate concerns relate to the appellant’s exclusion from court during his trial, and to the court’s failure to give him the opportunity to make full answer and defence. While the respondent submits in its factum that s. 650 of the Criminal Code was not directly raised by the appellant, I believe that a court must take a more expansive view of the appellant’s grounds, as he continues to represent himself and should not be deprived of his opportunity to seek appellate redress. I view the following listed grounds as engaging that provision of the Criminal Code:
Judge/administrative clerk interfered with Rights protected by the Constitution
Interferance [sic] with my right to face my accuser
Interferance [sic] with my rights as a man to a fair trial
Interference with my rights as a man to have all the guarantees for my defense [sic]
Law
[19] The appellant is a self-represented litigant. The Ontario Court of Appeal has repeatedly reminded judges and opposing counsel of their roles in ensuring trial fairness where one party is self-represented: Girao v. Cunningham, 2020 ONCA 260, at paras. 148-152; Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, at para. 34; Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37; Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. At paras. 149-150 of Girao, the court reminds trial judges of their responsibility for controlling proceedings while maintaining judicial impartiality in an adversary system. This includes allowing for flexibility in trial procedure and the admissibility of evidence where one party is self-represented.
[20] An accused person’s right to be present at his/her trial is protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and by s. 650 of the Criminal Code: R. v. Hudson, 2021 ONCA 772, 158 OR (3d) 589, at para. 160; R. v. G.V., 2020 ONCA 291, at para. 24; R. v. Dedam, 2018 NBCA 52, passim and at para. 52.
[21] For the purposes of this appeal, it is unnecessary to engage with the Charter or with the international human rights documents advanced by the appellant in his submissions. The relevant portions of s. 650 of the Criminal Code state:
- (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.
(2) The court may
(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;…
(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
[22] In R. v. Vezina, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2, at para. 13, the Supreme Court of Canada accepted that s. 650(1) bestows on an accused person the right “to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interest.” That right is subject only to the exceptions listed in s. 650(2): R. v. Howell, [1955] O.J. No. 328 (C.A.), at para. 3.
[23] The jurisprudence under s. 650(2)(a) of the Criminal Code instructs that the court should exercise the power to exclude an accused from his trial “‘exceedingly sparingly’ and only in an obvious case and only where there is really no alternative”: Girard (Re), 2016 ONCA 985, at paras. 7-8; R. v. Ross (2006), 2006 PESCTD 11, 256 Nfld & PEIR 25 (P.E.I. S.C.T.D.), at para. 51.
[24] The limit created by s. 650(2)(a) recognizes that the right to defend oneself is not a licence to obstruct the course of justice: see, e.g., R. v. Spataro 1972 CanLII 25 (SCC), [1974] S.C.R. 253. Misconduct that interrupts the proceedings and makes it impracticable to continue in the presence of an accused will justify his or her exclusion. So, constant interruption during witness testimony, abusive conduct towards witnesses or the Crown, or open defiance of the presiding judge have been held to justify exclusion: R. v. Piotrowski, 2011 ONCJ 561, at paras. 4-5; R. v. Thompson, [1996] O.J. No. 3555 (C.J.), at paras. 3-4, 15.
[25] Accused persons who are representing themselves require special attention in the context of s. 650(2)(a). Judges must exercise judicial patience and restraint before any limitation is put on an accused’s right to be present and to have their case heard. This requires the court to look for alternative corrective measures that do the least injury to the accused’s legal rights, while preserving an orderly court atmosphere: Girard (Re), at para. 8, citing R. v. Fabrikant (1995), 1995 CanLII 5384 (QC CA), 39 C.R. (4th) 1 (Que. C.A.), at para 49; leave to appeal ref’d [1995] 3 S.C.R. vi. So, a trial judge who has excluded an accused may need to cross-examine Crown witnesses diligently or issue subpoenas for the accused, to ensure the fairness of trial: R. v. Pawliw (1985), 1985 CanLII 656 (BC SC), 23 C.C.C. (3d) 14 (B.C.S.C.), at paras. 10-12; aff’d 8 W.C.B. (2d) 14 (B.C.C.A.).
[26] However, even if an accused has been removed from court for misbehaviours defined in s. 650(2)(a), he must still, by s. 650(3), be given the opportunity to make full answer and defence after the close of the case for the Crown. If at that point the accused is brought back in and continues to misbehave, the court may need to take further steps, but the court’s duty to offer the accused the opportunity to make full answer and defence must be respected: Pawliw, at para. 14. An accused person has the right to adduce relevant evidence, including his or her own testimony: R. v. Fabrikant, at para. 21. Self-representing individuals have the right personally to make submissions on the case: R. v. Aucoin, 1979 CanLII 29 (SCC), [1979] 1 S.C.R. 554; R. v. Gronka, [1979] O.J. No. 799 (C.A.).
Discussion
[27] The appellant submits that all he was doing before he was ejected from court was asking questions to understand what was going on. The transcript of proceedings in this case does not validate that submission. The appellant’s conduct in the courtroom was obstructionist right from the start of the trial. He was removed only after he had been warned that the trial judge was contemplating this step.
[28] When the appellant was given a second chance and was brought back into court after the Crown had filed its paper exhibits and was preparing to call viva voce evidence, he kept up his obstructive behaviour, and again had to be removed. Even at that time, however, the Crown was of the view that the appellant might testify and offer something that could be tested by the statements recorded on the transcript of October 4, 2019. The trial judge acknowledged that he would give the appellant the right to take the stand in his own defence if he wished to do so.
[29] In the circumstances of this case, I cannot say that the trial judge erred in excluding the appellant from the courtroom. The appellant’s continuous advancement of pseudo-legal irrelevancies, his non-responsiveness to procedural questions, and his insistent rudeness in speaking over the trial judge, offered ample grounds for the trial judge to conclude that it was not feasible for the trial to take place in the appellant’s presence.
[30] While it may have been preferable for the trial judge to have given the appellant greater latitude or exhibited more forbearance, I am unable to find that the trial judge improperly invoked s. 650(2)(a) of the Criminal Code in excluding the appellant from the proceeding. The use of OPCA argument to frustrate the court’s proceedings has been appropriately described as “an abuse of the court’s processes”: Unrau v. National Dental Examining Board, 2019 ABQB 283, at para. 180. The appellant’s conduct in this case supports that conclusion.
[31] After the appellant’s second exclusion, the trial continued and the Crown closed its case. At that point, the trial judge invited the Crown to be seated, and proceeded immediately to give his reasons for finding guilt. Unfortunately, and doubtless because distracted by the appellant’s conduct and unimpressed by his contributions to the trial, the trial judge failed to turn his attention to the requirements imposed by s. 650(3) in the circumstances of an unrepresented accused, or to recall his own earlier indication that he would invite the appellant to offer evidence.
[32] The appellant was brought back into court not at the close of the Crown’s case, but only after the trial judge had found him guilty of failing to attend court. In a telling conjunction, the trial judge explained to the appellant both that “[w]e have now completed the Crown’s case,” and that “I’m at the point now where I found you guilty”. He asked the appellant if he wanted to say anything about sentence. The invitation to speak at this point underscores that the trial judge should have and could have offered the appellant the opportunity to adduce evidence and to make submissions on the trial evidence once the Crown had closed its case.
[33] The respondent submits that in the circumstances of this case, the appellant suffered no substantial wrong or miscarriage of justice because of his inability to “make full answer and defence,” since his OPCA contributions to the proceeding could not have affected the result.
[34] It may well be that the appellant would have offered nothing of any assistance to the trial judge’s assessment of guilt or innocence. However, for a trial process to be characterized as fair, even where the accused has been removed from the courtroom because of his own misconduct, the court must still accord the appellant the most elemental trappings of a fair trial: the opportunity to adduce evidence and to make submissions. The process must be fair and be seen to be fair, even when faced with an obstructionist accused. Even if it were possible to find that the appellant has suffered no prejudice in the circumstances of this case, that would not suffice. The failure to provide the appellant with the opportunity to make full answer and defence leads inexorably at least to the appearance of unfairness and therefore a miscarriage of justice in the circumstances of this case: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 27-28, 73; R. v. Wilde, 2022 SKCA 74, at para. 17.
[35] Accordingly, the conviction must be quashed.
[36] Although the appellant submits that an acquittal should be entered, the Crown still has a case to put to the trier of fact; the error here was procedural. Accordingly, it is appropriate to order that there be a new trial: R. v. Woodward, 1975 CanLII 1471 (Ont. C.A.), at para. 6.
Conclusion
[37] For the above reasons the conviction is quashed and a new trial ordered. The matter is remitted to the Ontario Court of Justice to set a date for trial.
The Honourable Mr. Justice A.D. Kurke
Released: October 17, 2022
COURT FILE NO.: CR 21-99-00AP
DATE: 2022-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Respondent
– and –
Joel Viau
Appellant
DECISION ON
SUMMARY CONVICTION APPEAL
A.D. Kurke, J.
Released: October 17, 2022
[^1]: A neologism offered by Rooke A.C.J. in Meads v. Meads, 2012 ABQB 571, “OPCA” is an acronym for “Organized Pseudolegal Commercial Argument,” a term applied to arguments by litigants who (at para. 1) “employ a collection of techniques and arguments promoted and sold by 'gurus'… to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.” Such strategies tend to involve arguments that the OPCA litigant is outside of the court’s jurisdiction and is therefore not bound by its rules (para. 629). Meads offers an extended taxonomy of OPCA strategies.