2021 QCCQ 55, 2021 QCCQ 55

R. c. Accurso 2021 QCCQ 55 JH 5496 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF OF MONTREAL “ Criminal and Penal Division ” No: 500-73-003792-120 500-73-004616-187 DATE: January 7, 2021 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. ANTONIO ACCURSO FRANCESCO BRUNO FRANCESCO FIORINO ADRIANO FURGIUELE ANTONIO GIRARDI Accused ______________________________________________________________________ Decision relating to Mr.

Fiorino’s Motion To be absent for portions of the trial (Motion R2) [1] ______________________________________________________________________ CONTEXT [ 1 ] Francesco Fiorino stands trial with Antonio Accurso, Francesco Bruno, Adriano Furgiuele and Antonio Girardi, whom are all facing charges of fraud, forgery, breach of trust, conspiracy to commit fraud, conspiracy to commit forgery and conspiracy to commit breach of trust. [ 2 ] The Prosecution alleges that Mr. Accurso and Mr. Bruno participated in a complex tax evasion scheme.

In short, false invoices were used to transfer money from legitimate corporations to shell corporations, including 3703436 Canada Inc. The money was then transferred from the shell corporations to offshore bank accounts and used to corrupt Canada Revenue Agency (“CRA”) agents, Mr. Furgiuele and Mr. Girardi. [ 3 ] A plan of action was later set up to sidestep a CRA audit of the shell corporation 3703436 Canada Inc, as this audit would have potentially exposed the tax evasion scheme. [ 4 ] The Prosecution does not allege that Mr. Fiorino, a chartered accountant, was involved in the tax evasion scheme.

Rather, the Prosecution alleges that Mr. Fiorino facilitated the execution of the plan of action in concert with Mr. Bruno and corrupted CRA agents, Mr. Furgiuele and Mr. Girardi. [ 5 ] The trial has begun and is expect to last for approximately three months. In the course of the trial preparation, the Prosecution sought 438 admissions from the Defence and advised that it will have to call 75 witnesses if these admissions are not agreed upon.

[ 6 ] The Court understands that Mr. Accurso and Mr. Bruno are not willing to make most of the admissions sought by the Prosecution as of this day. As a result, most of the witnesses announced by the Prosecution will have to be heard. [ 7 ] Mr. Fiorino, who is represented by legal counsel, made serious efforts to streamline the trial and shorten its duration. He is willing to make 394 of the 438 admissions sought by the Prosecution, which represents almost 90% of the admissions sought.

He has advised the Court that he does not need to hear the evidence tendered by 57 of the 75 Prosecution witnesses and that he is prepared to make further admissions on a number of additional issues relating to the administration of evidence during the trial. [ 8 ] Mr. Fiorino alleges that the refusal by Mr. Accurso and Mr. Bruno to make admissions and therefore streamline the trial, is prejudicial to his interests. He is seeking the Court’s permission to allow for his absence and the absence of his counsel, pursuant to Section 650(2) (

b) of the Criminal Code , for extended portions of the trial, during which the evidence that will be heard is totally unrelated to the allegations made against him or would have been the subject of an admission on his part. [ 9 ] Mr. Fiorino is the main breadwinner of his household. He is a sole practitioner and his livelihood may be unnecessarily jeopardized by having to attend a three-month trial in which he is interested only by a few witnesses. According to Mr. Fiorino, the hardship resulting from his attendance at trial is of serious concerns. [ 10 ] Mr.

Fiorino is prepared to sign a clear and unequivocal waiver recognizing that he is fully informed of the risks associated with his request to be absent for substantial parts of the trial, including the risks attached to the co-conspirators exception to the hearsay rule, which will more than likely be invoked by the Prosecution. [ 11 ] Mr. Fiorino and his lawyers have undertaken to follow the progression of the trial trough minutes and recordings of the testimonies of the various witnesses and by keeping in touch with Me Gérald Soulière, the attorney for Mr.

Furgiuele, who has agreed to act as a “liaison” for them, with Mr. Furgiuele’s consent. Mr. Fiorino and his lawyers have also undertaken to remain available to attend Court at all times, if needed. [ 12 ] The Prosecution does not oppose Mr. Fiorino’s request to be absent from the trial. But, according to Prosecution, counsel for Mr. Fiorino should be present at trial at all times. In short, the only question raised by the Prosecution is whether the proposed “liaison” role of Me Soulière is sufficient to assure a fair trial to Mr. Fiorino.

ANALYSIS [ 13 ] Section 650(1) of the Criminal Code provides that subject to certain exceptions, which are provided at subsections (1.1), (1.2) and (2), an accused “shall be present during the whole of his or her trial.” [ 14 ] Subsections (1.1) and (1.2) allow for the appearance of the accused or his counsel by closed-circuit television or videoconference, but the scope of these subsections is clearly limited to any part of the trial other than a

part in which the evidence of a witness is taken. [ 15 ] Subsection (2) provides exceptions to the general principle pertaining to the presence of the accused during parts of the trial in which evidence of a witness is taken. In this regard, Subsection (2) (

b) provides that the court may “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.” Section 650(2) (

b) thus grants discretion to the trial judge to allow for the absence of an accused during parts of the trial during which evidence of a witness is taken. [ 16 ] In R. v. Drabinsky [2] , the Ontario Superior Court noted that an accused has no absolute right to be absent from his trial. Rather, permission must be sought because the accused has a duty to be present at his trial. Thus, presence at one’s trial is not just a right, it is also a duty. [ 17 ] Each request made pursuant to section 650(2) (

b) should be considered on its own merits. The discretion of the judge should be exercised only in the clearest of circumstances and in a manner in which the rights of all parties are respected. The accused’s desire not to attend his or her trial should be balanced with the need to avoid unnecessary delays and problems resulting from the accused’s absence [3] . [ 18 ] The mere preference of the accused to be absent from his trial is not, in itself, sufficient as the presence of the accused is of fundamental importance to the fairness of the trial.

Thus, a substantial cause must support his or her request to be absent from the trial. The financial hardship of participating in a lengthy trial can be a substantial cause to allow for the absence of an accused [4] . [ 19 ] Finally, considerations should be given to the fact that the accused is fully aware of all the consequences of his or her decision to be absent from the trial. Thus, an express waiver signed by the accused is often required before allowing an accused to be absent from his or her trial [5] . [ 20 ] In the matter at hand, Mr.

Fiorino is willing to make admissions, which would substantially shorten the duration of the Prosecution’s evidence. But, as the others are not willing to make these admissions, the trial is now scheduled for a three-month duration, as opposed to a few weeks. [ 21 ] As a result of having to be present at Court for many weeks during which evidence that he would be willing to admit is administered by the Prosecution, Mr. Fiorino will suffer serious and unnecessary financial hardship. Mr.

Fiorino has thus, demonstrated that his requested to be absent from part of the trial derives from a substantial cause, that is serious and unnecessary financial hardship. [ 22 ] Mr. Fiorino, who is represented by counsel, signed an expressed waiver recognising that is fully aware of all the consequences of his decision. The Court reviewed the waiver and is satisfied that Mr. Fiorino is waiving his rights in a clear and unequivocal manner.

[ 23 ] The Court is satisfied that Mr. Fiorino’s absence will not affect the rights of the other parties involved in this trial and that the risks of delaying the trial can be managed by the undertakings included in the Waiver signed by Mr. Fiorino. [ 24 ] The last remaining question relates to Mr. Fiorino’s request that his counsel also be absent from trial. In this regard, the Court finds that requesting the presence of counsel would cause serious and unnecessary financial hardship to Mr. Fiorino. The work done by Mr.

Fiorino’s lawyers regarding the admissions sought by the Prosecution shows that they have analysed the evidence in depth. The Court is thus satisfied that Mr. Fiorino properly understands the risks associated with his decision and that he is waiving his right to have counsel present in a clear and unequivocal manner. [ 25 ] Thus, the Court allows Mr. Fiorino to be absent from parts of the trial at the conditions stipulated in the attached Waiver. The Court also imposes, upon Mr.

Fiorino’s lawyers, the obligation to be present remotely within 30 minutes and in-person, within 90 minutes. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me François Blanchette/ Me Jeremy Van Doorn Me Marie-Claire Emond Counsels for Director of Criminal and Penal Prosecution Me Marc Labelle/ Me Kim Hogan Labelle, Côté, Tabah et Associés Counsels for the Accused Antonio Accurso Me Julie Lepage Counsel for the Accused Francesco Bruno Me Michele Meleras / Me Isabel J.

Schurman Schurman Grenier Strapatsas Counsels for the Accused Francesco Fiorino Me Gérald Soulière Linteau Soulière & Associés, avocats Counsel for the Accused Adriano Furgiuele Me Isabelle Lamarche Counsel for the Accused Antonio Girardi Dates of hearing: January 05 and 06, 2021.