R. v. Ingram, 2022 BCPC 252

Citation: R. v. Ingram 2022 BCPC 252 Date: 20220623 File No: 36834-2 Registry: Hudson's Hope IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BENNWARD INGRAM AUSTIN MCNOLTY RULING ON DEFENCE APPLICATION FOR ACCUSED TO APPEAR FOR SENTENCING BY VIDEOCONFERENCE FROM ALBERTA (Re-Accused Ingram) OF THE HONOURABLE JUDGE T. GOLINKSY Counsel for the Crown: S. Cassell Counsel for the Defendant: S. Gerstel appearing by videoconference Place of Hearing: Fort St. John , B.C. Date of Hearing: June 23, 2022 Date of Judgment: June 23, 2022

[ 1 ] THE COURT: This is my ruling in respect of Mr. Ingram's oral application to enter his guilty plea and proceed to sentencing on the charges before the court via videoconference from the Province of Alberta. I note that Mr. Ingram is charged with two offences under the Land Act , which is a B.C. provincial statute. Mr. Ingram has appeared this morning from his lawyer's office in Alberta.

I have heard this application during the course of a busy trial day and I reserve the right to make appropriate edits to make my decision more grammatically correct, more readable, and to add citations and quotations from the law that I will be referring to. The substance, however, will not change. [ 2 ] Mr. Ingram is charged with two charges under the Land Act . The underlying facts of the offences are in regard to the unauthorized excavation and damage of a dinosaur trackway near the community of Hudson's Hope, British Columbia. I am told that he intends to enter a plea.

I do not know if it is to one or both of the charges. I am told that the Crown will be seeking a jail sentence, but they will not oppose submissions that the jail sentence should be served intermittently. [ 3 ] Mr. Gerstel, Mr. Ingram's lawyer, tells me that if an intermittent sentence is ordered, then their submission will be that it should be served in Drumheller, Alberta, which is the city closest to where Mr. Ingram lives. Of course, I have not heard submissions and I do not yet know what the appropriate sentence should be.

I am told by Crown counsel that they have spoken with someone in Alberta, a “sentencing coordinator”, who has assured them that if I were to impose an intermittent sentence on a B.C. provincial offence that it would be an administrative process to transfer the probation order to Alberta for courtesy supervision and then the Drumheller Institution would be agreeable to facilitate Mr. Ingram's intermittent sentence. [ 4 ] I am told that Mr. Ingram had planned to travel to Fort St. John for this hearing.

However, at the last moment and upon the advice of his counsel, he chose to stay in Alberta because they had been told the judge would be appearing virtually. The Crown does not oppose Mr. Ingram appearing virtually at this sentencing hearing. They both submit that I have the jurisdiction to proceed with the sentencing hearing and impose a jail sentence while Mr. Ingram is in a different province, so long as I agree intermittent is appropriate.

The Crown also submits that the court should deal with these matters in an expeditious manner, concerned about the passage of time since the Information was sworn. [ 5 ] The issues before me are as follows: 1. Does the court have the jurisdiction to hold a sentencing hearing for a provincial offence when Mr. Ingram is appearing virtually from another province? and 2. If he can appear in front of me virtually, should the court allow Mr.

Ingram to appear virtually from a different province at a sentencing hearing if there is a possibility that the sentence will include incarceration, even an intermittent sentence? [ 6 ] The resources and law that I have found include materials from the B.C. Provincial Court Notice to Profession (NP 19), the British Columbia Offence Act , [ RSBC 1996] c. 338 , and the Criminal Code . [ 7 ] The part of the B.C. Notice to Profession (NP 19, 11 April 2022) which relates to dispositions can be found under paragraph 5.

The relevant parts read as follows: For out of custody matters where the accused (out of custody) and counsel agree to appear by videoconference or audioconference, and the prosecutor and defence counsel have agreed to seek a sentence that does not involve any incarceration but may factor in time already spent in custody and include a one day jail sentence where the accused is not taken into custody or a conditional sentence order, in order to

schedule these dispositions, defence counsel must: complete the “Request for Resolution of Matters” Form; … All materials to be relied on must be provided to the court two days in advance of the hearing. Those materials will include the picklist terms as part of any peace bond, probation order, or conditional sentence order. Where Crown is seeking incarceration or the accused does not consent to being sentenced by videoconference or audioconference, parties must contact the applicable Judicial Case Manager to

schedule these sentencings. Where the accused is appearing in person for their sentencing, counsel may appear by videoconference or audioconference and must notify the JCM of their method of appearance. [ 8 ] The relevant parts of the Offence Act are as follows: Jurisdiction 8 Subject to

section 2.1 of the Provincial Court Act , every justice has jurisdiction to try, determine and adjudge proceedings to which this Act applies in the territorial division over which the justice has jurisdiction. Appearance of the prosecutor and defendant or counsel 57 (1)If the prosecutor and defendant appear, the justice must proceed to hold the trial.

(2) A defendant may appear personally or by counsel or agent, but the justice may require the defendant to appear personally, and may, if the justice thinks fit, issue a warrant, in Form 5, for the arrest of the defendant and adjourn the trial to await his or her appearance under the warrant.

(3) If the defendant is a corporation, it must appear by counsel or agent, and if it does not appear, the justice may, on proof of service of the summons, proceed without further notice to hold the trial.

Intermittent imprisonment 87 (1)If a defendant who is convicted of an offence is sentenced to a term of imprisonment of 90 days or less and the justice considers it just and reasonable to do so, the justice may, by order, direct that the defendant (a)serve the sentence intermittently at the times specified by the justice in the order, and (b)comply with the conditions in a probation order (i)when the defendant is not in custody during the period the sentence is being served, and (ii)on the defendant's release from custody after the defendant completes the sentence.

(2) A defendant who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to a prosecutor, apply to a justice for an order allowing the defendant to serve the sentence on consecutive days.

(3) If a justice imposes a term of imprisonment on a defendant who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence must be served on consecutive days, unless the justice orders otherwise. Application of Criminal Code 133 If, in any proceeding, matter or thing to which this Act applies, express provision has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable on

summary conviction apply, with the necessary changes and so far as applicable, as if its provisions were enacted in and formed part of this Act. [ 9 ] The various sections in the Criminal Code which are relevant to the questions at hand are as follows: Pleas permitted 606

(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others. ... Video links

(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. Accused to be present 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. Video links

(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-circuit television or videoconference, for any part of the trial other than a

part in which the evidence of a witness is taken. … Exceptions

(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 to continue 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 stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused. Designation of counsel of record 650.01

(1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court. Contents of designation

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel. Effect of designation

(3) If a designation is filed, (

a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than

(

i) a part during which oral evidence of a witness is taken, (ii) a part during which jurors are being selected, and (iii) an application for a writ of habeas corpus ; (

b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and (

c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise. [ 10 ] These sections certainly suggest that a person may be present by video link, and even in some cases by designated counsel, for the pronouncement of sentence. [ 11 ]

Section 715.21 through 715.23 are relatively new provisions which set out the criteria for a person to participate in a proceeding virtually. Remote Attendance by Certain Persons Principles Attendance 715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

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. [ 12 ] So that seems to start to dig down into the parameters of the test that I must apply. Then 715.23 goes on to read: Accused Appearance by audioconference or videoconference 715.23

(1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the 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. Reasons

(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. Cessation

(3) The court may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that the court considers appropriate in the circumstances to have the accused appear at the proceeding. [ 13 ] Section 800(1) and (2) also appear to allow a

summary conviction court to hold trial with the accused present or with the accused present by agent unless the other court orders otherwise. When both parties appear 800

(1) Where the prosecutor and defendant appear for the trial, the

summary conviction court shall proceed to hold the trial. Counsel or agent

(2) A defendant may appear personally or by counsel or agent, but the

summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto. [ 14 ] I note that there are also provisions in the Criminal Code which deal with the execution of a warrant of committal if a person is committed to serve a jail sentence: Warrant effective throughout Canada

(1) Notwithstanding any other provision of this Act, a warrant of arrest or committal that is issued out of a superior court of criminaljurisdiction, a court of appeal, an appeal court within the meaning of

section 812 or a court of criminal jurisdiction other than aprovincial court judge acting under

Part XIX may be executed anywhere in Canada. Warrant effective in a province

(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that isissued by a justice or provincial court judge may be executed anywhere in the province in which it is issued. [15]

Section 528 allows for the endorsement of a warrant of committal in a different province: Endorsing warrant 528

(1) Where a warrant for the arrest or committal of an accused, in any form set out in

Part XXVIII in relation thereto, cannot beexecuted in accordance with

section 514 or 703, a justice within whose jurisdiction the accused is or is believed to be shall, onapplication and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accusedwithin his jurisdiction by making an endorsement, which may be in Form 28, on the warrant. Copy of affidavit or warrant

(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative forceas the original for the purposes of subsection (1). Effect of endorsement

(2) An endorsement that is made on a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it wasoriginally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrantand to take the accused before the justice who issued the warrant or before any other justice for the same territorial division. [16]

Section 743.1 of the Criminal Code addresses where a person is to serve their sentence, depending upon the length of thesentence. In particular,

section 743.1(3) reads: Imprisonment for term less than two years 743.1

(3) A person who is sentenced to imprisonment and who is not required to be sentenced as provided in subsection (1) or (2) [note:sentences of life or sentences of more than two years] shall, unless a special prison is prescribed by law, be sentenced to imprisonment ina prison or other place of confinement, other than a penitentiary, within the province in which the person is convicted, in which thesentence of imprisonment may be lawfully executed. [17] There are several cases which address the jurisdiction of the court to hold sentencing hearings while the accused is in a differentprovince.

I will summarize a couple of these briefly. [18] In R. v. Edwardsen, 2019 BCCA 259, the court said that an accused person can waive procedural rights for their benefit includingthose protected by s. 650, which I will remind you is the presence of the person, so long as the waiver is informed, clear, andunequivocal. In this case Mr. Ingram has had the benefit of representation by experienced and capable counsel and he has had the benefitof their legal advice.

He is fully informed of what he is waiving and he seems to be waiving it freely. [19] Justice Lemon in the case In Re: Court File No. 19/578, 2020 ONSC 3870, considered competing decisions of R. v. Candelaria,2020 ONCJ 194, and R. v. Daley, 2020 ONCJ 201. Justice Lemon, in the reference file wrote: [22] Support for the parties’ submission is found in R. v. Daley, 2020 ONCJ 201, at para 7.

There, Monahan J.distinguished Candalaria by finding that an accused who is represented by counsel can expressly waive his right to be physically presentduring a guilty plea and sentence. [20] Moreover, Monahan J. interpreted s. 650 differently than Downes J. in Candelaria where Downes J. found that the explicitinclusion of s. 650(1.1) and (1.2) preclude relying upon 650(2). Monahan found the opposite: Subsections 650(1.1) and (1.2) permit the accused in certain circumstances to appear by video except where evidence is being given by awitness. However, subsection 650(2)(

b) is even broader and permits the court to allow the accused to be completely out of the courtroomwith no connection by video or audio even when evidence is being taken … [21] With respect to a person appearing virtually from another province during significant parts of their hearing, I have not found caselaw addressing this specific point. However, I do note there are cases where the courts have proceeded with sentencing hearings,preliminary inquiries, or a trial while the person has appeared from a different province, without negative comment from the court onthis particular point. These cases are R. v.

Smith, 1999 BCCA 747; R. v. Field, 2013 NSPC 51; R. v. Bardell, (ABQB); R. v. Ali, Boparai & Malonga-Massamba, 2020 BCSC 1771; and R. v. Singh, (NL PC). [22] I pause to note there was a case of R. v. Berent, 2020 MBPC 53, where the court dismissed the accused's application to appear attrial by video from California. The court noted that there is not yet precedent where an accused person appeared from another countryby video from their trial.

The court raised additional policy and resource implications, but accepted that it may be able to make the orderin an appropriate case. [23] Referring back then to the first question I must answer, “Does the court have the jurisdiction to hold a sentencing hearing for aprovincial offence when Mr. Ingram is appearing virtually from another province?” I find that the court does have jurisdiction toconduct a sentencing hearing where the accused person appears virtually from elsewhere. Additionally, there appears to be no specific

restrictions precluding that person from appearing virtually while in another province or territory. This conclusion is based on the limited caselaw that I have been able to find on point and the principle that jurisdiction over an accused is simply not lost because the accused is out of the province and the absence of any territorial limitation on the provisions that allow the accused to appear virtually. [ 24 ] Before I move to answer my second question, “Should the court allow Mr.

Ingram to appear virtually from a different province at a sentencing hearing if there is a possibility that the sentence will include incarceration, even an intermittent sentence?” I note access to justice is an essential part of the fair administration of justice. As Judge Patterson noted in the case of R. v. Munro , 2022 BCPC 48 , at paragraph 13 : . . . Videoconferencing has a very important role to play in ensuring that access to justice is not only paid lip service to, but is actually accomplished.

In the right situation and with the right technology, videoconferencing adds value and access to our criminal justice system. Nevertheless, our courts need to guard allowing shortcuts that can have a detrimental effect on the trial process, including: 1. The ability of a judge to communicate with counsel; 2. A judge’s and counsel’s observations of witnesses in court; 3. Defence counsel’s ability to communicate with their clients and visa versa; 4. The ability of judges, court clerks, counsel, and witnesses to view, file with the court, and comment on exhibits; 5.

If identification is in issue, trial by video conferencing may be problematic; and 6. The court being able to control its own process, especially when technical issues develop with a videoconference, stream, or the in- court recoding equipment is unable to properly record. [ 25 ] I pause to note that, today, the videoconferencing capability with Mr. Gerstel and his client have been profoundly clear. However yesterday, while working on other matters and while using the same videoconferencing equipment, the technology failed us and the situation became entirely unworkable.

Technical issues such as the use of MS Teams has plagued the court on and off and it is not always as reliable of a tool as one would wish. [ 26 ] The order sought by the defendant is discretionary and, as Judge Patterson held in Munro , best practice is for the party seeking the order to establish an evidentiary foundation for the order sought. In the usual course, a person wishing to attend a hearing, or in this case a sentencing hearing, remotely should prepare and file with the court an affidavit along with an application to the judge.

The affidavit should set out the factual basis for the application and address each of the relevant statutory criteria found in s. 715.22 and 715.23 which, again, I just remind you were questions such as location, costs, suitability, right to a fair trial, and the nature and seriousness of the offence. [ 27 ] I do not have affidavit evidence that would provide a foundation for the application, although I note that Mr. Ingram’s counsel did make oral submissions setting out the basis for the application. Mr. Ingram lives in southern Alberta.

He appears today by MS Teams video link while seated next to his lawyer in his lawyer’s office in Edmonton Alberta. Mr. Ingram had originally planned to travel to court for this sentencing hearing, but upon the advice of his lawyer remained in Alberta as his lawyer believed that appearing by video conference would not be a barrier to the matter proceeding. [ 28 ] Although it may be legally permissible, the court is not required to proceed in this manner and practical and policy concerns may make it undesirable to do so in certain situations, especially if there is a possibility of jail time.

In this case there are considerations that militate against proceeding in this fashion. [ 29 ] I note that enforcing a detention order or a jail sentence is complicated by the fact that a court's warrant of committal is typically executed within the province in which it is granted under s. 703(2), although I note that a warrant of committal can be endorsed in another jurisdiction under s. 528. [ 30 ] As referred to above,

section 743.1(3) of the Criminal Code states that if a person is to be sentenced to a sentence of less than two years (ie/not a penitentiary with a sentence of life or more than 2 years) that sentence “must be served within the province in which the person is convicted.” [ 31 ] There is, then, this statutory restriction limiting where the person can actually serve their sentence. This

section appears to preclude persons convicted in B.C. from serving a sentence of two years or less in a provincial facility outside of British Columbia. [ 32 ] The proposal before me is that a jail sentence is the appropriate sentence, and, although this has not been adjudicated upon, it seems as though counsel have come to the conclusion that it is likely that the court would order that this sentence would be served intermittently.

I note that, even if one were to consider it appropriate to sentence someone to serve their jail sentence in a different province, there are additional hurdles when one considers the mechanics of an intermittent sentence. [ 33 ] As referred to above, s. 87(2) and (3) of the Offence Act states that, at subsection (2) a person may give notice to the prosecutor and apply to a justice to serve the sentence on consecutive days and, at subsection (3) if the person is subsequently sentenced to imprisonment on another offence, the unexpired portion of the intermittent sentence would be consecutive unless ordered otherwise. [ 34 ] This then brings in the possibility of the accused applying to a justice (in Alberta? in British Columbia?) to serve his sentence consecutively.

Or, by virtue of another conviction, a court (An Alberta court if the subsequent matter was an Alberta charge) would need to convert the intermittent British Columbia sentence into consecutive days. It is unlikely an Alberta judge or justice would have the jurisdiction to convert a British Columbia Provincial Act Offence intermittent sentence. [ 35 ] One must also consider concerns about British Columbia using another provinces' resources to administer British Columbia

sentences which have not gone through the waiver process. The waiver process is designed in part to ensure that those with the appropriate authority are able to address any resource and administration concerns. [ 36 ] In conclusion, then, setting aside situations where a jail sentence is possible, I find that there is jurisdiction for the court to agree to exercise its discretion and proceed with a sentencing hearing where the accused is in a different province.

In this case, however, I note that I do not have affidavit evidence that would provide a foundation for such an application as is required under the Code . [ 37 ] In respect of situations where a jail sentence is a possible outcome, and in consideration of my second question, I find that it is not appropriate that Mr. Ingram appear virtually from a different province at a sentencing hearing where there is a possibility that the sentence will include incarceration, even an intermittent sentence. [ 38 ] In conclusion, I dismiss Mr.

Ingram’s application to attend this sentencing hearing virtually. [ 39 ] I greatly appreciate the time and effort by counsel and their thoughtful submissions. I will now remit this matter back to the judicial case manager to fix a new date for a sentencing hearing. (RULING CONCLUDED)