HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 201

CITATION : R. v. Daley , 2020 ONCJ 201 DATE : April 22, 2020 BRAMPTON COURT FILE No .: 19-4249 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AARON DALEY Before Justice Paul F. Monahan Reasons on Ruling regarding plea by audio Heard on April 21, 2020 Reasons on Ruling released on April 22, 2020 S. Ferrone........................................................................ counsel for the Crown M.

Mattis.................................................................... counsel for the defendant MONAHAN J.: Introduction [ 1 ] The defendant Aaron Daley is proposing to plead guilty before me to one count of possession of a prohibited or restricted weapon contrary to section 95 (1) the Criminal Code . He is currently in custody at the Maplehurst Correctional Complex. He has been in custody since March 26, 2019. [ 2 ] I have pre-tried this case on at least three occasions including most recently on April 9, 2020. By the end of the pre-trial on April 9, 2020, the Crown and defence counsel advised me that Mr.

Daley wished to plead guilty before me as soon as possible and that the plea would be proceeding by audioconference call. A date of April 21, 2020 was set shortly thereafter again on the basis that he would be pleading guilty by audio. It would be more difficult for him to plead guilty by video as there are limited video facilities at the detention centre and in the Brampton courthouse where this case is being heard. Both the Crown and defence counsel as well as Mr. Daley wish to proceed by way of a plea by audioconference call. [ 3 ] Defence counsel Mr. Mattis has represented Mr.

Daley throughout these proceedings but he has done so without a designation on file. I raised the question of a designation with him at the last pretrial and he advised that since the COVID-19 pandemic he had been unable to see Mr. Daley in person. He confirmed that again today. [ 4 ] At the outset of the hearing on April 21, 2020, I raised the question of whether the plea could proceed by audio. I drew

counsels’ attention to the decision of my colleague Justice Downes in the case of R. v. Candelaria released April 17, 2020. Justice Downes concluded in that case that a self-represented accused could not plead guilty by telephone conference call but rather could only plead guilty in person or by video. [ 5 ] On April 21, 2020, I heard the oral submissions of counsel for the parties on the audioconference issue. Mr. Daley, the court (including court staff) and counsel participated by audioconference call to hear the submissions on this issue.

Both the Crown and defence counsel submitted that Candelaria was distinguishable because Mr. Daley was represented by counsel and Mr. Candelaria was not. [ 6 ] I gave an oral ruling that Mr. Daley could plead guilty and be sentenced by audioconference. I indicated that I would proceed with a plea and sentencing hearing on that basis with written reasons to follow on this issue by email to counsel. These are my reasons for that decision. Defence counsel Mr. Mattis has agreed to provide these reasons to Mr.

Daley. [ 7 ] I note at the outset that, as both counsel observed, the situation in the case at bar is somewhat different than that which was facing my colleague Justice Downes in Candelaria . The defendant in that case was self-represented. One of the conclusions Justice Downes appears to have reached in Candelaria was that a self represented person could not waive the requirements of subsection 650(1) requiring him to be present at his trial. In the case at bar, Mr.

Daley has counsel and counsel for both the Crown and the defence requested that I proceed to hear the plea and render the sentence by audioconference call. Mr. Daley expressly waived his right to be physically present in Court for his plea and sentencing as well as any right he may have to appear by video for these same purposes. Having said that, I don’t wish to be taken as necessarily agreeing that a self-represented person can never waive their right to be present in court for their plea. [ 8 ] Given that defence counsel Mr.

Mattis does not have a designation, there are significant similarities to the Candelaria decision. For example, as was the case in Candelaria , subsection 650.01(3)(c), which contemplates that the court may permit a plea of guilty through counsel who has been designated without the accused being present, is not available to assist the court and the parties in this case. [ 9 ] Nevertheless, I see two clear pathways as to how a plea by audioconference could be conducted under the Criminal Code . The first is subsection 650(2) (

b) and the second is

section 715.23 . I note that my colleague Justice Downes carefully considered both of these potential options in the Candelaria case and found that they were not available to assist with a plea by audioconference call in the case before him. Insofar as Justice Downes’

interpretations of subsection 650(2)(

b) and

section 715.23 might be said to apply to the case before me, I respectfully disagree with Justice Downes’ conclusions. The First Pathway: Subsection 650(2)(b) [ 10 ] The relevant statutory provisions on the s. 650(2)(b) “pathway” are as follows: 606 (1) an accused who is called upon to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others

(1.1) A court may accept a plea of guilty only of it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the pleas and mission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. … 606

(5) For greater certainty, subsections 650(1.1) and (1.2) apply, with any modifications that the circumstances require, to pleas under this

section if the accused has agreed to use a means referred to in those subsections. … 650

(1) Subject to subsections (1.1) to (2) and

section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

(1.1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuittelevision or videoconference, for any part of the trial other than a

part in which the evidence of a witness is taken.

(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for anypart of the trial other than a

part in which the evidence of a witness is taken, as long as the accused is given the opportunity tocommunicate privately with counsel if they are represented by counsel.

(2) The court may

a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that tocontinue the proceedings in his presence would not be feasible;

b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or

c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to standtrial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.(emphasis added) [11] Justice Downes in Candelaria was of the view that “while subsection 606 (5) incorporates those subsections permitting pleasby video, it does not incorporate the general provision in s. 650(2)(

b) permitting an accused to be out of court. In other words, when itcomes to taking a plea by a self represented accused, s. 606 allows for only two options: that the accused physically attend before thecourt or appear by way of video” (see para 11 of Candelaria). [12] With all due respect to Justice Downes, I have a different view. Subsection 606(5) is not an enabling or limiting subsection. Itbegins with the words “for greater certainty”.

Those words, as I understand them, mean that subsection 606(5) is a subsection wherebyParliament is effectively saying “for your information”, a plea is included in the term “trial” used in subsections 650(1.1) and (1.2) andmay be done by video. Subsection 606(5) doesn’t enable the plea to be done by video or prohibit a plea being done in some other waysuch as by audio. The provisions which allow the plea to be by video are subsection 650 (1.1) and (1.2), not subsection 606(5).

I repeatthat in my view subsection 606(5), being a subsection inserted “for greater certainty”, enables and prohibits nothing. [13] It is clear that

section 650 requires that an accused be physically present at his or her trial, unless an order is made undersubsection 650 (1.1), (1.2) or (2) or

section 650.01 (the counsel designation section) applies. Subsections 650 (1.1) and (1.2) permit theaccused in certain circumstances to appear by video except where evidence is being given by a witness. However, subsection 650 (2)(b)is even broader and permits the court to allow the accused to be completely out of the court room with no connection by video or audioeven when evidence is being taken from witness.

It is clear from the case law that the court’s discretion to permit the accused to becompletely absent from the trial should be exercised carefully. [14] Justice Downes in Candelaria quotes with approval the comments of Justice Dean in R. v. Walker, 2014 ONCJ 271 ,[2014] O.J. No. 2567 (C.J.) to the effect that “it would not be appropriate to interpret the broad, general discretion in paragraph 650(2)(b)as allowing what subsections 650 (1.1) and (1.2) exclude”. With respect, it is my view that subsections (1.1) and (1.2) “exclude” nothing.They only enable.

They do not and could not narrow the broad scope of subsection 650(2)(b). As I have already said, subsection 650(2)(

b) contemplates precisely that which is not provided for in (1.1) and (1.2) namely that evidence can be taken from a witness even whenthe accused is completely absent from the trial. [15] There is no doubt that subsection 650(2)(

b) appears to have been used almost exclusively in the reported cases to deal withcircumstances where an accused asks to be completely absent from his or her trial. For example, in R. v. Drabinsky, (ON SC), [2008] O.J. No. 3136, the defendant asked to be absent from his trial for a day for some unstated reason. He was representedby counsel who would be present in his absence. The presiding trial permitted the defendant to completely absent from his trial evenwhile evidence was being taken from witness. That could not have occurred pursuant to subsection 650 (1.1) and (1.2).

Having said that,can there be any doubt that if the defendant Mr. Drabinsky asked that he be permitted to be absent from his trial for a day but herequested that he permitted to listen to the trial by audio telephone, that subsection 650(2) (

b) would have permitted the trial judge toallow such participation if she wished? The answer must surely be yes. Similarly, if Mr. Drabinsky or some other defendant in anothercase had indicated that for good reason (medical reasons for example) the defendant could not be present for the first day of trial but henevertheless wished to have his trial go ahead in his absence, can there be any doubt that the trial judge could have permitted him to enterhis plea of not guilty by audio telephone? In my view, the answer must be yes. In this regard, I note that subsection 650(2)(

b) permits thetrial judge to have the accused out of court during “the whole or any part of his trial” (which must include a plea) “on such conditions asthe court considers proper” (which vests a broad discretion in the trial judge to impose or allow any conditions to ensure that justice isserved and must permit the judge to have the accused participate by audio). [16] In R. v. Butler, [1993] M.J. No 165, the Chief Justice of the Manitoba Court of Queen’s Bench used subsection 650(2)(

b) topermit a defendant who was seriously ill and could not attend personally to enter a plea of not guilty by way of a letter addressed andfaxed to the court (see para. 18 of that decision).

[17] In

summary on this point, while subsection 650(2)(

b) appears mostly to have been used to obtain the largest departurepossible from the requirements of

section 650 which require that an accused “shall be present in court during the whole of his or hertrial”, in my view there can be no doubt that subsection 650(2)(

b) could be used, in appropriate circumstances and where it is in theinterests of justice, to permit a plea by audioconference. [18] The failure to mention subsection 650(2) in subsection 606(5) is meaningless in my view. As I have said, subsection 606(5)is not an enabling or limiting subsection. [19] One might ask whether, if subsection 650(2)(

b) is as broad as I consider that it is, then why would Parliament have enactedsubsections (1.1) and (1.2)? If my view is correct, video and audio pleas could have done pursuant to subsection 650(2)(b). The answeris that there are distinguishing features which are present in subsections (1.1) and (1.2) which are different than the requirements ofsubsection 650(2)(b). It seems clear that subsection 650(2)(

b) requires the consent of the accused and this is reflected in the use of thewords “permit the accused”. That subsection does not require the consent of the prosecutor. On the other hand, subsection 650 (1.1)requires the consent of both the prosecutor and the accused. Subsection 650 (1.2) is just the opposite and does not require the consent ofthe prosecutor or the accused. The point here is that there are differences amongst subsections 650(1.1), (1.2) and (2)(

b) with each ofthem being relevant and applicable in somewhat different circumstances. [20] I appreciate that subsection 650(2)(b) (and (1.1) for that matter) involve an element waiver (see R. v. Fecteau (1989), (ON SC), 49 C.C.C. (3d) 534 (Ont. H.C.)). I also appreciate that it may be more difficult (although in my view notimpossible) to find such a waiver where the accused is self-represented as the accused persons were in Candelaria and Fecteau. In thecase at bar, Mr. Daley is represented by senior counsel. Defence counsel and Mr. Daley have expressly waived the right Mr.

Daley has tobe present in person for his plea and sentencing and any right he may have to request to be present by video. This is a significantdistinguishing feature from Candelaria and Fecteau. [21] The view is expressed in Candelaria that the judge needs to see the defendant in order to assess whether the plea is voluntary.A somewhat similar comment is made in Fecteau where the Court stated that the defendant needs to be able to see the entire court roomduring a plea.

If these observations were valid, how could a visually impaired judge ever hear a plea of guilty and how could a visuallyimpaired defendant ever enter a guilty plea even where the defendant appeared in person? [22] To summarize, even before the amendments of Bill C-75 which I will discuss below, it is my view that in the appropriatecase and where it is in the interests of justice, subsection 650(2)(

b) could be used to permit an accused person to plead guilty and besentenced by audioconference call. The Second Pathway:

Section 715.23 [23] The relevant statutory provisions related to the second “pathway” to a guilty plea by audio are as follows: 715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do sopersonally. 715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding byaudioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including byensuring fair and efficient proceedings and enhancing access to justice. 715.23

(1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, ifthe court is of the opinion that it would be appropriate having regard to all the circumstances, including

a) the location and personal circumstances of the accused;

b) the costs that would be incurred if the accused were to appear personally;

c) the suitability of the location from where the accused will appear;

d) the accused’s right to a fair and public hearing; and

e) the nature and seriousness of the offence.

(2) If the court does not make an order under subsection (1) it shall include in the record a statement of the reasons for not doing so.

(3) The court may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that thecourt considers appropriate in the circumstances to have the accused appear at the proceeding. [24] If I am wrong and the provisions of subsection 650(2)(

b) do not permit the trial judge to hear a plea by audioconference, I

am of the view that

section 715.23 permits such a plea to proceed on that basis. [ 25 ] Justice Downes in Candelaria concluded that the use of the words “except as otherwise provided in this Act” at the beginning of

section 715.23 effectively prohibits the taking of a plea by audio telephone conference. He states that “while there is no provision expressly forbidding a plea by telephone, it is implicitly prohibited by the combined effect of s.606 and s.650. Put differently, it is “otherwise provided in this Act” that a guilty plea by a self-represented accused not be permitted by telephone. It is therefore not open to me under s. 715.23 to permit Mr. Candelaria to plead guilty by telephone” (see Candelaria at para 23). [ 26 ] Again, with all due respect to Justice Downes, I have a different view.

I repeat the same point made above that in my opinion section 606(5) does not enable or restrict the method by which pleas can be taken. It is nothing more than a “for greater certainty”

section which adds nothing. [ 27 ] There is no express prohibition against a plea by audioconference under the Criminal Code . The Code must be read as a whole with the new amendments brought in by Bill C 75. It is my view that

section 650 goes part of the way towards introducing the use of technology and, in particular, videoconferencing, during the course of a trial including the taking of a plea.

Section 715.23 builds on the provisions of

section 650 by now allowing for audioconference as well as videoconference in a wide variety of circumstances including pleas. In my view, sections 606 and 650 are not in conflict with

section 715.23.

Section 715.22 is also instructive in this regard as it describes the use of audioconferencing or videoconferencing as serving the “proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice”. To interpret

section 650 as effectively prohibiting pleas by audio and then to conclude that it has been “otherwise provided’ in the Code that there can be no pleas by audio and that therefore 715.23 does not permit a plea by audio does not interpret any of these provisions in a manner that promotes access to justice. [ 28 ] If

section 650 and 715.23 were to be interpreted so narrowly as to only permit pleas by video and prohibit a plea by audioconference, then accused persons would not just find themselves in jail. They would find themselves in jail in something akin to a Franz Kafka novel. Take a person in a time served situation (not necessarily Mr. Daley’s situation). Prisoners are no longer being brought to court during the worldwide pandemic. All plea and bail hearings across the Province previously done in person are now being done only by audio and video.

However, most courts and correctional institutions have little videoconference capacity. Audioconferencing is more readily available. For example, I conducted the plea and sentencing in this case from my office telephone. There was no need for a courtroom or a correctional facility with video capabilities, just a telephone and a conference call number. If a narrow

interpretation of subsection 650(2)(

b) and

section 715.23 were to prevail excluding a plea by audioconference, an accused person in a time served situation who wishes to plead guilty by audioconference would be told that they have to serve more time. They would have to “get in line” and wait for a videoconferencing option or time slot to materialize. They would have to do this in a context where courts and jails across the Province are seeking to do what they have never done before namely have all prisoners appear remotely for substantive hearings.

To give a pop culture analogy, if a person in a time served situation could only plead guilty by video, they would find themselves in something like the Hotel California, they can check in, but they can’t leave. That is to say, if pleas had to be done by video only, cases would no doubt arise whereby people in a time served situation would be unable to plead and be sentenced and released in a timely way even when they have served all or more of the sentence they will ultimately receive. [ 29 ] I consider that the provisions of sections 650 and 715.23 should not be so narrowly construed.

I have dealt elsewhere with

section 650. In my view,

Section 715.23 permits the court to order an accused to appear by audioconference including for a plea and sentencing. Similarly,

section 715.25 permits the judge to participate by audioconference. I note that if a judge rejects the use of audio or videoconference under

section 715.23, the judge must provide reasons for doing so (see 715.23(2)). This is a further indication that Parliament is seeking to promote the use of video and audioconference because the judge must explain why he or she is not using it in any given case where it is sought to be used. Application to the Case at Bar [ 30 ] I consider that this is an appropriate case in which to permit a plea of guilty and sentencing by audioconference. Let me explain why.

I have touched on some of the practicalities of the situation above. [ 31 ] The world is now in the middle of a pandemic due to COVID -19. [ 32 ] The Ontario Court of Justice is seeking to fulfil its role in the judicial system by continuing to hear bails and in custody pleas, among other urgent cases. The Ontario Court of Justice in Brampton is known as being one of the busiest courts in the country. During the pandemic it continues to operate between 5 and up to 10 criminal courts a day (mostly bail courts and one or more plea courts). Judges conduct plea courts and hear some “special long bails”.

Justices of the Peace sit in bail courts where they hear both “regular” and “special long bails”. In most cases, the Judges and the Justices of the Peace are operating from outside the courtroom by telephone. In some cases, while keeping the telephone line open, “Zoom” video technology is being used. [ 33 ] During the pandemic, prison escort officers are no longer bringing prisoners to court. Crown attorneys and defence counsel are no longer appearing in person in courthouses across this province. In Brampton, they appear by audio or Zoom video.

The Zoom video is generally only used to have counsel and the judge access the courtroom remotely. There is no direct Zoom connection with the prisoner. The accused is linked with the courtroom either by audioconference or a separate VPN video link. The ability for courts and correctional facilities to link to one another by video is limited, although efforts are clearly being made to increase the availability of such links. [ 34 ] In Brampton, prior to the pandemic there was one video court operating for a half day each day dealing with remands only.

Now, because no prisoners are coming in person, every attendance for substantive hearings such as bails and pleas, must be by video or audio. [ 35 ] What is happening in Brampton is happening in other OCJ court houses across the province namely that substantive in custody cases are now all being heard by audio or video whereas virtually all would have been previously heard in person.

[ 36 ] Detention centres where inmates are housed are also facing significant challenges during the pandemic. While facing the COVID 19 threat, they must deal with multiple courthouses seeking to have in custody persons appear by video or audio and there are limited video suites at the detention centers. [ 37 ] The result is that it is a challenge to get any prisoner to appear by audio or video because the justice system, which previously operated almost entirely by in person hearings, is now seeking to operate entirely by audio or video hearings. [ 38 ] Mr.

Daley is but one person who finds himself in custody in the circumstances outlined above. As indicated, I pre-tried the case at least three times. In order to have Mr. Daley appear by video, there would have had to be some delay in arranging for that to happen because video attendances are at a premium with multiple courthouses and detainees “competing” for both video and audio appearance time. [ 39 ] I had regard to the provisions of 715.23 in arriving at my decision to permit the plea and sentencing to proceed by audioconference. In particular, Mr.

Daley has been in custody for over a year and he and his counsel indicated that he wished to plead guilty by audio. He took the position that he was in a time served situation. At the time of deciding to hear the plea by audio, I had reached no conclusion in this regard. I understand that Mr. Daley was anxious to have his plea heard and sentencing rendered. I also understand from his counsel that Mr. Daley is and was also concerned about the risk of continued incarceration during the COVID 19 pandemic. [ 40 ] I agreed to have Mr.

Daley appear for his guilty plea and sentencing by audioconference with his counsel, the Crown and the court as well as a court reporter and a court clerk participating in the same way. The accused has a right to a fair and public hearing as indicated in 715.23 (d). It is also a fair observation that the audioconference telephone system promotes greater accessibility of a court case to the public than the videoconference system. Any member of the public including the media can telephone into the audioconference. Participation of the public is not as easily achieved if the matter is conducted by video.

Access to the courthouse in Brampton is very limited during the pandemic and members of the public cannot enter except by special permission. The public can more easily access the hearing by audioconference as of right as the audioconference number is available through the trial coordinator’s office. [ 41 ] I also considered that the charge that Mr. Daley faced was a serious one namely a

section 95 possession of a restricted or prohibited weapon offence. Counsel provided case law and other materials by email to the court and I have no doubt that a fair hearing could be and was conducted by audioconference. By proceeding by audioconference in this case, the court has attempted to promote access to justice by allowing Mr. Daley to have his case heard in a timely way.

Summary [ 42 ] For the reasons outlined above, I am of the view that there is authority under subsection 650(2)(

b) and

section 715.23 to hear the plea in this case by audioconference. For the reasons given, this is an appropriate case for the court to exercise its discretion to hear the plea and conduct the sentencing by audioconference and I have proceeded to hear the plea and conduct the sentencing by that method. Dated: April 22, 2020 __________________ Justice Paul F. Monahan