COURT FILE NO.: CR-23-0092-00 DATE: 2024-08-30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King Thomas K. Bud for the Provincial and Federal Crown Respondent/Crown
- and -
Fatah Kulmiye Melody Izadi, for the Applicant Applicant
HEARD: August 19, 2024, Via Zoom, at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton
Reasons on Application for Accused to Appear by Video Conference at his Trial
Overview
[1] On August 19, 2024, I denied Mr. Kulmiye’s request that he be permitted to attend his trial via video conference with reasons to follow.
[2] These are my reasons.
The Facts
[3] Fatah Kulmiye and Mustaf Yusuf [1] are jointly charged with seven offences related to trafficking in cocaine, possession of a prohibited firearm, and possession of the proceeds of crime.
[4] On June 23, 2021, Thunder Bay Police Service officers executed a CDSA search warrant at 121 Maplewood Street South, in the City of Thunder Bay.
[5] Mustaf Yusuf was arrested in the northwest bedroom. Found on his person was identification noting his address as an apartment in North York.
[6] Mr. Kulmiye was arrested in the hallway after running out of the northwest bedroom. When searched incident to arrest, Mr. Kulmiye had on his person approximately 65.24 grams of cocaine and $3,685 in Canadian currency. He identified himself and gave a Toronto address.
[7] In the northwest bedroom, the police found about 1,424 grams of cocaine with a street value of $142,000, cash in the amount of $45,110, a 9 mm semi-automatic handgun, and 76 rounds of 9 mm ammunition in a clear plastic bag. [2]
[8] Although Mr. Kulmiye originally elected trial by judge and jury as early as April 4, 2024, he indicated his desire to re-elect to judge alone; the Crown indicated willingness to consent to the re-election. Mr. Kulmiye formally re-elected, with the Crown’s consent, on August 19, 2024, at the start of this application.
[9] His trial is set for the September running list, to begin on September 16, 2024. This date was set on January 30, 2024. [3]
[10] In support of this application Mr. Kulmiye filed an affidavit from Ms. Laperriere, a lawyer in the firm representing Mr. Kulmiye. Ms. Laperriere deposed the following: a. Mr. Kulmiye resides in Etobicoke as ordered by his recognizance; b. His release conditions are strict “house arrest” with an ankle monitor; c. Mr.miye has been under these strict condition since November 16, 2021; d. There have been on allegations of breach since his release; e. His release conditions were altered to allow him to travel to and from employment on May 8, 2023: f. Mr. Kulmiye had to surrender his passport as provided by his release conditions and that on May 23, 2024, the Crown refused to consent to the return of Mr. Kulmiye’s passport; g. He has no other photo ID and has been unable to obtain an Ontario Photo ID card because he does not have any valid identification besides his passport; h. He cannot travel by airplane without photo ID, and it takes over 14 hours to drive from his residence to Thunder Bay; i. “Mr. Kulmiye has further advised counsel that his father is the only individual earning income in the family home at this time. Mr. Kulmiye advised that to have a surety travel with him and to pay for lodging in Thunder Bay from September 16 th to 20 th – in addition to stop along the drive to stay overnight – would cause an undue hardship on him and his family.”; and j. He would be alone in a room with a stable internet connection should he be permitted to attend remotely.
[11] In response, the Crown filed an affidavit from Robert Parsons, an assistant Crown attorney in Thunder Bay. Mr. Parsons deposed the following: a. Airfare and hotel costs for Mr. Kulmiye would be $1154.58; b. According to the Service Ontario website, there are several ways in which photo ID can be obtained without a passport; and c. Mr. Kulmiye has had reasonable notice of his trial date and the requirement for personal attendance.
Positions of the Parties
[12] Mr. Kulmiye argued that the court has discretion, pursuant to s. 715.24 of the Criminal Code [4], to allow an accused to attend remotely when the Crown does not consent. I asked for authority to support this argument and stood this application down until the end of the day to allow counsel to make submissions.
[13] Counsel for Mr. Kulmiye filed supplementary submissions relying on two cases: R. v. White [5], a decision of the British Columbia Supreme Court, and R. v. Haaima [6], a decision of the Ontario Court of Justice in a summary conviction proceeding.
[14] The Crown argued that, absent its consent, the Court has no jurisdiction to permit Mr. Kulmiye to appear via video conference at this trial since the requirement of consent is expressly provided for in s. 715.233. Alternatively, if the court does have jurisdiction to consider this application absent Crown consent, in accordance with s. 715.23(1), the Crown submits that this late application should be dismissed because these are serious charges and Mr. Kulmiye has had ample time to prepare for and make travel arrangements.
[15] Both counsel were unaware of a decision I wrote on a similar issue, R. v. Buckley [7], and were given an opportunity to review that decision before completing their submissions.
Analysis and Disposition
[16] The essential difference between the parties’ submissions is their interpretation of ss. 715.24 and 715.233.
[17] The Criminal Code was amended in 2022 [8] by Bill S-4. The relevant sections are set out below:
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.
Cessation 715.222 If the court allows or requires a person’s appearance or participation by audioconference or videoconference under this Part, it may, at any time, cease the use of those technological means and take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceedings.
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.
Preliminary inquiry 715.231 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at the preliminary inquiry.
Trial — summary conviction offence 715.232 The court may allow an accused to appear by videoconference at a trial for a summary conviction offence (a) if the accused is not in custody, with the consent of the accused and the prosecutor; and (b) if the accused is in custody, with the consent of the accused.
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.
Plea 715.234 (1) The court may, with the consent of the prosecutor and the accused, allow an accused to appear by audioconference or videoconference for the purpose of making a plea.
Limitation (2) The court may allow the accused to appear by audioconference only if it is satisfied that (a) videoconferencing is not readily available; and (b) the appearance by audioconference would permit the court to inquire into the conditions for accepting a plea of guilty under subsection 606(1.1) despite the fact that the court would not be able to see the accused.
Sentencing 715.235 (1) The court may, with the consent of the prosecutor and the offender, allow an offender to appear by audioconference or videoconference for sentencing purposes.
Limitation (2) The court may allow the offender to appear by audioconference only if videoconferencing is not readily available.
Proceedings not expressly provided for 715.24 In any proceedings in respect of which this Act does not expressly authorize the court to allow an accused or offender to appear by audioconference or videoconference or limit or prohibit their appearance by those means, the court may allow the accused or offender to appear by either of those means.
[18] In Buckley [9], I made the following observation with respect to Parliamentary commentary on these amendments:
Hansard may also be an aid in interpreting legislation but should be read with caution. Mr. Gary Anandasangaree (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada) made the following statements during Second Reading of the Bill:
The new measures addressing remote appearances include a consent requirement , so an accused person or offender and the Crown prosecutor would need to give their consent to appear in this way. In addition, all decisions to proceed virtually would be at the discretion of the court based on a number of factors the court would be required to consider. For example, courts would need to consider the right of accused persons or offenders to a fair and public hearing and the suitability of the location from which they would be appearing before allowing it.
I would also emphasize that the bill does not make virtual court hearings mandatory or change the general principle that all those who participate in criminal proceedings must physically be present in court unless otherwise authorized. Bill S-4 does not seek to replace in-person proceedings, which remain important, but instead offers alternative ways of proceeding where the technological means exist and when considered appropriate .
Bill S-4 would also enact clear safeguards to virtual appearances, some of which I have mentioned, such as ensuring judicial approval and consent of all the parties [Footnotes omitted]. [Emphasis in original].
[19] With respect to my colleagues in White and Haaima, I disagree that s. 715.24 provides broad discretion to allow remote attendance at trial. The Criminal Code is specific. The legislature has clearly identified which stages may be considered for appearance by videoconference, and further specified that consent of both the accused and the prosecutor would be required before the court may allow appearance by videoconference. These stages - plea, preliminary hearing, trial and sentence - all bear on the substantive conduct of the trial. Section 715.24 only applies to “proceedings” not “expressly authorize[d]”. Therefore, I conclude that where the proceedings are authorized, the consent of the Crown is required.
[20] If I am incorrect, I still would not allow Mr. Kulmiye to attend his trial remotely. This case is distinguishable from White, when serious health issues made the accused’s attendance impracticable.
[21] With respect to the s. 715.23 factors, all that is before this Court is counsel’s affidavit containing general statements concerning the hardship to attend trial and some steps taken to obtain identification. Nothing is stated by Mr. Kulmiye regarding his attempts to address these issues. I note that his release plan was altered to allow him to travel to and from work, but there is no mention of any income he has earned. The trial dates were set over seven months ago, and I agree with the Crown that this application is late. These are serious offences involving drugs exceeding $140,000 in value, cash of over $45,000 and a 9 mm handgun with 76 rounds of ammunition. Notwithstanding the challenges faced by Mr. Kulmiye in attending Thunder Bay for his trial, a remote appearance would not be appropriate having regard to all the circumstances.
“Original signed by”
The Hon. Mr. Justice W.D. Newton, R.S.J.
Released: August 30, 2024
Footnotes
[1] Mr. Yusuf has absconded and is believed to be in prison in Somalia: see R. v. Yusuf, 2023 ONCA 783. [2] Reasons on Criminal Standing Application, R. v. Kulmiye, 2024 ONSC 2649 at paras. 1, 9, 10, and 11. [3] See endorsement of Fitzpatrick J. dated January 30, 2024. [4] Criminal Code, R.S.C., 1985, c. C-46. [5] 2024 BCSC 255, at para. 71 (“White”). [6] 2023 ONCJ 180, at para. 17 (“Haaima”). [7] 2023 ONSC 3968 (“Buckley”). Originally unreported, now reported. [8] December 15, 2022. [9] Buckley, at para. 25.