COURT FILE NO.: CR-23-0244-00 DATE: 2024-05-09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Haque, for the Federal Crown

- and -

BRIAN KELNERIC J. Danto-Clancy, for the Accused Accused

HEARD: May 7, 2024, at Thunder Bay, Ontario

BEFORE: Regional Senior Justice W. D. Newton

Decision on Remote Appearance Application

Overview

1On May 7, 2024, six days before his trial was to begin, Mr. Kelneric brings an application that he be permitted to attend his trial remotely. The Crown opposes. As I indicated orally when this application was heard on May 8, 2024, the application to attend his trial remotely is dismissed and Mr. Kelneric must attend his trial in person in Thunder Bay on May 13, 2024, at 10:00 a.m. These are my reasons.

The Facts

2On December 22, 2021, Mr. Kelneric was arrested in Thunder Bay and charged with being unlawfully in a dwelling, three counts of possession for the purpose of trafficking, and possession of proceeds of crime.

3On January 29, 2024, dates were confirmed for a Charter application on March 14, 2024, and for trial on the running list commencing May 13, 2024. The application commenced on March 14, 2024, and was adjourned on consent to April 19, 2024 for submissions. Reasons dismissing the application were delivered April 25, 2024. The trial date was confirmed as commencing May 13, 2024 on April 30, 2024.

4Mr. Kelneric resides in Toronto and asserts that it would be a financial hardship for him to travel to Thunder Bay and stay here for his trial which is scheduled to last three days. An affidavit was filed as to the cost of air travel. Mr. Kelneric testified on the Charter application and stated that he is not employed and his receiving social assistance.

The Law

The Criminal Code provides as follows:

Remote Attendance by Certain Persons

Principles

Attendance

715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so in person.

Provisions providing for audioconference or videoconference

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.

General

Reasons

715.221 If the court denies a request respecting a person’s appearance or participation by audioconference or videoconference under this Part, it shall include in the record a statement of the reasons for the denial.

Accused and Offenders

Considerations — appearance by audioconference or videoconference

715.23 Before making a determination to allow or require an accused or offender to appear by audioconference or videoconference under any of sections 715.231 to 715.241, the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances, including

• (a) the location and personal circumstances of the accused or offender;
• (b) the costs that would be incurred if the accused or offender were to appear in person.
• (c) the suitability of the location from where the accused or offender will appear;
• (d) the accused’s or offender’s right to a fair and public hearing; and
• (e) the nature and seriousness of the offence.

Trial — indictable offence

715.233 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at a trial for an indictable offence. However, an accused must not appear by videoconference during a jury trial when evidence is being presented to the jury. [Emphasis added.]

Position of the Parties

5The Crown does not consent, noting that Mr. Kelneric was arrested in December 2021, has known there was going to be a trial since then, and has known of the trial date for four months. The Crown notes that there are other, less expensive means to travel to Thunder Bay than air, and notes that Mr. Kelneric was able to travel to rent a car and travel to Thunder Bay previously when he was arrested.

6Counsel for Mr. Kelneric submits that Mr. Kelneric does not have the financial means to travel to Thunder Bay and he will be required to seek an adjournment of the trial because his client cannot attend.

Disposition

7Absent consent of the Crown, I have no power to order that the accused attend remotely.

8If I am incorrect in so concluding, I would nevertheless deny the application. I accept that Mr. Kelneric may be of limited resources but there was no affidavit evidence before me of the extent of his resources. The only evidence before me is this statement in a lawyer’s affidavit:

I have been advised and do verily believe that the Applicant does not have the financial means to travel to Thunder Bay at this time.

9The source of that information is not given, and no specific information is giving about Mr. Kelneric’s financial situation, the steps taken to borrow or otherwise obtain the funds to travel to Thunder Bay, or what other options he has explored. Just stating that it will be expensive to attend your trial is insufficient information upon which to grant this order. These are very serious offences which may, upon conviction attract imprisonment. While he was able to attend at his preliminary inquiry on consent via ZOOM, the nature of these offences, having occurred in Thunder Bay, outweigh the other factors. As stated, the application is denied.