R. v. S.F., 2023 BCPC 222

Citation: R. v. S.F. 2023 BCPC 222 Date: 20231017 File No: 43600-2-K Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. S.F. Ban on Publication pursuant to s. 486.4(1) and 486.4(2.2) of the CCC RULING ON APPLICATION THAT ACCUSED HAS ABSCONDED OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: T. Morgan Counsel for the Defendant: E. Chesterley Place of Hearing: Courtenay , B.C. Date of Hearing: October 16, 2023 Date of Judgment: October 17, 2023 INTRODUCTION

INTRODUCTION [ 1 ] On April 14, 2023 we had completed a number of days of this trial. There had been a number of appearances leading up to the trial dates. [ 2 ] This case has a complicated procedural history. Prior to being seized with this trial, I understand it was in the British Columbia Supreme Court for the purposes of completing a preliminary inquiry.

I am told that after the completion of the preliminary inquiry, the accused re-elected to proceed in the British Columbia Provincial Court. [ 3 ] There were countless applications brought by this accused. [ 4 ] This accused was sometimes represented by counsel and sometimes not represented by counsel. THE TRIAL [ 5 ] After a number of days of trial the Crown closed its case. As part of the case the Crown called, the complainant E.F. as a witness. This witness was essentially the ‘main’ witness for the Crown. A senior experienced lawyer had been appointed to cross- examine her.

That lawyer and the accused were present from the beginning of the Crown’s cases to the conclusion of their case. [ 6 ] The lawyer was excused from the trial as he was required in a different court. Moments later, I turned to the accused to see whether it was his intention to call any evidence on his behalf. [ 7 ] The accused indicated that he wished to provide evidence by taking the stand.

A few seconds prior to taking the witness stand, the accused said that he had also retained the lawyer who had just finished cross-examining the complainant to come back on another day to act as his lawyer during the cross-examination process. [ 8 ] Rather than start and stop the chief-examination and cross-examination process with the accused, the trial was adjourned so that he could continue to be represented by his counsel of choice. Unfortunately, due to scheduling issues with the accused’s calendar, October 16, 2023 was the first available trial time available to continue the trial.

In Provincial Court, in my view, this delay and any further delay needs to be considered today. [ 9 ] By my direction, four additional days were scheduled to complete the trial. In my view, one or two additional days would have been ample time. However, I was aware that the accused lived in England and I wanted to ensure enough court time was scheduled to avoid another unnecessary adjournment. As well, the accused has been a complicated litigant and more often than not, a simple task required extensive court time. [ 10 ] On October 5, 2023 I received an email from the court registry.

The court registry had received an email from the accused in this case. In the email, the accused requested many items, such as transcripts for all prior court appearances. There has been a barrage of requests for subpoena’s. For our purposes today, I do not need to get into how frivolous many of these requests have been. [ 11 ] In the desk order refusing the requests, I noted that the trial date was approximately five business days away. I ordered the trial would continue on October 16, 2023, as planned. I ordered that the accused was required to attend the continuation of the trial in person.

I made this clear, as his last minute and unreasonable application led me to believe the accused had no intention on being present on October 16, 2023. Alternately, I was of the view that if he was present, he would try to delay the trial through some other applications. [ 12 ] On October 16, 2023 at 9:30 AM neither the accused nor the lawyer attended court. The matter was stood down until 10:00 AM and the eventually the accused’s lawyer attended court. [ 13 ] I was told that his client was not present, was not in Canada, and would not be attending court.

I was told that his client wanted to be let into the proceedings on Microsoft TEAMS but not for the purpose of continuing with the trial. I was told the accused could not proceed with his trial as he had to review materials with his lawyer and physically be present to refer to different documents in the trial process. [ 14 ] I made it clear a number of times that the accused needed to be physically present for his trial. [ 15 ] Counsel submitted that his client was not allowed to fly back to Canada for some reason beyond his control.

I say ‘submitted’, as there is no evidence before me that supports this position taken by the accused. The accused claims to be on some sort of ‘no fly’ list. There has been no affidavit material, documentary evidence or any other evidence that supports this position. [ 16 ] Counsel handed up a document titled “NOTICE PURSUANT TO THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ”. The document seeks a judicial stay of proceedings as a result of the accused being denied his right to attend his trial. There is no supporting affidavit. The application is summarily dismissed.

There is nothing to support that the application has any merit whatsoever. [ 17 ] The documents provide some support that some steps were taken to purchase an airline ticket. Defence counsel submits to the Crown that the accused did not attempt to catch this plane, and instead, chose to cancel the ticket. It appears that this ticket may have been issued on October 6, 2023 and would have landed in British Columbia in time for the trial.

I note the attempt to book a ticket only took place around the same time that the multiple requests from the accused were denied. [ 18 ] There has been no application to appear at this trial by alternate means, such as TEAMS or telephone, though I am aware that the accused has been trying to convince the court registry to open up a TEAMS link for him, even though he has intentionally not requested permission from the court. Counsel was advised of this a number of times and declined to make the application. It would be dangerous to speculate what the outcome of such an application might have been.

[19] On October 16, 2023 at approximately 11:30 AM the Crown made an application for a bench warrant for the accused’s non-attendance to court. The Crown requested time to consider whether a fail to appear charge is to be approved or not. [20] The trial was adjourned to October 17, 2023 at 9:30 AM to consider whether the warrant should be issued and whether I am ofthe view that the accused has absconded. If he has absconded, then it is open for this court to complete the trial and move on to theverdict stage, and if necessary, sentencing stage. [21] The British Columbia Court of Appeal decision R. v.

Taylor [2010] B.C.J. No. 342 was provided by the Crown. In Taylor atparagraph 7 and 8 the court confirms: [7] Under s. 475 of the Criminal Code, where an accused absconds during the course of his trial, he is deemed to have waived hisright to be present at his trial, and the court may continue the trial and proceed to find the accused guilty in his absence. [8] It is common ground that the meaning of “absconding” for the purpose of s. 475 is as defined by Martin J.A. in R. v.Garofoli (1988), (ON CA), 41 C.C.C. (3d) 97 at 141 (Ont.

C.A.), affirmed on this point (SCC),[1990] 2 S.C.R. 1421 at 1469: ... the word “absconds” in s. 431.1 [now 475] means more than mere failure to appear. In my view, the word “absconds” imports that theaccused has voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention ofavoiding its consequences.

Proof that the accused deliberately absented himself from the trial would of course permit the drawing of aninference as to the necessary intent. [22] Very helpfully, the court guides me and instructs me that I should make inquiries about and consider whether the accused’s failto appear is for the purpose of impeding or frustrating the trial or with the intention of avoiding its consequences. [23] The Crown also has provided the R. v. Khiar [2021] O.J. No 7597 from the Ontario Supreme Court. At paragraph 14, the justicein Khiar confirms that R. v. Garofoli et al

(1988) CanLII 3270, is the leading case when dealing with issues around an accused that isfound to have absconded. [24] At paragraph 18 the court in Khiar comments on the mens rea requirement of ‘purpose’. The court refers to appellate authoritiesthat confirm that “a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when heforesees that the consequence is certain or substantially certain to result from his conduct.” [25] I found the analysis in R. c. Elsayed 2019, QCCQ 3005 , written by The Honourable Salvatore Mascia very helpful.

In aruling deciding whether to proceed with a trial in abstentia the court considered a number of factors. ANALYSIS [26] I appreciate that an accused person in Canada has a fundamental right to be present at trial. In Canadian criminal law, beingpresent is an important part of what makes a trial “fair”. [27] The Criminal Code provisions under

section 475 seems to provide statutory qualifications on the right to be present at your trial. Essentially, if an accused person “absconds” in the middle of a trial, then they are essentially waiving their right to be present. [28] What is not in issue? Clearly we are in the middle of a trial. Clearly the accused is not present. Crown’s Case [29] I note that the Crown has closed its case. Counsel and the accused were present for the whole of the Crowns case. Each Crownwitness was cross-examined. Thus, this is not a case where the Crown’s evidence was unchallenged.

The reliability of the Crownsevidence has been challenged, which to me supports the idea that the confidence in the administration of justice is not eroded if weproceed with the trial. Even if the accused was here, he might advise he wishes to assert his right to remain silent and not testify. In anyevent, whether he takes the stand or not is his choice. His choices are limited when he does not show up for his trial. Delay/Stress of Complainant [30] It has taken nearly three years to get this to this stage of the trial.

The complainant testified nearly half a year ago, and she isentitled to have this matter dealt with in a fair and prompt manner. Delay/Accused [31] The accused has a right to a timely trial. The accused, like the complainant, has been waiting for nearly three years to have thismatter concluded. [32] Further delay will potentially affect memories, as memories can fade with time. [33] I expect trial continuation dates would be well into 2024, as I do not expect any dates to be available for the rest of this year.

Cost to Court [34] The court has spent a significant amount of time and resources on bringing this matter to trial. It has been extremely timeconsuming and court time has been allocated to complete this trial. It took nearly six months to locate this court time. Securing anotherfour days would be also complicated and no doubt cause more delay and tie up more resources. [35] Did the accused abscond? I conclude that the accused has deliberately absconded from this trial.

[ 36 ] He knew a long time ago that this date was set. Yet he chose to go back to England, where he lives. Prior to going back to England the accused knew that his Canadian passport had been detained by Canadian immigration authorities in November 2022. I understand that with planning, he has and can travel to and from Canada with his British passport. [ 37 ] As I generally try to keep up with written judgments, I noticed that there was a recent judgment in October in the British Columbia Supreme Court involving this accused.

For our purposes today, I do not think I need to get into the details of that matter, which I understand is still before the courts. However, I note that the accused did not appear in court on that matter. A number of other lawyers, representing a number of clients, did appear. [ 38 ] The accused knew that he had to personally appear to continue the trial date. [ 39 ] A recent order of this court directed, by way of a reminder, that he needed to attend the trial date in person. [ 40 ] Only after this direction, and perhaps on the very same day, does it appear that he made any efforts to purchase a plane ticket.

Once more, any effort was minimal when one considers he chose to cancel the ticket. [ 41 ] I am not satisfied that the accused made any sincere efforts to come to his trial continuation date. It is not merely this accused’s lack of attendance at court that brings me to this conclusion. That is but one factor. [ 42 ] In my view, and my experience with this accused, the overall conduct of this accused has been solely consistent with a person who has been trying to frustrate the justice system process.

For example, his requests for disclosure range from information to do with police agencies planting surveillance software on some of his personal property to even more outlandish claims. He has repeatedly suggested that the complainant in this case was somehow having an illicit affair with any number of individuals, including police officers who investigated the accused in this case. [ 43 ] There is a conspiratorial aspect to most of his requests and interactions with the court.

He has made it clear through his actions that he somehow believes that the crown, police and indeed the justice system, including this court, are somehow conspiring against him. [ 44 ] At first blush, I was surprised that this accused was so litigiously combative. I found that most of his requests were unreasonable, and that he was constantly being extremely difficult. It think it worth noting, that in the 31 years of being in the legal field, this accused is by far the most high conflict person that I have had contact with.

Whether that contact had to do with me prosecuting, defending, or judging. [ 45 ] Very quickly I gave the benefit of a doubt to the accused and adopted the judicial conclusion that maybe the accused was not being deliberately rude, abrasive or confrontational. Maybe he was just trying to defend himself to the best of his ability. After all, he is entitled to a fair trial and entitled to have his day in court.

This has been my preferred judicial default position. [ 46 ] That is why these court dates were scheduled . [ 47 ] I think it is useful to echo the words in El Sayed starting at paragraph 86: —Societal interest in proceeding [86] A trial in abstentia doesn’t sit well with our adversarial form of justice—and more particularly with an accused’s fundamental right to be present at his trial and to confront the witnesses against him. Judges should be reluctant to order trials in abstentia unless the interests of justice to proceed clearly outweighs the interests of the accused who has absconded. [87] . . .

Justice delayed is justice denied [88] It is in the public interest that criminal proceedings should be prosecuted with dispatch. As the Court explained in Jordan , supra, at paragraphs 25 and 26 : Timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin , “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community.

Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (see Askov , at p. 1220). Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221). Extended delays undermine public confidence in the system.

And public confidence is essential to the survival of the system itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” ( Askov , at p. 1221). CONCLUSION [ 48 ] I find that the accused has absconded from this trial. It would be speculative to conclude that he is on some sort of ‘no fly list’. There is no evidence to support this conclusion.

The fact is that he has not attended his trial in person, made minimal to no effort to attend in person and chose to cancel the very plane ticket that could have brought him to the trial date. [ 49 ] It is not as if he made his way to the airport only to be turned away. As well, no ticket was booked earlier. This leads me to also question whether he ever had the intention to show up on the scheduled dates. Certainly not booking a ticket at the earliest reasonable opportunity seems reckless and unreasonable for a person who is trying to attend a court date.

[ 50 ] His overall conduct of his case has been consistent with a person who is trying to frustrate and impede the court process.

His numerous applications, including his most recent email request for disclosure, prior allegations of political and judicial impropriety are also consistent with a view that he is trying to impede the course of justice. [ 51 ] While there is not enough information for me to consider this point more fully, perhaps now that the Crown’s case is complete, he is of the view that the case is strong enough to warrant a verdict of guilt and a conviction might have an unwanted effect on his life or career.

Is it possible he is simply trying to avoid consequences? [ 52 ] I am of the view that this case should continue to verdict as the interests of justice to proceed with the trial outweighs the right of the accused to be present for the remainder of his trial. [ 53 ] This trial will proceed even though the accused is absent. __________________________ The Honourable Judge A. Wolf