Court File and Parties

COURT FILE NO.: CR-21-5249 DATE: 20230105 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Shanice Wynter and Kahli Johnson-Phillips Accused

Counsel: Bryan Pillon and Jamie Lesperance, for the Crown Anthony Bryant, for Shanice Wynter Michael Moon and Nicole DeBellefeuille for Kahli Johnson-Phillips

HEARD: January 4, 2023

Ruling on Application

HEBNER J.

[1] Ms. Wynter and Mr. Johnson-Phillips are facing charges under the Criminal Code of Canada, R.S.C. 1985, c. C-46, that they committed first degree murder to the person of Jason Pantlitz-Solomon on August 27, 2018. Ms. Wynter is facing an additional charge that she committed aggravated assault to the person of Camille Lufitha-Molima and Mr. Johnson Phillips is facing an additional charge that he attempted to murder Ms. Lufitha-Molima. The trial is scheduled to begin September 11, 2023, for 14 weeks.

[2] Both Ms. Wynter and Mr. Johnson-Phillips have filed a number of pre-trial applications that are scheduled to be dealt with over a period of 13 weeks in January, March and May of 2023. By order of RSJ Thomas the pre-trial applications are proceeding by Zoom. On the morning of the second day of the pre-trial applications, Ms. Wynter requested an order under s. 650 (2) allowing her to be off screen during those motions in which she concedes that she does not have standing. She wishes to be off screen during both the evidence taken on the motions and argument.

[3] In her written application, Ms. Wynter said that she wished to be absent during those motions in which she does not have standing so that she could attend to her three-year old child and her ailing mother. At my request, Ms. Wynter gave evidence under oath on her application. She provided the following information:

• Ms. Wynter resides in Mississauga in an apartment with her three-year old son and her mother, who is one of her sureties. Ms. Wynter’s mother had an injury to her back and has difficulty walking.
• Ms. Wynter’s child does not attend daycare. He is cared for at home by Ms. Wynter, Ms. Wynter’s mother and Ms. Wynter’s sister, who apparently also resides with them.
• Ms. Wynter works at Fit4Less, an exercise facility. She has worked at this facility for seven years. She works four to five days per week, on one of two shifts: 9:00 a.m. to 5:00 p.m. or 1:00 p.m. to 5:00 p.m.
• During her preliminary hearing, Ms. Wynter said she was given permission to be off camera. She was of the mistaken assumption that she could be off camera during these proceedings so long as she was listening to the proceedings and was taken by surprise yesterday when I insisted that she be on camera at all times.
• Because she thought she would be able to be off camera, Ms. Wynter did not make arrangements to be off work for this first five weeks of pre-trial applications. She did make arrangements for a leave of absence for the month of March and the month of May.
• Ms. Wynter said that childcare and care for her mother is no longer an issue because her sister assists her.
• The issue is Ms. Wynter’s employment. Ms. Wynter’s duties at her place of employment include sanitizing the equipment. She proposes to have her cell phone in her pocket and her ear pods in her ears and listen to the proceedings while she works. She said she will not be required to interact with customers.
• Ms. Wynter asserts that her duties at work will not distract her ability to hear the proceedings and that she will have the ability to communicate with counsel when necessary.
• Ms. Wynter reiterated that her employment is the issue; that this is not a new issue; that she just did not think she needed to be present. Mr. Bryant said there was “a misunderstanding”.
• Ms. Wynter said that she understood if evidence is ruled admissible that the Crown intends to use that evidence against both she and Mr. Johnson-Phillips.

Positions of the Parties

[4] Counsel for Ms. Wynter requests an order that allows for Ms. Wynter to attend by audio only and that she be permitted to turn her video off so that she can attend to her duties at work.

[5] The Crown's position is that leave should not be granted, and Ms. Wynter should be required to attend in person, on camera by Zoom.

The Law

[6] The Criminal Code, s 650(1) requires that an accused must be present throughout their trial:

650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused ... shall be present in court during the whole of his or her trial.

[7] This rule has a number of exceptions:

1. For appearances where evidence is not taken, and the accused has a lawyer or appears by video link (Criminal Code, s 650(1.1));
2. For appearances that involve taking evidence and where the accused appears by video link and has a private line of communication to the accused’s lawyer, if any (Criminal Code, s 650(1.2));
3. Where the accused is disruptive and must be removed (Criminal Code, s 650(2)(a));
4. Where the issue is whether the accused is unfit to stand trial, and the evidence of that may adversely affect the accused (Criminal Code, s 650(2)(c));
5. Where the accused is represented by a lawyer (with some limitations) (Criminal Code, s 650.01); and
6. Where the court permits “... the accused to be out of court during the whole or any part of his or her trial on such conditions as the court considers proper” (Criminal Code, s 650(2)(b)).

[8] The application by Ms. Wynter is under the final alternative, to excuse an absence “on such conditions as the court considers proper”.

Analysis

[9] The accused has a fundamental right to attend at his or her trial. This right serves two key purposes. Firstly, an accused is present to hear the case he or she faces and therefore is able to put forward a defence. Secondly, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and that the trial is fair. (R. v. Chan, 2002 ABQB 866)

[10] The presence of the accused is not merely a formality. It respects the right of the accused to fully participate in the proceeding.

[11] Much like any other area of judicial discretion, section 650 of the Criminal Code requires the court to balance the imperative that an accused attend at all parts of his trial with a legitimate request to be absent from court. The exercise of that discretion is an individual process, which depends on the dynamics of the trial, trial length, the reasons for the request and the public policy interest aspects. Indeed, I suspect that many of the requests by accused to be absent for a part of the trial occur where the trial is a lengthy one such as is the case here. The view of the Crown is also highly relevant as it is primarily the Crown's risk if the trial goes sideways due to the absence of an accused. An improper absence by the accused from a court proceeding has dire consequences (R. v. Pazder, 2015 ABQB 493).

[12] I take the following principles from the jurisprudence:

• The powerful negative potential consequences of an incorrect absence means that an absence should only be granted in the clearest of circumstances, where the rights of all trial participants are respected and where the accused's absences do not lead to unnecessary delays (R. v. Durward, 2014 ONSC 2182).
• An accused may only be permitted to absent his or herself from a proceeding where that accused establishes a “substantial cause… to be absent that is more than… mere preference” (Durward at para 44).
• An accused should be present for any part of the criminal proceeding that affects the vital interests of the accused or where any decision made bears on the substantial conduct of the trial. This includes:
  • arraignments and pleas;
  • jury selection;
  • reception of the evidence, including voir dire proceedings and rulings with respect to admissibility of evidence;
  • trial arguments by counsel;
  • receipt of the verdict;
  • sentencing.
• Absences may occur:
  • If a part of the proceeding is completely unrelated to the charges against the accused;
  • for defined, short periods where the court can with confidence predict the absence will not cause issues or delay;
  • where it is highly unlikely that the accused would or could add anything to the evidence or assist counsel in examination of witnesses;
  • in anticipation of conduct that is expected to disrupt the court proceedings;
  • to give effect to informant privilege;
  • during preliminary investigation of matters that may potentially affect trial fairness;
  • where the accused is absent for an application that may, in the future, be repeated without prejudice to the accused. (Pazder)

[13] The first fundamental principle is that Criminal Code, section 650 (2)(b), should only be used sparingly and with caution. An accused's absence should only occur where there is a valid and legitimate reason that does not offend public policy and that is beneficial to the accused without prejudicing the fair trial rights of the accused and other trial participants.

[14] The accused must have a good reason to be absent. Case law has identified a number of legitimate bases for an absence. One is a medical condition (Durward). A second is economic hardship (Durward). The list is not exhaustive. In all cases, the court should not lightly depart from the normal process and procedure.

[15] While the court will strive to co-operate, no absence should be allowed if it would jeopardize the timing of the trial or cause lengthy delays. A common thread in the case law is that permission to be absent may be given in a long complex case for a valid reason where a detailed schedule of the elements of the trial and the witnesses to be called during trial have been provided. The plausible scenario for granting a request is where there are multiple accused and offences, or in applications that are truly ancillary to a trial process.

[16] Here, Ms. Wynter seeks the flexibility to be absent from the video screen during the pre-trial applications in which she has no standing; specifically, the challenge of the reasonable grounds to take down the Altima motor vehicle and the challenge to the Calendar Road warrant.

[17] The Crown points to the difference between “standing” and “interest”. While Ms. Wynter does not have standing to challenge the takedown of the motor vehicle, cell phones seized from the Altima may include text exchanges between the co-accused. The Crown will seek to use those text messages against both accused. Similarly, while Ms. Wynter does not have standing to challenge the Calendar Road search warrant, various items, including cell phones, were seized from the bedroom where Mr. Johnson-Phillips was located. The Crown will likely use text communication believed to be between Ms. Wynter and Mr. Johnson Phillips from a cell phone seized in this residence. Thus, although Ms. Wynter has no standing in these two Charter applications, her interests could be triggered by the use of this evidence.

[18] I am sympathetic to Ms. Wynters’ request. This will be a long, grueling trial that will take Ms. Wynter away from her day-to-day responsibilities for many weeks. However, I must ensure that the trial proceeds forward as efficiently as possible and without delay. These are very serious criminal charges that carry substantial jeopardy for both Mr. Johnson-Phillips and Ms. Wynter. Ms. Wynter has been granted release on conditions that allow her to remain out of custody while the trial proceeds. Moreover, RSJ Thomas has ordered that the pre-trial motions may proceed by Zoom, which is an enormous accommodation to counsel, witnesses and Ms. Wynter, who resides in Mississauga and may attend virtually rather than be required to attend in Windsor.

[19] There has been no evidence of a financial hardship of the type that might allow an accused to be absent for trial. Rather, Ms. Wynter has fairly given evidence that she misunderstood the proceedings and did not arrange to take time off work. I take from that that Ms. Wynter’s employer may be disadvantaged although, of course, Ms. Wynter may lose her employment income as a result.

[20] In the end, in my view, the duty of Ms. Wynter to attend her trial, the interests of society in ensuring that the trial moves forward without the potential delay and difficulties that could occur, and the interests of society in ensuring that Ms. Wynter is fully aware of every aspect of her trial including the determination of the admission of evidence to be used against her, must outweigh the difficulties that Ms. Wynter will have by attending at the trial.

Disposition

[21] For these reasons, Ms. Wynter’s request is dismissed. Just as Mr. Johnson-Phillips is required to attend the entirety of the trial and remain on screen, Ms. Wynter will be required to do so as well.

Original Signed by “Justice P.L Hebner” Pamela L. Hebner Justice Released: January 5, 2023