R. v. Candelaria, 2020 ONCJ 194

Her Majesty the Queen v. Candelaria [Indexed as: R. v. Candelaria] Ontario Reports Ontario Court of Justice Downes J. April 17, 2020 150 O.R. (3d) 280 | 2020 ONCJ 194 Case

Summary Criminal law — Plea of guilty — Self-represented accused in custody seeking to plead guilty by telephone — Pleas not beingtaken personally due to COVID-19 pandemic and courthouse having limited video links to detention centre — Criminal Codenot allowing for taking of guilty plea by telephone — Sound policy reasons not to stretch statutory

interpretation to find a way toaccomplish it — Accused could not waive requirement to be present — Criminal Code, R.S.C. 1985, c. C-46, ss. 606, 650. Criminal law — Trial — Presence of accused — Self-represented accused in custody seeking to plead guilty by telephone — Pleasnot being taken personally due to COVID-19 pandemic and courthouse having limited video links to detention centre —Criminal Code not allowing for taking of guilty plea by telephone — Sound policy reasons not to stretch statutory

interpretationto find a way to accomplish it — Accused could not waive requirement to be present — Criminal Code, R.S.C. 1985, c. C-46, ss.606, 650. The accused was charged with failing to comply with the reporting condition of a probation order and two counts of failing to complywith the boundary condition of a release order. He was held at the Toronto East Detention Centre and sought to enter a guilty plea. Hislawyer said that she could not assist him on his plea but could assist him on making submissions on sentence.

The events occurredduring the COVID-19 pandemic, when no accused were appearing physically in courthouses. Because the Scarborough courthouse hadextremely limited capacity to take guilty pleas by video link to the Detention Centre, the accused sought to enter his plea by telephone. Held, the accused could not plead guilty by telephone. There were sound policy reasons not to take a guilty plea by telephone from a self-represented accused in custody and it would have beena mistake to engage in interpretive gymnastics to find a way to accomplish it.

The default requirement under the Criminal Code was forphysical presence, with the only exception being for participation by video. Section 650(2) (

b) granted discretion to a trial judge topermit the accused to be out of court during the whole or any part of the trial on proper conditions, but that was a reference to absencerather than presence by alternative means. Using that

section in a case where the accused wanted to be present and have his matter heardwould be an artifice of statutory

interpretation. Other recent enactments to the Code spoke of audioconferencing, but again the defaultwas personal attendance "except as otherwise provided". Although there was no provision expressly forbidding a plea by telephone, theprohibition was implicit by the combined effect of s. 650 and s. 606, governing the taking of pleas. Further, the statutory requirement ofphysical presence could not be waived. R. v. Walker, [2014] O.J. No. 2567, 2014 ONCJ 271, 115 W.C.B. (2d) 94, 313 C.C.C. (3d) 467 (C.J.), apld [page281] Other cases referred to Korponay v.

Attorney General of Canada, (S.C.C.), [1982] 1 S.C.R. 41 (S.C.J.); R. v. Barrow, (SCC),[1987] 2 S.C.R. 694 (S.C.C.); R. v. Brown, [1997] O.J. No. 6166 (QL) (not available on CanLII); R. v. Drabinsky, (ON SC); R. v. Durward, [2014] O.J. No. 6475 (QL) (not available on CanLII); R. v. Fecteau, (ON SC); R. v. Gates,[2002] B.C.J. No. 416 (QL) (not available on CanLII); R. v. Hertrich, (ON CA); R. v. Monger, [2007] NJ No 447(QL) (not available on CanLII); R. v. Pazder, [2015] AJ No 864 (QL) (not available on CanLII); R. v. Sinclair, 2013 ONCA 64

, [2013] OJ No 418 (QL) (not available on CanLII); R. v. Walker, 2014 ONCJ 271 , [2014] OJ No 2567 (QL) (notavailable on CanLII); R. v Gibbs, 2018 NLCA 26 ; Therrien c. R., [2015] JQ no 21393 (not available on CanLII); Vézina andCôté v. The Queen, (SCC), [1986] 1 SCR 2 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 490.012(4)(c) [as am.], 502.1, 515(2.2), 537 [as am.], 606 [as am.], (1.1) [as am.],(5), 650 [as am.], (1) [as am.], (1.1), (1.2), (2)(b), 650.01,

Part XXII.01, ss. 715.21, 715.22, 715.23, (1), 715.26(1) RULING on the taking of guilty plea by telephone. Mr. J. De Freitas, for the Crown. Ms. S. Feldman, for Mr. F. Candelaria. DOWNES J.: 1. Introduction [1] Feliciano Candelaria is charged with failing to comply with the reporting condition of a probation order and two counts of failing tocomply with the boundary condition of a release order. He was detained after a bail hearing and has been in custody at the Toronto East Detention Centre since February 22, 2020.1 On April 15 he was before me by telephone seeking to plead guilty to these charges.

Forreasons that are presumably protected by solicitor-client privilege, Mr. Candelaria's lawyer says that she cannot represent him on hisguilty plea but could assist him in making submissions on sentence. Mr. Candelaria wants the court to take his guilty plea and sentencehim as soon as possible. [2] The Crown has said that its position on sentence if Mr. Candelaria pleads and is found guilty would be for an effective sentence[page282] of four months. The defence would seek a time served sentence. It is fair to say that, on a

summary review of the matter, both positions appear to be within the range of possible sentences for Mr. Candelaria.2 [3] Because of the COVID-19 pandemic, no accused persons are appearing physically in the courthouse. Indeed, every effort is beingmade to minimize the number of individuals entering the courthouse, particularly in Scarborough where there have been four cases ofinfected or presumptively infected individuals in the last month or so.

Counsel, accused, witnesses in bail hearings, and the court are allparticipating in proceedings by telephone, or in some cases, through video link to the Detention Centre. [4] The Crown submits that there are significant "jurisdictional" hurdles to the court's ability to hear a guilty plea by a self-representedaccused via telephone. While not advocating for it, the Crown suggests that the only possible route for this type of plea is via s. 650(2)(

b) of the Criminal Code, R.S.C. 1985, c. C-46, which grants the trial judge discretion to "permit the accused to be out of court duringthe whole or any part of his trial on such conditions as the court considers proper". In effect, the accused's "absence" would be permittedon condition that he participate by telephone. The Crown says that the Code otherwise does not allow for self-represented accused toenter a guilty plea by telephone. [5] There is no dispute that a guilty plea could be entertained by video.

Regrettably, the Scarborough courthouse has virtually no capacityto take guilty pleas by video link to the Detention Centre, and none to do so by a video conference platform such as Zoom, which wouldpermit remote access by all participants. [6] In my view, the application of established principles of statutory

interpretation to the various provisions of the Criminal Codegoverning remote appearances and the conduct of guilty pleas leads to the conclusion that while any accused can enter a plea of guilty byvideo or through counsel, a self-represented accused can only do so in person or by video. The Code does not permit it to be done bytelephone. 2.

The Legislative Background [7] A number of Criminal Code provisions address the issue of how and under what conditions individuals may participate in a courtproceeding without being physically present in a courtroom. [page283] Some have existed for many years, while others are of recentvintage. [8] Determining the issue at hand requires an analysis of these provisions and, more importantly, how they interact with and modify eachother. Unfortunately, their presence over several different parts of the Code does not always facilitate an easy comprehension of howthey work in conjunction with one another.

Section 606 [9] The taking of a plea is governed by s. 606 of the Code which, in addition to setting out the substantive requirements of a valid plea,provides in s. 606(5) that "subsections 650(1.1) and (1.2) apply, with any modifications that the circumstances require, to pleas under thissection if the accused has agreed to use a means referred to in those subsections".

[ 10 ]

Section 650 speaks to how an accused can "appear" in court during his or her trial. The default requirement in s. 650(1) is for physical presence: "an accused . . . shall be present in court during the whole of his or her trial". "Trial" in this context, both at common law and by virtue of s. 606(5) includes the taking of an accused's plea of guilt and subsequent sentencing. 3 The exceptions to this requirement to be present relate to the ability of an accused to participate in his or her trial remotely, but only by video, not by telephone:

(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.

(1.2) If the court so orders, an accused who is confined in prison may appear 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, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel. [ 11 ] While s. 606(5) incorporates these subsections permitting pleas by 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 it comes to taking a plea by a self-represented accused, s. 606 [page284] allows for only two options: that the accused physically attend before the court or appear by way of video. 4

Section 650 [ 12 ] Although s. 606 does not adopt s. 650(2) (b), does that subsection, standing alone, nevertheless mean that an accused can be excused from being physically present on the condition that he participate by telephone? The authority conferred by s. 650(2) (

b) is broad; it is not constrained by any of the preconditions in s. 650(1.1) or (1.2), so an accused may be excused from being present even while evidence is heard, witnesses are testifying, or submissions are being made. 5 At the same time, it is not an order which should be made lightly, frequently or without conditions. 6 [ 13 ] But seen in its statutory context and in light of the case law on point, s. 650(2) (

b) is about absence , not presence by alternative means. Using it in Mr. Candelaria's situation, where he wants to be present and have his matter heard, would in my view be an artifice of statutory

interpretation. In any event, for Mr. Candelaria, self-represented and clearly struggling to cope, it is unlikely that the stringent criteria that have emerged in the jurisprudence applying this subsection could warrant excusing him. 7 [ 14 ] Relying on s. 650(2) (

b) as authority for the proposition that an accused can be physically absent from court but represent himself on a guilty plea by telephone seems to me to be clearly contrary to the purpose and design of that subsection, when seen in the context of the Criminal Code scheme as a whole. 8 [ 15 ] I agree with the trial judge in R. v. Walker that: [page285] While paragraph 650(2)(

b) allows the court to excuse the accused "on such conditions as the court considers proper", this must be read in its full statutory context. Given the limits on the use of video links, 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. 9 [ 16 ] In other words, the plain statutory purpose of s. 650(2) (

b) is to allow an accused to be entirely absent from the proceedings and not participate in his or her trial at all. Since appearing by video is an exception to the requirement that an accused be "present in court", Parliament obviously intended "present" to mean physically in the courtroom. 5.

Part XXII.01 [ 17 ] Does

Part XXII.01 of the Code , "Remote Attendance by Certain Persons", recently enacted by Bill C-75, provide a means to hear Mr. Candelaria's plea by telephone? [ 18 ] This part begins with a statement of principle: 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. [ 19 ] As well as adding

Part XXII.01, Bill C-75 amended existing provisions to specifically provide for remote participation by video and/or telephone, whether by the accused, counsel, witnesses or the presiding judicial officer. 10 [ 20 ]

Section 715.21 sets out the default requirement that participation in a proceeding must be by personal attendance, "except as otherwise provided in this Act". In other words, if there are other sections of the Code allowing for remote participation, the requirement of personal attendance in s. 715.21 must give way to those provisions. As we have seen, as far as a plea of guilty by telephone by a self- represented accused is concerned, I find that there are no such other provisions. [ 21 ]

Section 715.23(1), however, empowers the court to order an accused to appear by telephone or video: [page286] 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. . . (Emphasis added) [ 22 ] In other words, once again, if another provision in the Code requires that an accused appear in person or prohibits them appearing remotely by video and/or audio, then s. 715.23 must yield to that provision.

[ 23 ] As I have discussed, the provisions of the Code in s. 606 governing the taking of a plea by a self-represented accused only allow for personal attendance or appearance by video. 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. 11 [ 24 ] Notwithstanding the welcome and broad statement of principle in s. 715.22, when the relevant provisions are looked at as a whole and in context, I can come to no other rational conclusion than this -- while Parliament intended many types of proceeding to be conducted by telephone and video, what it did not permit is a telephone guilty plea by a self-represented accused. 12 6. Waiver [ 25 ] Regardless of these statutory provisions, can an accused waive his or her right to be present for a guilty plea and sentencing and choose to appear by telephone?

While an accused person can waive procedural requirements that are solely for their benefit, 13 the threshold for establishing waiver is high. [ 26 ] I start, however, with the same foundational statutory provision already discussed: s. 650(1) requires that "an accused, other than an organization, shall be present in court during the whole of his or her trial" (emphasis added). It is mandatory that [page287] the accused be either physically present or on video.

The possibility of appearing by video in accordance with s. 650(1.1) and (1.2), where it is available, does not diminish the mandatory nature of s. 650(1). Although one might describe this as a "jurisdictional" limitation, and while the effect may be the same, I prefer to see it as simply an issue of compliance with a statutory requirement. As a court of statutory authority, I see no way around what I view as an absence of authority for a self-represented accused to plead guilty by telephone.

The statutory requirement of presence in s. 650(1) cannot be waived. [ 27 ] In any event, the requirement of personal or video appearance is not one that exists solely for the benefit of an accused. In the context of a guilty plea, it surely operates alongside s. 606(1.1) to assist the Court in being satisfied that the plea is being entered voluntarily. As Campbell J. said in Fecteau , the prison environment increases the chance that there may be an unwitting element of coercion on an accused in entering a plea.

While there may not be literal coercion in operation, it is impossible for the court to know exactly what is happening with and around the accused who appears from jail by telephone. On his last appearance by phone, for example, Mr. Candelaria became extremely agitated, shortly before being disconnected from the phone line.

I felt that my ability to appreciate exactly what was happening was constrained by the manner in which he was appearing before me. [ 28 ] Fecteau provides another explanation of why a personal or video appearance for a guilty plea is not a requirement which exists solely for the benefit of the accused, one with which I suspect most trial judges would readily agree: There is another element involved here and that is the human element in the sentencing process. It is one thing for a judge to sentence to imprisonment a live human being who stands physically before the judge in open court.

The judge before imposing a term of imprisonment at least has to look the accused in the eye. It may be quite another thing to sentence to imprisonment a disembodied television image that appears on a screen on the judge's dais. While the sentencing process has many faults one of its strengths is that it is at least a human process. It does not add to the human strength of the sentencing process to turn it into a disembodied electronic exercise. 14 [ 29 ] I conclude that it is not legally open to Mr. Candelaria to waive the Code requirement that he be present in person or by video. [page288] 7.

Conclusion [ 30 ] In these extraordinary times, when courts are largely non-operational and accused people want to be out of custody as soon as possible, everyone of good will is naturally inclined to look for a way to facilitate a properly conducted guilty plea. Every effort must be made to complete whatever proceedings we can, particularly where an individual's liberty is at stake, without unduly risking anyone's health. [ 31 ] There are sound policy reasons why taking a guilty plea by phone from a self-represented accused, particularly one in custody, is not desirable.

In my view, it would be a mistake to engage in interpretive gymnastics in order to find a way to accomplish it. The current state of affairs is, however, unsatisfactory and carries a real risk of an injustice both to Mr. Candelaria and to other accused persons in custody.

But there is an option, and it is an obvious one: provide a video link between the court and the accused to conduct and participate in the proceedings. [ 32 ] As I said earlier, the Scarborough courthouse has extremely limited capacity to take guilty pleas by video link to the Toronto East Detention Centre, where most accused with pending appearances in Scarborough are held.

This is at least in part because, as I understand it, the East Detention Centre itself has only one room capable of linking to a court by video, which is used to connect in-custody accused to courts across the GTA and which in any event does not allow the court to preside remotely. It has only three available phone lines and moving inmates around the institution is a challenge. [ 33 ] But we are now into the fourth week of remote operations.

As all participants no doubt appreciate, it is surely crucial to address the capacity to use video appearances immediately if the court is to avoid a crushing backlog of cases in the months ahead. Many other institutions and businesses, including courts and jails in other jurisdictions, have nimbly adapted to the use of remote video conferencing. It is critical that we do the same.

To do otherwise risks an unacceptable loss of liberty to detained individuals, potentially compromises the health of those who are required to attend the courthouse, and could ultimately undermine the public's confidence in the administration of justice in this province. [ 34 ] Mr. Candelaria cannot plead guilty by telephone. I will hear from the Crown as to what is proposed. I expect arrangements to be

made to bring Mr. Candelaria before the court by video as soon as possible. Plea not taken. Notes 1 Counsel said it was February 25. The Information suggests that Mr. Candelaria was first in court, in custody, on February 22. 2 Assuming he was arrested on February 21, with a 1.5:1 credit for pre-sentence custody, Mr. Candelaria has already effectively served85 days. He has a lengthy criminal record. 3 R. v. Sinclair, 2013 ONCA 64 , [2013] O.J. No. 418, at para. 15 (C.A.), citing R. v. Hertrich, (ON CA),[1982] O.J. No. 496, at paras. 48-50 (C.A.), Application for leave to appeal is dismissed, [1982] S.C.C.A.

No. 124. 4 R. v. Gibbs, 2018 NLCA 26 , [2018] N.J. No. 156 (C.A.), at paras. 20, 24. All three judges, while writing separate reasons,agreed that ss. 650(1.1) and (1.2) represent a complete code for remote appearances by an accused person for their trial.

Section 650.01could allow for a plea by designated counsel in the absence of the accused. That provision has no application in Mr. Candelaria'scircumstances. See also R. v. Monger, [2007] N.J. No. 447 (P.C.). 5 R. v. Drabinsky, (ON SC), [2008] O.J. No. 3136, at para. 6 (S.C.J.). 6 R. v. Vézina, (SCC), [1986] 1 S.C.R. 2; R. v. Pazder, [2015] A.J. No. 864 (Q.B.), at para. 248-49. 7 R. v. Durward, [2014] O.J. No. 6475 at para. 6 (S.C.J.); R. v. Fecteau (1989), (ON SC), 49 C.C.C. (3d) 534, at p.541 (Ont. H.C.); R. v. Brown, [1997] O.J. No. 6166 at para. 3 (C.J.); Therrien c.

R., [2015] J.Q. no 21393 at para. 24. 8 R. v. Durward, infra. 9 2014 ONCJ 271 , [2014] O.J. No. 2567 at para. 40 (C.J.). 10 See, for example, s. 502.1 and s. 515(2.2) permitting an accused to participate in judicial interim release proceedings by video ortelephone, s. 490.012(4)(

c) permitting an accused at a sex offender registration hearing to appear by video (not by telephone), and s. 537clarifying that an accused at a preliminary inquiry may appear by video (not by telephone) 11 By the same token, a judge could not rely on s. 715.26(1) to preside by telephone over a plea by a self-represented accused, since thejudge would not be able "to engage in simultaneous visual and oral communication" with the other participants in accordance with thedefinition of "videoconference" in s.2 of the Code. 12 R. v. Barrow, (SCC), [1987] 2 SCR 694, at para. 38; R. v.

Hertrich (1982), (ON CA), 67 CCC 2d510 (Ont.CA); R. v. Gibbs, supra, note 2, at paras. 20, 24. 13 Korponay v. Canada (Attorney General), (SCC), [1982] 1 S.C.R. 41. 14 Fecteau, supra, note 4, at p. 541, quoted in R. v. Gates, [2002] B.C.J. No. 416 (C.A.), at para. 21. End of Document