Court File and Parties

Court File No.: CR-22-40000627 Date: 2024-06-20 Superior Court of Justice - Ontario

Re: R. v. Abib TOURAY

Before: Schreck J.

Counsel: G. Elder, for the Crown M. Di Sabatino, for Mr. Touray

Heard: June 20, 2024

Endorsement

[1] After Abib Touray was convicted of sexual assault on April 12, 2024 following a judge alone trial, the Crown applied pursuant to s. 523(1)(b)(ii) of the Criminal Code to have his bail revoked pending sentencing. I dismissed the application because Mr. Touray had a substantial history of attending court as required and abiding by the conditions of his bail. It turns out that I was wrong to do so. Mr. Touray did not attend his sentencing hearing and based on evidence I heard from a police officer and an employee of the Bail Program, I concluded that he had absconded within the meaning of s. 475 of the Criminal Code, that is, that he “voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences”: R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 141 (aff’d on this point, , [1990] 2 S.C.R. 1421, at p. 1469).

[2] The Crown seeks to have Mr. Touray sentenced in absentia. Counsel for Mr. Touray, who has remained on the record despite being unable to get instructions, opposes the request and seeks an adjournment so that she can make further attempts to contact Mr. Touray through a telephone number she recently obtained from a relative of his.

[3] Section 475(1)(b) of the Criminal Code allows the court to continue with the proceedings if satisfied that it is not in the interests of justice to await the appearance of the accused. As Pomerance J. explained in R. v. Singh, 2015 ONSC 904, at para. 4:

The section creates an exception to the requirement that the accused be present at his or her trial. The operative question is whether it is “in the interests of justice” to proceed. This exception should be invoked sparingly, and only when the interests of justice create an imperative to continue despite the absence of the accused.

[4] In determining whether to exercise its discretion to proceed with a sentencing hearing in absentia, the court’s primary consideration will be whether it has sufficient information about the accused to determine an appropriate sentence. As explained in Singh, at para. 20, proportionality is the central objective of sentencing and can only be achieved through “a complete understanding of not only the crime, but the person who committed it, including his or her background, experience and other personal circumstances.” An accused who absconds forfeits his right to participate in the sentencing proceedings, but “has not forfeited his right to a fit sentence”: Singh, at para. 17.

[5] Whether or not there is sufficient information to proceed in absentia will depend on the facts of the case. For example, courts have been satisfied that there is sufficient information from evidence heard at trial (R. v. Kiddinar, 2017 ONCJ 694, at para. 28; R. v. P.M., 2020 ONSC 3325, at para. 13), where a presentence report (“PSR”) has been prepared (R. v. Maxwell, 2013 ONSC 5088, 49 M.V.R. (6th) 259, at para.14; R. v. Mitsakis, 2022 ONSC 5390, at para. 18; R. v. Shirley, 2009 ONCJ 266, at para. 8; P.M., at para. 13) or where counsel was able to provide sufficient information about the offender’s background (R. v. Bayani, 2011 ONSC 5808, at paras. 30-32).

[6] Although a PSR was ordered in this case, none was prepared because Mr. Touray did not attend the appointment with the probation officer assigned to prepare it. However, a PSR was prepared in January 2023 in relation to a sentencing for a different offence. As well, Mr. Touray testified at trial and in so doing provided some information about his background. In addition to this, his counsel is willing to continue to represent him.

[7] In my view, there is sufficient information available such that it would be inappropriate to adjourn the sentencing hearing until Mr. Touray can be located and brought before the court. However, I am willing to grant the defence request for a brief adjournment for two reasons. First, the PSR from the earlier sentencing was only provided to defence counsel recently and she wishes an opportunity to follow up on some of the information in it. Given that the information in it may be dated, it is appropriate to allow her to do so. Second, defence counsel wishes an opportunity to make a last attempt to contact Mr. Touray at a telephone number she only recently became aware of.

[8] For the foregoing reasons, the sentencing hearing is adjourned for one week to June 27, 2024. To be clear, it will proceed on that date whether or not Mr. Touray is present.

[9] A warrant for Mr. Touray’s arrest shall issue pursuant to s. 597(1) of the Criminal Code.

Schreck J. Date: June 20, 2024