r v. ANTONIO ACCURSO, 2021 QCCQ 236

R. c. Accurso 2021 QCCQ 236 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-73-003792-120 500-73-004616-187 DATE: January 28, 2021 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. ANTONIO ACCURSO FRANCESCO BRUNO FRANCESCO FIORINO ADRIANO FURGIUELE ANTONIO GIRARDI Accused ______________________________________________________________________ Decision relating to Mr. Bruno’s and Mr.

Furgiuele’s Motion to attend their trial using A videoconferencING system [1] (MotionS R1-R1A) ______________________________________________________________________ [ 1 ] Francesco Bruno and Adriano Furgiuele stand trial with Antonio Accurso, Francesco Fiorino 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 joint trial has begun in January 2021, amid the second wave of the Covid-19 pandemic, and is expected to last for approximately three months. [ 3 ] Mr.

Bruno suffers from serious health issues, which are documented in a letter signed by his doctor, exhibit R1-1. According to his doctor, “Mr. Bruno exhibits at least four risk factors that place him at a very high risk of having severe disease sequela if he becomes infected with Covid-19”. [ 4 ] Mr. Furgiuele does not suffer from serious health issues, which would place him at a higher risk of having complications if he becomes infected with Covid-19. That being said, Mr. Furgiuele expressed the wish to stay home and limit his contacts with others. [ 5 ] Mr. Bruno and Mr.

Furgiuele are seeking the Court’s permission to be physically absent from the trial pursuant to section 650 (2) of the Criminal Code , while seeking the Court’s permission to attend and participate in their trial by the videoconferencing system “Teams”. The Prosecution does not oppose this request.

ANALYSIS Can an accused attend the evidentiary part of his trial by videoconference? [ 6 ] 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.” The presence to which section 650(1) of the Criminal Code refers is the actual physical presence of the accused in the courtroom. [ 7 ] 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 this subsection is clearly limited to any part of the trial other than a

part in which the evidence of a witness is taken.

[ 8 ] Subsection (2) provides exceptions to the general principle requiring the accused to be present while 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 trial or any part of his trial on such conditions as the court considers proper.” [ 9 ] Subsections (1.1) and (1.2) speak to different circumstances than subsection (2)(b). Subsections (1.1) and (1.2) deal with non- evidentiary part of the trial and provide for the remote presence of the accused whereas subsection (2) deals with the evidentiary part of the trial and, subsection (

b) only provides for the absence of the accused on such conditions as the court considers proper. [ 10 ] While it is clear that subsection (2)(

b) grants discretion to the trial judge to allow for the absence of an accused during the evidentiary part of his or her trial,

section 650 of the Criminal Code is drafted in a manner that appears to preclude a trial judge from authorizing an accused to attend the evidentiary part of his or her trial remotely, by videoconference. [ 11 ] The Covid-19 pandemic has created a new reality to which courts must adapt. Justice cannot simply be postponed sine die , until the end of the pandemic. [ 12 ] In R. v. Binette [2] , the Superior Court endorsed a broad

interpretation of subsection (2)(

b) amid the ongoing Covid-19 pandemic, allowing for an accused to attend preliminary motions remotely, even where witnesses would be heard. In short, the Superior Court granted the accused’s application to be physically absent for the trial while allowing her to attend the hearing remotely by videoconference. [ 13 ] Relying on the Binette case, the Court finds that it can allow an accused to attend his or her trial by videoconference, even when witnesses would be heard.

When should permission be granted to an accused to attend his or her trial by videoconference? [ 14 ] Cases in which courts have granted an accused’s application to be absent from his or her trial offer guidance when deciding if an accused should be granted permission to attend his or her trial by videoconference. [ 15 ] In R. v. Drabinsky [3] , the Ontario Superior Court noted that an accused has no absolute right to be absent from his or her trial. Rather, permission must be sought because the accused has a duty to be present.

As a result, the accused’s mere preference to be absent from his or her trial is not sufficient. A substantial cause must support his or her request. [ 16 ] While each application should be considered on its own merits, proceeding in the absence of the accused should be done sparingly, in the clearest of circumstances and in a manner in which the rights of all the parties are respected.

The accused’s application should be balanced with the need to avoid unnecessary delays and problems resulting from his or her absence [4] . [ 17 ] Finally, consideration should be given to the fact that the accused is fully aware of all of 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] . [ 18 ] In short, the discretion provided upon the trial judge by subsection (2)(

b) requires balancing competing interests and thus, should be exercised in a manner which will ensure a fair trial for all involved. Should Mr. Bruno and Mr. Furgiuele be allowed to attend their trial by videoconference? [ 19 ] In the matter at hand, the trial began amid the second wave of the ongoing Covid-19 pandemic. While Dr. Pénicaud testified that the Courtroom meets all of the applicable sanitary measures, Mr. Bruno’s and Mr. Furgiuele’s request to be physically absent from their trial rest on the fact that there are still risks associated with coming to the Courthouse on a daily basis.

The Court finds that these risks amount to a “substantial cause”. [ 20 ] That being said, Mr. Bruno and Mr. Furgiuele would not be “absent” in the traditional sense, as they would attend their trial remotely, by a videoconferencing system, as they have done for the last three weeks. [ 21 ] Mr. Bruno and Mr. Furgiuele confirm that they both have access to high quality internet. They can see and hear what goes on in the Courtroom. Earlier in the trial, they were able to see a document (the Plan of Action) which was shown to the Court by the Prosecution using the videoconferencing system.

They are able to communicated privately and instantaneously with their lawyers, physically present in the Courtroom, using either text messages or e-mails. Mr. Bruno, who needs translation from French to English, benefits from simultaneous translation, which is recorded [6] . In short, both Mr. Bruno and Mr. Furgiuele are waiving their rights to be physically present in the Courtroom after having had the chance to test the videoconferencing system. [ 22 ] As for trial efficiency and trial fairness, Mr. Bruno and Mr. Furgiuele know that the internet connection or the videoconferencing system could fail.

They understand that they have the responsibility of advising their lawyers, should the system fail, and they have undertaken to do so. There could also be problems with the system supporting the translation. Mr. Bruno knows that it is his responsibility to advise his lawyer, should such a problem occur, and he has undertaken to do so. [ 23 ] In light of the foregoing, the Court finds that in waiving their right to be physically present in the Courtroom during their trial, Mr. Bruno and Mr. Furgiuele know the risks that they are taking.

They are waiving their right in a clear and unequivocal manner. [ 24 ] In addition, the Court finds that no articulable prejudice would result from Mr. Bruno and Mr. Furgiuele attending their trial by a videoconferencing system, as long as the system works properly and decorum is respected.

[ 25 ] If, at any point during the trial, the fact that Mr. Bruno and Mr. Furgiuele are attending their trial by a videoconferencing system impedes trial efficiency or trial fairness, the Court will rescind this decision. CONCLUSION FOR THESE REASONS, THE COURT: GRANTS Mr. Bruno’s and Mr. Furgiuele’s application to be absent from the whole or a part of their trial. PERMITS Mr. Bruno and Mr. Furgiuele to attend their trial by videoconference from their home. PERMITS Mr. Bruno and Mr.

Furgiuele to communicate privately with their lawyers at any time during the trial by text messages or other means of communications ORDERS that Mr. Bruno and Mr. Furgiuele comply with the decorum of the Court, even if they are not in the courtroom. __________________________________ MÉLANIE HÉBERT, J.C.Q.

Mtre François Blanchette / Mtre Jeremy Van Doorn Mtre Marie-Claire Emond Service des poursuites pénales du Canada For the Prosecutor Mtre Marc Labelle/ Mtre Kim Hogan Labelle, Côté, Tabah et Associés For the Accused Antonio Accurso Mtre Julie Lepage For the Accused Francesco Bruno Mtre Michele Meleras / Mtre Isabel J. Schurman Schurman Grenier Strapatsas For the Accused Francesco Fiorino Mtre Gérald Soulière Linteau Soulière & Associés, avocats For the Accused Adriano Furgiuele Mtre Isabelle Lamarche For the Accused Antonio Girardi