R. v. White, 2024 BCSC 255

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. White, 2024 BCSC 255 Date: 20240214 Docket: 33922 Registry: Vancouver Rex v. Brent Steven White Before: The Honourable Justice Maisonville Ruling Re: Application to Attend Trial by Videoconference Counsel for the Crown: C. Smith C. Mackenzie Counsel for the Accused: B. Anderson T. Armstrong Place and Dates of Hearing: Vancouver, B.C. January 31 and February 2, 2024 Place and Date of Ruling with Written Reasons to follow: Vancouver, B.C. February 5, 2024 Place and Date of Written Reasons: Vancouver, B.C.

February 14, 2024 introduction [ 1 ] The applicant, Brent White, is charged with the second-degree murder of Justis Daniel. The applicant brings an application to the court for an order pursuant to ss. 650(2) (b), 715.23 , and 715.24 of the Criminal Code , R.S.C. 1985, c. C-46 , that he be permitted to attend portions of his trial by videoconference where he is not giving evidence. [ 2 ] The applicant is charged with the second-degree murder of Justis Daniel. Mr. Daniel, the caretaker of Tatlow Park on the west side of Vancouver, was found dead inside his cottage located in Tatlow Park on December 10, 2021.

The trial is estimated to run for two months. On February 1, 2024, with the Crown’s consent and following an inquiry of the applicant by the Court, the applicant re-elected from trial by jury to trial by judge alone. [ 3 ] On February 5, 2024, I allowed the application with reasons to follow. These are those Reasons. positions of the parties The Defence [ 4 ] The applicant seeks to attend court by way of videoconference for portions of his trial.

He deposes and submits that he will not be able to meaningfully participate in the trial if he has to be transported for at least two-and-a-half-hours every day to and from the North Fraser Pre-trial Centre (“NFPC”) where he is presently detained. He suggests that the pain caused by his transportation to and from NFPC on a consistent basis will be too significant to allow for his meaningful participation. [ 5 ] The applicant, who is 53 years of age, suffers from chronic pain having been involved in a serious motor vehicle accident in 2011 and other incidents thereafter.

In addition to chronic pain, the applicant suffers headaches, including migraines, and has mobility issues requiring, at times, the use of a cane. The Crown

[ 6 ] The Crown does not dispute that the applicant suffers from chronic pain. It is the position of the Crown, however, that, in essence, options remain available to the applicant to ease any pain caused by the transportation, both as a matter of the transportation arrangements themselves and of medical options available to the applicant.

The Crown submits that the remedy sought is exceptional and not justified on the evidence presented, given, in part, the seriousness of the charge. [ 7 ] The Crown submits that the applicant has not sufficiently tested the accommodations made for him in his transportation arrangement.

On the day the applicant references when complaining of the pain transportation causes him, the transportation took five hours due to exceptionally poor weather. [ 8 ] The Crown also submits that the applicant has not tried all of the pain medications that might assist him and, consequently, he should try all available means of dealing with his pain before this application is granted.

Moreover, the Crown queries whether, as the applicant worked as a unit cleaner at NFPC which would require a degree of physicality, the applicant’s condition is as severe as he claims. [ 9 ] More broadly, the Crown is concerned with the applicant’s awareness of the proceedings if observed via videoconference, and his ability to communicate with counsel throughout the proceedings.

Medical records and institution [ 10 ] Before the Court were certain records of the applicant's surgical procedures, his PharmaNet records, his Client Profile Report from NFPS, and a partial transcript of proceedings at the Provincial Court. The applicant also tendered his affidavit of January 28, 2024 setting out his health history and concerns.

The applicant indicates that the 2011 motor vehicle accident left him with severe chronic pain and neck pain as well as chronically occurring headaches and migraines. [ 11 ] Attached to the applicant’s affidavit was an EMG/Nerve Conduction Studies Report, dictated April 13, 2012, in which the applicant indicated that he had a history of paresthesias in his left arm since the 2011 motor vehicle accident. In that report, the doctor, Dr. Johnston, indicated: […] He had neck pain the next day [following the accident which occurred May 14, 2011].

He says the neck pain has persisted, and has resulted in pain down his left arm. He has chronic headaches and these wake him up through the night. He reports tingling in the fourth and fifth finger of the left hand, with pain that extends down to the elbow [...] […] Currently his pain is severe enough that he requires Dilaudid 4 mg once or twice a day. He is also taking naproxen 500 twice daily. [ 12 ] Dr. Johnston also noted that the applicant had a degenerative change throughout his cervical spine with a disc protrusion at C4/5. At that time, Dr.

Johnston did not believe the applicant required surgical treatment of his cervical spine. Dr. Johnston, instead, recommended treatment of the applicant’s ulnar neuropathy to avoid compression and hyperflexion of the applicant’s left elbow. A left elbow sleeve or elbow brace would be helpful, he noted, which was to be worn at night for 12 weeks. Dr.

Johnston believed this would result in significant improvement in the applicant’s ulnar nerve symptoms and that he would not require surgical treatment. [ 13 ] Also exhibited to the applicant’s affidavit were his PharmaNet printouts showing the history of pain medication he has taken in connection with his symptoms following the motor vehicle accident. The medications include, for example, Codeine, Hydromorphone, Naproxen, Tylenol with Codeine, and Dilaudid.

The PharmaNet records before, representing prescriptions for which British Columbia PharmaCare has paid a portion of the cost, do not detail any prescriptions after October 14, 2017 despite having being ordered for the period from January 1, 2010 to October 31, 2023. [ 14 ] In February 2012, the applicant was seen by Dr. Charles G. Fisher, who noted that following the 2011 motor vehicle accident, the applicant experienced neck pain and left shoulder pain, and that his pain extended down to the fourth and fifth digits in his hand. Dr.

Fisher noted that the applicant had undertaken a left C5 nerve root block, which decreased his left arm symptoms. Following his physical examination and a review of his imaging, Dr. Fisher formed the impression and plan that if they were to treat the applicant’s C4-5 disc herniation surgically and decompress the left-sided C5 nerve root, “he would likely have decreased left shoulder pain” but that this did “not seem to be his primary complaint”. Rather, the applicant’s “primary complaint […] [was] of neck pain which is left and parasagittal and seems muscular in nature”. Dr.

Fisher wrote: I tried to be as clear as possible as well to say that neck surgery would not alleviate his neck pain per se. [ 15 ] The applicant was again seen by Dr. Fisher on April 15, 2013. The applicant complained of a deep ache that he felt constantly in the left shoulder that increased with head movement. Moreover, his range of motion was limited. Dr. Fisher determined that the most responsible diagnosis for the applicant was a left-sided disc herniation at C4-5 with left shoulder pain due to the disc herniation. [ 16 ] Dr.

Fisher noted that the applicant was now taking Hydromorphone 8 mg by mouth every morning and 4 mg in the afternoon, as well as Oxazepam at night. The applicant was additionally taking Lyrica which was not helping his neck and shoulder pain but just relieving the twitching that he had. Dr. Fisher ordered updated imaging, but still did not feel the applicant was a good surgical candidate. [ 17 ] The next medical record of import was the operative record of a Dr. Peter J. O'Brien, with a consultation date of August 8, 2014.

At this point, the applicant had suffered a fall and sustained a distal humorous fracture earlier that month. Dr. O’Brien diagnosed the applicant with a left distal humerus fracture and planned to proceed with an open reduction and internal fixation of the distal humerus. [ 18 ] The plaintiff’s next injury was from another fall in which he injured his left elbow when he slipped and fell, landing on that elbow. This was the same elbow that Dr. O’Brien had previously operated on and the result was further surgery. The applicant was

treated with open reduction and internal fixation with tension band wire. [ 19 ] Ultimately, on March 7, 2016, the applicant underwent spinal surgery at the Royal Columbian Hospital. The admission diagnoses made on his chart were (1) mechanical neck pain, and (2) left arm cervical radiculopathy. Dr. Michael Nikolakis, a neurosurgeon, noted in his surgical report (in part): Mr. White was electively admitted to the Royal Columbian Hospital March 7, 2015 [ sic ].

He underwent a successful C4-5 cervical disk arthroplasty. [ 20 ] On May 6, 2016, the applicant underwent removal of hardware in his left elbow as well as manipulation under anesthesia and ulnar neurolysis owing to a stiff left elbow with symptomatic hardware. [ 21 ] The applicant’s Correctional Health Services Client Profile Report was also before me. [ 22 ] When the applicant was first seen in-house at NFPC, he gave a history of generalized bone/spine pain as well having been previously on medical marijuana and hydromorphone.

On April 27, 2022, the applicant complained of poor mobility relating to spinal cord injury and requested a can. The plan reads as follows: No history of spinal code [ sic ] injury. Client has a history of back pain for which he previously used medical marijuana. Since being in custody, he has refused all medications for his symptoms. Cane not indicated. [ 23 ] It is clear, however, from the earlier medical records that are before the Court that the applicant in fact had surgery at his C4-5 cervical spine to deal with that disc issue. There is also clearly history of complaints.

It was noted that chronic mobility issues related to the 2011 motor vehicle accident existed. [ 24 ] In May 2022, the applicant was approved to use a cane for a period of time by the attending physician at NFPC. [ 25 ] Respecting his transportation to and from Provincial Court on January 10, 2023 for his preliminary hearing, the applicant complained of “MSK aches and pains from ride to court”. The applicant was given pain relief for that. Then again, on January 19, 2023, the applicant complained of “MSK pains—remain stiff/sore—using Tylenol and Naprosen—[…]”.

The applicant noted his pains were acute and chronic, and that he had been working addressing these matters with his general practitioner whose name he was unable to remember. [ 26 ] On both January 19 and 20, 2023, it was noted by the attending physician that “there was no collateral on chronic back pain, however lots of chronic neck pain”. The physician also noted chronic neck and arm/elbow pain and referred to the Operative and Outpatient Clinic Notes.

On January 27, 2023, the applicant reported that he had previous neurosurgery consults, as are before the Court as set out above. [ 27 ] On March 14, 2023, the attending physician noted in his assessment of the applicant that the applicant had chronic pain but he declined Tylenol, NSAIDs, and topical NSAIDs as muscle relaxants. The applicant told the physician that he had suffered adverse reactions to certain medications before and that the only medications that previously helped were Dilaudid and Nabilone.

The applicant agreed to restart Tylenol and to try Carbamazepine again as an adjuvant for neuropathic pain which was the earlier medication that he had difficulty with. [ 28 ] The applicant was provided with Tegretol (also known as Carbamazepine) in early 2023, but he complained of headaches from the medication, which he consequently refused to take. The medication was refused by the applicant on March 18, 2023 at bedtime, for example, and the comment indicated that the applicant had said: “I am having headaches from this medication”. Consequently, there was a physician appointment booked.

Reasons for subsequent refusals were largely not commented on. [ 29 ] The applicant was also referred to Dr. Nikolakis, who was the surgeon for his C4-5 arthroplasty in 2016. The physician seeing the applicant at NFPC noted “[n]ow in custody at NFPC. Presenting to me with recurrent/worsening our radicular neck pain as well as acute chronic low back pain and sciatica. Known degenerative disc disease”. The physician asked Dr. Nikolakis to review the applicant for surgical intervention. [ 30 ] On May 9, 2023, a fax was received from Dr.

Nikolakis stating that the applicant needed a CT scan for an appointment referral. The applicant was again seen by the physician at NFPC on May 19, 2023. The applicant asked about his severe spinal condition from the 2011 motor vehicle accident and was also requested help with his neck, back, leg pain (he requested Dilaudid, or CDC, THC). The attending physician indicated that he was waiting to hear back from Dr.

Nikolakis. [ 31 ] On May 19, 2023, the attending physician assessed the applicant as having “known degenerative disc disease” and stated that the applicant was refusing a number of medications, including Carbamazepine.

The applicant requested opioid aids and cannabis but was refused as neither “were evidence-based clinically indicated as first-line therapy, or recommended as safe within the corrections medicine environment.” [ 32 ] On May 26, 2023, a note indicated that the applicant was refusing to go to a CT scan appointment, which states “I will not go because I will only go if my neurosurgeon requires it, not [the NFPC physician]. It is a degenerative problem, I don’t see the reasoning that this is needed, I had imaging done a few years ago”. [ 33 ] On July 17, 2023, the applicant indicated that he refused to see Dr.

Nikolakis as he was “not a spine specialist”. The applicant did not accept the explanation that he was the neurosurgeon who previously operated on his spine is in fact “a spine specialist”. Given the applicant’s refusal to take the medicines offered, his “verbally abusive nature”, and the offer to have a referral to Dr. Nikolakis, the physician at NFPC's plan was “no further appointments regarding client's chronic neck and back pain are needed”.

[ 34 ] The applicant refused imaging of his spine on July 26, 2023, and indicated that he wanted to be treated by his “own doctor”. [ 35 ] On August 1, 2023, a chart review was performed by another physician and he noted the refused imaging appointment by the applicant. On the same date, the applicant refused to sign a refusal form, indicating “I will not sign that. I don’t want anybody seeing my medical, I want my own doctor. I did not refused [ sic ]. I just want my own doctor”.

It appears, however, that the applicant later signed the refusal. [ 36 ] On October 13, 2023, it was noted that the applicant had “refused referral to several consultants familiar with his case”. However, a review of the notes before the Court indicated that the applicant only directly refused to see Dr. Nikolakis. [ 37 ] Issues with respect to transportation were also recorded in the Client Profile Report. When the applicant attended his preliminary inquiry at the BC Provincial Court in January 2023 following his arrest on March 26, 2022, the applicant found the transport very painful.

He was seated on a hard metal seat and was shackled hand and foot. He instructed his then counsel to ask the court if he could appear remotely by video. This was refused by the presiding Judge because of the scarcity of videoconference capability. On the second day of the preliminary inquiry, the applicant consented to his committal and two further days of evidence were cancelled. [ 38 ] Prior to the commencement of the trial in this matter, in the course of pre-trial conferences that were held which the applicant attended remotely, he made a request to attend remotely for his trial.

At that time, the issue of transportation was addressed. After review with the sheriffs, it was determined that the applicant could be transported in a separate vehicle with cushioning on the seat. While security remains a matter of the sheriffs’ discretion, it was requested that, if possible, the accused not be shackled. [ 39 ] On one occasion where the applicant was required to attend this Court in person, he was not shackled nor handcuffed in transit. On that day, there was a heavy snowfall in Vancouver and the transport back to the NFPC regrettably took approximately five hours due to bad traffic conditions.

The applicant was also handcuffed for this portion of his transport. [ 40 ] The applicant deposed that he, as a result of the transportation to and from this Court, was in excruciating pain and suffered from very serious migraine headaches. He deposed: I do not believe that I will be able to attend court on a daily basis for any extended period of time. I believe if I am subjected to daily transport to and from court, I will suffer significant pain and potentially migraine headaches that will severely limit my ability to concentrate on the proceedings and to defend myself against the serious charge.

I am also very concerned that my trial will be disrupted. [ 41 ] When the accused was transported to this Court the first day of trial on arrival, he was assessed by the sheriffs. The applicant was offered a wheelchair, which was used to bring the applicant into the courtroom. the accused’s waver of his right [ 42 ] The applicant waived his rights under ss. 650 of the Criminal Code to attend his trial in person, indicating that he was doing so freely and voluntarily.

The applicant confirmed that he had received legal advice and indicated he would not advance any ground of appeal that directly or indirectly flowed from his absence from court. applicable criminal code sections [ 43 ] The key provisions in this application are ss. 650 , 715.23 and 715.24 of the Criminal Code . Amendments were made in respect of these sections and the surrounding regime in

An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures) , S.C. 2022, c. 17 [ 2022 Amendments ]. [ 44 ] Section 650(1) provides: Accused to be present 650(1) Subject to subsections (1.1) and (2) and

section 650.01, an accused, other than an organization, shall be present in court during the whole of their trial, either in person or, if authorized under any of sections 715.231 to 715.241, by audioconference or videoconference. Previous to the 2022 Amendments, this

section read: 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. […] Exceptions

(2) The court may […] (

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; […] […]

[ 45 ]

Section 715.21 provides: 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. Previous to the 2022 Amendments, this

section read: 715.21 Except as otherwise provided in this Act, a person who appears at, participates, in or presides at a proceeding shall do so personally. [ 46 ]

Section 715.22 provides: 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. [ 47 ]

Section 715.221 provides: 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. [ 48 ]

Section 715.222 provides: 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. [ 49 ]

Section 715.23 provides 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. Previous to the 2022 Amendments, this

section read: 715.23(1) Except as otherwise provided in this act, the court may order an accused to appear by audio conference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

a) 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 events. [ 50 ]

Section 715.233 provides 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.

[51]

Section 715.24 provides: 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 appearby audioconference or videoconference or limit or prohibit their appearance by those means, the court may allow the accused or offenderto appear by either of those means. Case Law [52] Drawing from the foregoing provisions of the Criminal Code, counsel reviewed two potential routes by which I may allow theinstant application: one as a function of the discretion under s. 650(2)(

b) and another as under ss. 715.23 and 715.24. Whileconsiderations related to the latter are explicitly set out in the Criminal Code, the considerations for exercising the discretion unders. 650(2)(

b) have developed in the jurisprudence, which demands a thorough review. I note that much of the judicial consideration ofs. 650(2)(

b) of the Criminal Code came prior to the 2022 Amendments. [53] In R. v. Pazder, 2015 ABQB 493, three accused were jointly charged. Certain of the pre-trial Charter applications, however,related to matters specific to only one of the three accused. The time period set aside to hear those applications was nearly a month. Oneco-accused indicated that he was a businessman in another city and preferred not to attend the voir dires that did not relate specifically tohim for economic and family support reasons. He also did not reside in the city where the trial was being held.

The court noted: [246] Like many areas of judicial discretion, Criminal Code, s 650 is a balancing act between the Criminal Code, s 650(1) imperativethat an accused attend at all parts of his trial, to modernization of the Criminal Code which allows some exceptions to occur. This is anindividual process, which depends on the dynamic of the trial, trial length, the reasons for the request, and the public policy interestaspects. The view of the Crown is also highly relevant as it is primarily their risk if the trial goes sideways due to the absence of anaccused.

As the preceding decisions indicate, an improper absence by the accused from a court proceeding has dire consequences. [247] That means this remedy should be granted rarely. I conclude if a court permits the accused to be absent under Criminal Code, s650(2)(

b) then that discretion should be exercised only if it is supported by some type of written undertaking. This provides anddocuments that the accused is fully informed and acknowledges that there are risks to this procedure.

An accused individual whobenefits from being permitted to be absent from trial should not later be able to rely on those risks, and as a consequence allege defects inhis trial that create a reversible error on appeal. [54] The court went on to review numerous instances where an absence would be granted: [248] Cases that have commented on this provision since it was enacted set out some of the fundamentals which are useful tounderstand the correct application of Criminal Code, s 650(2)(b).

This survey also includes applications of Criminal Code, s 537(1)(j.1)which has an analogous function in a preliminary hearing: R v Schindler, 2003 BCPC 565at para 4; R v Waddell, [2008] NJ No388 (QL) at para 52 (NL Prov Ct). 1. The powerful negative potential consequences of an incorrect Criminal Code, s 650(2)(

b) absence means that an absence should onlybe granted:

a) in the clearest of circumstances (R c Rickard, [1995] JQ no 1485 (QCSC); R v Durward, 2014 ONSC 2182at para 32; R v Waddell, atpara 71);

b) where the rights of all trial participants are respected (R c Rickard; R v Durward, at para 32); and

c) where the accused's absences do not lead to unnecessary delays (R v Durward, at para 32; R v Schindler, at para 9). 2. An accused may only be permitted to not attend a proceeding where that accused establishes a "substantial cause ... to be absent that ismore than ... mere preference" (R v Durward, at para 44; R v Schindler, at para 13; R v Brown, [1997] OJ No 6166 (QL) at para 3 (OntCt (Gen Div)), or "a powerful reason" to be absent (R v Drabinsky (2008), (ON SC), 235 CCC (3d) 350 at para 2, 79WCB (2d) 259 (Ont Sup Ct J); R v De Zen, at para 6). 3. A Criminal Code, s 650(2)(

b) absence may only occur:

a) if a part of a proceeding is "utterly unrelated" to the charges against the accused (R v Durward, at para 42; R v De Zen, 2010 ONCJ448at paras 2, 8, 90 WCB (2d) 259; R v Trang, 2001 ABQB 437at para 7, 201 DLR (4th) 160);

b) for defined, short periods where the court can with confidence predict the absence will not cause issues or delay (R v Schindler, at para9);

c) where it is "highly unlikely" that the accused would or could add anything to the evidence, or assist counsel in examination ofwitnesses (R v Butler (1993), (MB KB), 86 Man R (2d) 50 at para 16, 81 CCC (3d) 248 (Man QB));

d) in anticipation of conduct that is expected to disrupt the court proceedings (R v Brown, at para 3);

e) to give effect to informant privilege (R v Klymchuk, [2007] OJ No 5457 at paras 60, 64, 77 WCB (2d) 379 (Ont Sup Ct J);

f) during preliminary investigation of matters that may potentially affect trial fairness (R v Vézina, (SCC), [1986] 1 SCR2 at paras 14-15, 25 DLR (4th) 82; R v Hertrick (1982), (ON CA), 137 DLR (3d) 400, 67 CCC (2d) 510 (Ont CA),leave denied [1982] SCCA No 123; R v Chan);

g) where the accused is absent for an application that may, in the future, be repeated without prejudice to the accused: R v Flowers, (Ont Sup Ct J).

h) with a valid waiver (R v Dunbar (1982), (ON CA), 138 DLR (3d) 221, 68 CCC (2d) 13 (Ont CA); R v Waddell, atpara 53; R v De Zen, at para 7), as defined by Korponey v Canada (AG), (SCC), [1982] 1 SCR 41 at 73-74, 132 DLR(3d) 354, that: i. is clear and unequivocal, ii. the party making the waiver has full knowledge of the rights waived, and iii. the party making the waiver knows the effect of the waiver on those rights. 4.

An accused should be present for any part of the criminal proceeding that "... affected the vital interests of the accused or whether anydecision made bore on "the substantive conduct of the trial ..."": R v Simon, 2010 ONCA 754, 104 OR (3d) 340, at para 116, leave toappeal refused, [2010] SCCA No. 459; see also R v Poulos, 2015 ONCA 182, 124 OR (3d) 675; R v Vézina, at para 13. This includes:

a) arraignments and pleas (R v Vézina, at para 13; R v Hertrick, at para 52);

b) jury selection (R v Durward, at para 46; R v Vézina, at para 13);

c) reception of the evidence (R v Poulos, at para 19; R v Hertrick, at para 52), including voir dire proceedings and rulings with respect toadmissibility of that evidence (R v Vézina, at para 13);

d) trial arguments by counsel (R v Vézina, at para 13);

e) any interaction with the jury, including addresses by counsel to the jury, the judge's charge, and request by the jury for instructions (Rv Vézina, at para 13; R v Hertrick, at para 52);

f) receipt of the verdict (R v Vézina, at para 13);

g) sentencing (R v Vézina, at para 13);

h) discussion of (on the record) trial resolution and plea bargains (R v Poulos, at paras 19-21); and

i) when a view of a scene is conducted following the Criminal Code, s 652 procedure (R v Sappleton, 2010 ONSC 6305at paras 7-9, 91WCB (2d) 719; R v Hertrick, at para 52, but see R v MacDonald, [2006] OJ No 4285 at para 18, 71 WCB (2d) 543 (Ont Sup Ct J); R vLee, 2005 ABPC 140at para 23, 390 AR 171 . 5. An accused who seeks to be absent from a trial under Criminal Code, s 650(2)(

b) must retain a lawyer to attend the hearing: R vDurward, at para 44; R v De Zen, at paras 7-8, but see R v Ryle, 2010 MBQB 134at para 2, 253 Man R (2d) 269 and the obiter commentin R v Falls, 2013 ONSC 862at para 21. 6.An accused who obtained a court order under Criminal Code, s 650(2)(

b) that permits non-attendance may revoke that permission atany time, without notice: R v Durward, at para 47; R v Brown, at para 2 (Ont Ct (Gen Div). [249] As is obvious from this survey, the first fundamental principle is that Criminal Code, s 650(2)(

b) should only be used sparingly,and with caution. An accused's absence should only occur where there is a valid and legitimate reason that does not offend public policy,and that is beneficial to the accused without prejudicing the fair trial rights of the accused and other trial participants. [250] The court should never make a s 650(2)(

b) order, no matter its potential benefits, if that absence affects in a negative way theability of the accused to have, and to see that he or she is having a fair, open, and impartial trial. There is much about a trial that is notrecorded in the transcript or the electronic recording. This includes body language, the response of witnesses to questions, the level ofemotion or apprehension on the part of the witnesses, the interaction between judge, counsel, and witnesses. Thus, the status quo remainsthat a s 650(2)(

b) absence is the exception rather than the norm. [55] Following the survey of the case law, Justice Germain narrowed down the relevant factors, albeit in a non-comprehensivemanner, as follows: [261] […] 1. the reasons for the request; 2. the strength or experience of counsel; 3. whether the absence impede the trial unreasonably or inconvenience co-defendants or the Crown; 4. whether the accused will still be represented by counsel in their absence; 5. the issues was being dealt with in the absence of counsel or the accused; 6. whether there is a formal written waiver; and 7. whether the type of trial (jury v. judge alone), or the trial process.

[ 56 ] In R. v. Harvey , 2014 BCSC 1692 , there was consideration of s. 650 briefly in a second-degree murder trial. An issue related to the prospect that the accused was not criminally responsible on account of mental disorder (“NCRMD”) was raised by the Crown. The court had noted that the accused had been the subject to fitness assessments, including whether he was fit to stand trial. The court had permitted his attendance in court from the Forensic Institute, by video-link, by agreement between the defence and the Crown with the permission of the court under s. 650(2) (

b) of the Criminal Code because: [12] […] the stress involved in removing Mr. Harvey from that environment and any disruption in the course of his medications would likely interfere with his level of fitness. Mr. Harvey’s mother was present in the room with him at the Forensic Institute during the trial. [ 57 ] In R. v. Ali , Khan, and Malonga-Massamba , 2020 BCSC 996 [ Ali ], the accused advanced that, during the COVID-19 pandemic, a departure from and subsequent return to a pre-trial facility would be processed as a “new” admission.

In consequence, an individual involved in these transfers would have to enter a 14-day quarantine on the COVID-19 segregation unit where inmates were held on lockdown for 23 hours a day. The accused requested that they be excused from personal attendance at court. [ 58 ] The court in Ali considered ss. 650(1.2) and 650(2) (b). Section 650(1.2) then prohibited attendance by video where evidence of a witness was being taken. The

section read:

(1.2) If the court so orders, an accused was confined in prison may appear by close-circuit television or videoconference, for any part 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 to communicate privately with counsel if they are represented by counsel. [ 59 ] The court in Ali held that, because a voir dire is part of a trial and s. 650(1.2) is limited to parts of a trial “ other than a

part in which the evidence of a witness is taken”, the exception did not apply to a voir dire . The court held that the court's broad discretion under s. 650(2)(

b) was not limited in this way. The court noted that a similar result was reached in R. v. Daley , 2020 ONCJ 201 at para. 14 . [ 60 ] The court in Ali was ultimately satisfied that the harsh transfer conditions set out by the accused established compelling reasons for their request. In light of the waiver the accused had signed, it was ordered that each of the three accused be permitted to attend the voir dire by videoconference from the remand institution. [ 61 ] In R. v.

Towsey , 2023 NSSC 3 , at the time the matter was heard, the accused was homeless and resided in a van by the side of a road in Hope, British Columbia, and sought permission to attend his trial by videoconference. He had been involved in a motor vehicle accident which severely injured him requiring intensive rehabilitation and occupational therapy. He was ambulatory with a rolling walker. The Crown did not disagree with the physical state of the accused as he set out in his evidence. [ 62 ] While the Crown agreed the court was empowered under s. 650(2) (

b) to grant the order, but emphasized that it was the court's obligation to ensure the accused sustained “no prejudice, notwithstanding his expressed preference to attend remotely by video conference”: at para. 21. The court ultimately permitted the attendance by videoconference. Justice Gabriel held that “[i]n doing so, I have concluded that, to deny the accused’s request, in these comparatively rare circumstances, would effectively deny him access to justice”: at para. 32. Ultimately, however, as Gabriel J. stated: [12] […] The discretion conferred upon the Court in that

section is one which will therefore be sparingly exercised. [ 63 ] In R. v. Gathergood , 2020 BCSC 1311 , the court allowed the accused to attend by video link from a forensic psychiatric hospital where he was under the care of a psychiatrist and other medical professionals. Recognizing that s. 650(2) (

b) was to be used sparingly and with caution, the court was satisfied that there were compelling reasons to grant his request and that the accused’s desire to attend his trial by way video link was grounded in valid and legitimate reasons that did not offend public policy. Had such an allowance not been made, the court indicated that the accused would not have received the mental health care he required and that he would have been required to submit to various quarantine measures. [ 64 ] In support of its argument, the Crown before me put forward the case of R. v. Bhoondpaul , 2020 BCSC 2042 .

In that case, pursuant to s. 650(2) (b), the applicant sought an order that he could appear at the trial by closed-circuit television from the Vancouver Island Correctional Center (“VICC”). The grounds concerned the length of time the applicant had been detained at VICC, the applicable COVID-19 quarantine protocols, and that the applicant was employed in the VICC kitchen and would lose his employment if he had to attend his trial in person.

The court found that that the applicant had not shown valid and legitimate reasons that did not offend public policy for granting the order sought: Bhoondpaul at para. 23 . analysis [ 65 ] I note at the outset that I am mindful to consider all of the medical evidence before me as a whole.

I have reviewed that evidence, including— inter alia —applicable records and notes, in developing as much of a complete picture of the applicant’s condition as possible. [ 66 ] I am satisfied, for example, that the applicant suffers from a degenerative disc disease, as well as various concerns following a serious motor vehicle accident in 2011. I am also satisfied that the symptoms that attending physicians and surgeons have set out reflect their assessments of the applicant at the applicable times.

There is also no issue in respect of the fact that the applicant sustained falls and further surgeries, as well as a surgery to remove hardware that had been left in his arm. [ 67 ] The Crown has taken issue with certain manners in which the applicant has navigated his afflictions, including, for example, his willingness to take certain medications and to pursue certain referrals. The record before me presents of somewhat different view. [ 68 ] While there is some concern with the applicants alleged refusal to take Carbamazepine, for example, the record demonstrates that

the applicant has endeavoured to take the medication on several occasions but has not done so due to complaints that he was getting ill. [ 69 ] Likewise, the record demonstrates that the applicant has refused referral to only one specialist, Dr. Nikolakis, his former surgeon.

In that context, no further efforts appear to have been made to refer the applicant to a different specialist, nor was other treatment offered at the time. [ 70 ] Moreover, a concern has been raised in respect of an aspect of the applicant’s medical notes, indicating that he has “no history of spinal cord injury” given that the applicant has complained of spinal injury. The applicant, for example, requested a cane to help alleviate related afflictions.

As the record demonstrates and as was set out above, the applicant’s spine has been implicated at various points in his medical history. [ 71 ] With these evidentiary notes set out, I turn to the factors set out in s. 715.23 of the Criminal Code . The Crown suggests that no case law has yet determined whether the allowance for remote appearances in s. 715.23 with the consent of the prosecutor and the accused should restrict remote appearance where there is no such consent in the indictable offence context.

Section 715.24 , however, provides a broad remedial discretion that I am satisfied can be relied upon in the instant circumstances. To this extent, regardless of the discretion outlined above, it is not necessary to resort to s. 650(2) (

b) of the Criminal Code at this juncture.

a) The location and personal circumstances of the accused or the offender [ 72 ] I find that the location and personal circumstances of the applicant favour granting the order sought. The applicant has serious and chronic pain that has been documented in the record before the Court. Being transported for two-and-a-half hours every day has been very painful for the applicant, and he has endured documented migraines and pain in his neck and back as a result.

Moreover, the applicant has signaled to the Court that he cannot hear what is being said in the courtroom when counsel lowers their voice. [ 73 ] The Crown contests that any claims by the applicant that he is receiving inadequate care at the NFPC are unsubstantiated and that it cannot yet be determined that special transportation arrangements made by this court are or will continue to be inadequate. [ 74 ] As I set out above, I do not accept these contentions by the Crown regarding the nature and extent of alleged refusals by the applicant to receive reasonable treatment.

What is clear in the evidence, however, is the general nature of the applicant’s condition and the prospect and reality of its effects when he is transported from NFPC. It is not disputed by the Crown that the applicant suffers pain and is subject to headaches including migraines. Moreover, I am not satisfied that the special transportation arrangements available will alleviate the instant problems. In good traffic conditions, the commute is two-and-a-half hours.

However, traffic conditions cannot be guaranteed. [ 75 ] More broadly, I am satisfied that Bhoondpaul can be distinguished from the case at hand insofar as the commute between the facility (VICC) and the law courts in that case was shorter. [ 76 ] I am satisfied that the condition occasioned on the applicant as a by-product of the transportation will impact his ability to be “mentally” present and to meaningfully participate in his trial.

b) The costs that would be incurred if the accused or offender were to appear in person [ 77 ] The costs to appear do not factor on this decision.

c) The suitability of the location from where the accused or offender will appear [ 78 ] The location where the applicant would appear, if his application is successful, will be at NFPC, which is a suitable location. Videoconference appearances have already been successfully arranged from NFPC in this matter with one exception in which the institution had not been notified that the accused’s attendance would be required at a pre-trial conference.

Many substantial matters were reviewed and dealt with efficiently when the applicant appeared remotely. [ 79 ] In Bhoondpaul , there was some concern with respect to the scarcity of video link capacity at VICC. As I set out above, the applicant has been previously refused the option to appear by videoconference in proceedings at the BC Provincial Court. In reaching that decision, the Judge made note of scarce video room capacity at NFPC.

Absent evidence before me on this point, however, and in light of the extent to which I have seen the videoconferencing capacity at NFPC to be effective in this matter, I am unable to find that any contention of scarcity here should generally preclude the applicant from the relief he requests. [ 80 ] I am satisfied that NFPC is a suitable location for the applicant to videoconference from.

d) The accused’s or offender’s right to a fair and public hearing [ 81 ] The applicant submits that his right to a fair and public hearing would be enhanced by my granting this order insofar as it would better enable him to meaningfully participate in this trial. He has further unequivocally waived his right to be physically present for all aspects of the trial.

e) The nature and seriousness of the offence [ 82 ] The offence before the Court is second-degree murder, which is a serious offence. That factor alone, however, is not

determinative; in Ali , for example, the accused were charged with conspiracy to commit murder . The offences in Harvey , Gathergood , and R. v. Vandenberg , 2019 BCSC 1838 were similarly serious. In those cases, the accused were permitted to attend by video. [ 83 ] Despite their development prior to the 2022 Amendments, I am cognizant of the considerations from Pazder . In the instant circumstances, the reasons for the applicant’s request are satisfactorily corroborated in the evidence.

Moreover, I am not satisfied that the physical absence of the accused would unreasonably impede the trial or inconvenience the Crown. If appearing via videoconference, the accused will continue to be represented by counsel and the Court will continue to be able to see the applicant at all times. [ 84 ] As in the case of Harvey , there will be less stress to the applicant if he is permitted to attend his trial by videoconference. He will not have to be concerned with the possibility of sustaining significant pain every time he is transported to and from the Court.

Disposition [ 85 ] I am mindful of and recognize that the applicant is requesting to attend trial by way of videoconference in respect of a serious offence, namely second-degree murder. The record clearly demonstrates, however, that the applicant has a chronic pain condition and that transportation to the courthouse causes serious pain.

Subject to conditions set out below, I am satisfied that, in these rare and exceptional circumstances, to deny the applicant the ability to attend certain parts of his trial by videoconference would deny him access to justice. [ 86 ] I order that, pursuant to ss. 650(1) , 715.23 , and 715.24 of the Criminal Code , the applicant may attend the trial by videoconference where the Court considers it necessary, except in any situation where the applicant is giving evidence when he must attend Court in person. [ 87 ] The applicant may attend the trial by videoconference with the following conditions: 1. the applicant will have available to him physical copies of all exhibits which will be addressed by either side during the trial and the video screen available must include a split screen so that he may, at all times, see an exhibit to which another witness is referencing; 2. the applicant will have the ability to contact his counsel during the trial upon his request; 3. that at any time during the trial, should the applicant determine he no longer wishes to continue with his attendance by videoconference, or if he is having difficulty seeing or hearing at any time, he is to advise the Court immediately and arrangements will be made to have him personally attend the trial or remedy any technical difficulties. “Maisonville J.”