2019 QCCQ 3005, 2019 QCCQ 3005

R. c. Elsayed Trial in absentia. Absconds during the course of the trial. Interests of justice. 2019 QCCQ 3005 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-152844-178 500-01-145019-169 DATE: February 25 , 2019 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

MAHER MOHAMED ELSAYED Petitioner-Accused ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO PROCEED WITH A TRIAL IN ABSTENTIA (section 475 Criminal Code ) ______________________________________________________________________ Introduction The charges [ 1 ] In two separate indictments, the accused, Mr. Maher El Sayed, was charged with five counts of sexual assault. The offences concern five separate incidents committed against five adult women, to whom I shall refer only by their initials.

In a nutshell, the charges arose from massages given by the accused to female clients as a professional masseur. [ 2 ] The trial of the accused was slated to begin on Monday, February 25, 2019. It was scheduled to last five full days. When the accused failed to show up at his trial date, the Crown moved for him to be tried in abstentia and I acceded to the request. Essentially, I concluded that the accused, by his absence, had (

i) voluntarily waived his right to be present at his trial (ii); that the trial had begun; (iii) and that the interest of justice warranted proceeding in his absence. [ 3 ] My reasons for proceeding ex parte were rendered orally on the first day set for trial. Given that complainants and witnesses were waiting to be heard (one complainant had flown in from another country to deliver her testimony), I explained that written reasons detailing more fully my decision to proceed ex parte will follow. What follows are the promised reasons for my ruling.

Brief outline of the procedural history [ 4 ] Reasons for my decision holding that the accused absconded from his trial are best understand if I begin with a brief recap of the procedural history of the case, with a particular focus on the following: (

i) the delays in getting the case to trial; (ii) the fact that the trial had already been postponed twice; (iii) and my refusal, on February 1, 2019, to grant the accused’s petition to postpone the present trial on account of a purported medical condition that required surgical intervention. [ 5 ] The charges against the accused relate to incidents that occurred in the spring and in the summer of 2016. The information was sworn on October 18, 2016. [ 6 ] The preliminary inquiry was held on June 17 and July 17, 2017.

The accused was ordered to stand trial on all the counts contained in two information sheets and the case was scheduled for a five-day trial in the week May 14, 2018. [ 7 ] On April 17, 2018, the accused filed a motion before the Court asking that his trial date be postponed. In support of his application, the accused mentioned that on account of the charges laid against him, he has not been able to find work as a professional masseur/physiotherapist.

He explained his situation by the fact that the disciplinary counsel of his professional order (Ordre professionnel de la physiothérapie du Québec) suspended his right to practice in Canada. Though he was unable to find work in Canada, he was able to secure employment outside the country. In short, a postponement would allow the accused to keep working after being unemployed for a while.

[8] The Court granted the accused’s motion and the trial was rescheduled for the week of January 14 to 18, 2019. However, onJune 22, 2018, the parties agreed to remand the trial to a later date due to the unavailability of a prosecution witness and to avoid splittingthe hearing dates. The trial was then scheduled for the week of February 25, 2019. [9] On February 1, 2019, the petitioner presented a petition before me asking that I adjourn the trial for medical reasons. Theaccused was not present but was represented by his attorney.

In support of the petition to postpone, counsel for the accused filed into therecord a medical report drafted from a physician practicing in Dubai in the United Arab Emirates. [10] My decision refusing to grant a postponement was rendered orally on the same day. Essentially, my ruling was predicatedupon the insufficiency of the medical grounds advanced and by the fact that a postponement so late in the process would greatlyinconvenience the complainants.

I also held that a postponement would only add to the mounting delays in getting this case to trial andthat it was not in the interests of justice to do so. [11] For the purposes of this decision, it will be useful to review in some detail the reasons why I dismissed the accused’s petition.For that matter, the reasons for refusing to postponement lays the groundwork for my decision on the Crown’s application to proceed exparte. Insufficient reasons to justify an adjournment [12] The accused’s application to postpone the trial was predicated upon medical grounds.

Unfortunately, the supporting evidencewas rather thin, to say the least. His attorney simply filed into evidence a one page «Medical report» from an orthopedic surgeonpractising in the city of Dubai in the United Arab Emirates. The unsigned report was dated January 26, 2019. [13] In essence, the report contained two sections; each one comprised of a single paragraph.

In In the first section, titled « History ofcurrent illness », we read the following : Was lifting heavy object at the gym three months ago, then he felt severe pain left elbow, he stopped gym and started NSAIDS, andphysiotherapy, with no improvement. Two weeks pain started to be progressive and not able to move any object and started to complainof night pain and on NSAIDS since then. Was diagnosed initially as osteomyelitis (most likely) versus osteoid osteoma (less likely). (sic) [14] The second

section of the report contained the doctor’s recommendation : We recommend debridement and reaming with aspiration of antibiotics. It might necessitate more than one setting in case of recurrenceor collection. I explained procedure in details with risk and benefits and alternative and also informed him that full recovery will takemonths (3-6 months) as possibility of re-operation for debridement of any residual or recollection, then course of IV antibiotics besidescourse of rehabilitation.

He is a physiotherapist by profession and he totally understand the procedure and the course of management.(sic) [15] The medical report—as the only source justifying the accused’s incapacity to attend his trial—was wanting in many respects.To begin, there was no indication of when the surgery will be scheduled. Will it be in two months, six months or in a year? And eventhen, one has to add a recovery period of three to six months post operation.

Agreeing to a postponement would mean that the trial couldbe delayed indefinitely while waiting for the accused to settle on a definite date for surgery. [16] Next, nothing in the report clearly stated how the relevant medical issues affected the accused’s ability to stand trial. There wasno suggestion, for instance, that he was unfit to fly or that the pain in his elbow would preclude him from effectively participating in theproceedings.

If the accused simply had to wait for a surgery date, surely he could have waited in Montreal just as easily as he could havewaited in Dubai. [17] In light of the evidence, I was not satisfied that the purported medical reasons presented by the accused (through counsel) couldjustify a postponement. What is more, the accused cannot be allowed to assert some vague medical reasons (in this case a surgery withno specific date when it will be held) as an excuse to frustrate and delay the commencement of the trial.

While it may be moreconvenient for the accused to wait for his surgery in Dubai before coming to trial, it cannot excuse him from his first responsibility ofattending court. Inconveniences for the complainants [18] Postponing the trial would have greatly inconvenienced and prejudiced the complainants. Waiting to give testimony at trial hasbeen a source of stress and anxiety for all of them. They wish to be done with the trial and go on with their lives. [19] It was also pointed out that three of the complainants (V.V., E.C. and I.

T) had to make special arrangement to accommodatetheir working and professional schedules in order to be ready for a trial that was going to begin in a little more than three weeks. One ofthe complainants (H.V.) lived outside of the country and had made arrangements (plane ticket and accommodations) to attend theproceedings and deliver her testimony. [20] In R. v. Jordan, 2016 SCC 27 , [2016] 1 SCR 631, the Court noted that prolonged delays cause prejudice not just to the accused, « but also victims, witnesses, and the system of justice as a whole.[1] »

At paragraph 24, more particularly, the Court madereference to its seminal decision in Askov [2] to explain the advantages of timely trials for witnesses as well as the inconveniences orprejudices they incur when a trial is unduly delayed : Timely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the “worry and frustration[they experience] until they have given their testimony” (Askov, at p. 1220).

Repeated delays interrupt their personal, employment orbusiness activities, creating inconvenience that may present a disincentive to their participation. [21] Though the accused, through his counsel, was ready to waive the additional delays incurred by postponing his trial, it would not

be in the interests of justice to do so. Mounting delays in bringing this case to trial (the Jordan clock is ticking) [22] Since the information was sworn (October, 2016) some 28 months have elapsed. The trial had already been postponed twiceand another postponement would certainly breach the Jordan ceiling of a 30 month delay for bringing this case to trial. Crown’s application to proceed in abstentia [23] On Friday, February 22, 2017, at 3:30 p.m., I received an email from defense counsel advising me that his client will not beshowing up for the trial.

In essence, the accused had informed his attorney that he was working abroad and that he would not travelwhilst waiting for surgery. [24] In the same email, defense counsel also advised me that he would be presenting a petition to withdraw as the counsel of record. [25] It should be noted that the said email was sent circa three weeks after my decision refusing to grant the accused’s applicationfor a postponement and, for all intents and purposes, on the eve of the day the trial was scheduled to begin. [26] On February 25, 2019, the accused did not show.

After granting counsel for the accused permission to withdraw as the attorneyof record, I dealt with the Crown’s application to proceed with an ex parte trial. Applicable law General principle : the fundamental right to be present at trial [27] A person charged with a criminal offence is entitled to take

part in the hearings. This entitlement is inherent to the notion of afair trial. As the main subject of the trial, the accused’s presence is of major importance in establishing the factual circumstances of thecase against him.

Without him, there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant.[3] The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant.[4] The trial would be no more than a paper exercise almost inevitably leading to conviction.[5] [28] The role of the accused as the central figure in the truth finding mission of a criminal trial was eloquently described in an articlepublished by Global Rights Compliance, an international human rights organization : At the outset it must be remembered that the primary – and overriding – duty of a criminal court is to conduct a fair trial.

The defendantis, and must always be, the central figure. The trial is the accused’s opportunity to challenge evidence against him and to present hisaccount. It is his opportunity to tell his version of the story. To conduct a trial without the accused is like trying to stage Hamlet withoutHamlet. The story of Hamlet cannot be fully told without the Prince himself on stage. It would not be the same play.

Without theaccused (even with the best supporting cast of judges, prosecutors and witnesses) the trial is not the same trial.[6] —Waiver of the right to be present at trial [29] Under s. 475 of the Criminal Code, where an accused absconds during the course of his trial, he is deemed to have waived hisright to be present at his trial, and the court may continue the trial and proceed to find the accused guilty in his absence.[7] The sectionreads as follows : (Marginal note) Accused absconding during trial 475

(1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, abscondsduring the course of his trial, (

a) he shall be deemed to have waived his right to be present at his trial, and (

b) the court may (

i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or (ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance, but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is nolonger in the interests of justice to await the appearance of the accused. [30] A plain reading of

section 475 of the Criminal Code dictates that two conditions are required in order to support a conclusionthat an accused has waived his right to be present at his trial: (

i) he has absconded and (ii) the absconding was done « during the courseof his trial. » Absconds [31] The absence of the accused from the trial must be voluntary in order to establish that he has « absconded ». The criticalquestion, therefore, is one of determining whether or not the accused has deliberately and consciously chosen to absent himself from thecourt. As Martin J.A., explained in R. v. Garofoli, (ON CA), at paragraph 109, « abscond » refers to the avoidance ofa trial for the purposes of impeding the proceedings; mere failure to attend is not enough :

...the word “absconds” in s. 431.1 [now 475] means more than mere failure to appear. In my view, the word “absconds” imports that theaccused has voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention ofavoiding its consequences.

Proof that the accused deliberately absented himself from the trial would of course permit the drawing of an inference as to the necessary intent.[8] Absconds in the course of the trial (when does the trial begin?) [32] The second condition for a trial in abstentia at s. 475 of the Criminal Code requires that the accused abscond « during thecourse of the trial ». If the trial has yet to begin, there can be no ex parte trial despite the fact that the accused has voluntarily absentedhimself from the proceedings. [33] The issue, then, becomes one of determining what point marks the beginning of the trial.

Does the trial begin when the accusedis formally indicted and he enters a plea? Does it begin when the prosecution calls its first witness to the stand or does it begin when atrial judge or case management judge is called upon to decide preliminary issues relating to the case? [34] The decision of the Court of Appeal of Quebec in R. c. Bolduc, [1995] J.Q. no 708 (C.A.) is especially helpful in deciding whena trial has begun. In that case, the accused was charged jointly with eight others on a count of conspiracy to import narcotics.

At the endof a long preliminary hearing, all the accused were committed to trial and the case was set for the next sitting of the assizes. After re-electing for a judge alone trial, the case was scheduled to begin on October 18, 1993 before Trudel J. of the Court of Quebec.

However,prior to entering a plea, the judge was asked to rule on two preliminary motions: the first asking that an attorney be disqualified fromrepresenting three of the accused and the second asking that one of the Crown prosecutors be disqualified. [35] The afore-mentioned motions were presented before the indictment was filed and before pleas were entered. Following adiscussion among the parties, the Crown agreed that the indictment should be read and filed into the record so as to ensure that thepresiding judge remains seized with the case.

The attorney for the accused (Bolduc) insisted on entering a not-guilty plea for his client,but the Crown objected arguing that it would be best for the judge to rule on the preliminary motions first. Trudel J. agreed with theCrown and the accused was not allowed to enter a plea. [36] After ruling on the two preliminary motions (both were rejected) as well as another motion to stay the proceedings on thegrounds of incomplete disclosure, the trial was slated to begin on November 8, 1993.

Unfortunately, the accused (Bolduc) was absent.The Crown applied to proceed in the accused’s absence pursuant to s. 475 of the Criminal Code and his attorney objected arguing thatthe trial had not yet begun. [37] After issuing a bench warrant for the accused’s arrest, Trudel J. ruled that the trial had begun on October 18, 1993 and that hewas «the trial judge». Finding that the accused had absconded, he proceeded with the trial. In rendering his decision, he noted thatdetermining the start date of a trial depends on the particular circumstances of the case.

In the matter before him, he emphasized thefollowing : He was the judge appointed to preside the trial;He became the trial judge when the indictment was read and filed before him on October 18, 1993 (the first time the case came totrial);That at the said date, the trial was ready to proceed (the Crown and the defense both declared that they were ready). [38] In justifying his position to go ahead with the trial, Justice Trudel commented on the vulnerability of the judicial process had heagreed with the arguments of defence counsel: If an accused absconds, the course of justice would be paralyzed or suspended until the time that he is arrested.[9] [39] On review at the Superior Court, Justice Bellavance agreed that the trial had effectively begun on October 18, 1993.

On appealto the Court of Appeal, both decisions of the lower courts were upheld. Chamberland J.A., writing for the Court, at paragraph 49,explained that the starting date of a trial may vary depending on the circumstances of the case and the applicable provision of theCriminal Code : En droit criminel, le moment qui marque le début d'un procès peut varier suivant les circonstances et le texte du Code criminel quis'applique (Basarabas & Spek c. R., (CSC), [1982] 2 R.C.S. 730; Casault c. Théberge (1979) (QCCA), 7 C.R. (3d) 1 (C.A. Québec, les juges Lamer, Kaufman et Lajoie (dissident)).

Cette constatation, qui peut à première vuesurprendre, s'explique du fait que les articles du Code criminel ne protègent pas tous les mêmes intérêts (R. c. Barrow, (CSC), [1987] 2 R.C.S. 694, aux pages 704-705). [40] Next, on the authority of R. v. Chabot [10], Justice Chamberland pointed out that entering a plea to an indictment is not alwaysnecessary in determining the starting point of a trial : 56. Dans l'affaire R. c.

Chabot, précitée, le juge Dickson (il n'était pas encore juge en chef) affirme, à la page 992 : Il n'y a qu'une seule procédure, soit la production auprès du tribunal de première instance, par l'autorité compétente, d'un acted'accusation écrit énonçant l'infraction. Cette procédure marque le début du procès et réunit les étapes de la présentation et du dépôt.(Emphasis in the original) 57.

Il examine ensuite la question de savoir à quel moment précis un acte d'accusation devient le document opérant dans la procédurecriminelle, pour conclure, à la page 999 : Cependant, pour éviter toute ambiguïté, je suis d'avis qu'un acte d'accusation fondé sur un renvoi à procès sans l'intervention d'un grandjury n'est pas "présenté" contre un prévenu tant qu'il n'est pas produit devant la cour de première instance à l'ouverture du procès duprévenu, et que la cour n'est pas prête à commencer le procès.

[ 41 ] Pointing to the particular circumstances of the case, Chamberland J.A. noted that the accused—via his attorney—wanted to enter a plea at the start of the trial. Were it not for the refusal of the trial judge to accept the plea, the absence of a plea as a bar to the start of the trial would have been a moot point : 61. Si tant est que cela soit nécessaire, j'ajouterais que, étant donné les circonstances de l'espèce, je serais quand même venu à la conclusion de rejeter le pourvoi même si j'avais été d'avis que l'enregistrement d'un plaidoyer était nécessaire pour marquer le début du procès.

En effet, dès le 18 octobre 1993, l'appelant, par la voix de son procureur indiquait clairement son intention de plaider non coupable à l'accusation portée, son procureur se déclarant même prêt à procéder immédiatement.

Ce fut à son corps défendant, et pour des raisons de procédure, que le juge Trudel refusa l'enregistrement de son plaidoyer. [ 42 ] In the concluding paragraph of the decision, he summed up all the circumstances to support the argument that the trial began on October 18, 1993 : • A signed indictment was read and filed into the record; • The clear intent of the accused’s attorney to enter a not guilty plea and to proceed immediately with the trial. [11] [ 43 ] In R. c.

Leventis , [2018] J.Q. no 2464 (C.S.) , the issue before the Court was one of determining an accused’s right to re-elect the mode of trial when a case management judge had already been assigned to the case and adjudicated certain preliminary motions. Though the case had nothing to do with ex parte proceedings against an absconding accused, the reasons for judgement given by Justice St- Gelais are helpful on marking the point at which a trial begins.

More particularly, I note her comments holding that the case management judge acts as a trial judge. [12] Two reasons were given two justify this position: Firstly, it permits the parties to identify the possible avenues to contest the decisions rendered by the case management judge.

Like any other ruling rendered by the trial judge on the merits of the case, those rendered by the case management judge are subject to an appeal. [13] This also has the advantage of avoiding interlocutory appeals that would only hinder the efficient management of a trial. [14] Secondly, the powers conferred upon the case management judge at s. 551.1(3) of the Criminal Code are not exhaustive. [15] For that matter, the case management judge may exercise all the powers attributed to the trial judge before a case is heard on its merits. [16] [ 44 ] For the Crown, the decision of the Court in Leventis reinforces its position that the trial does not necessarily begin when an indictment is filed or when an accused enters a plea.

Nor does it necessarily begin when the trial judge hears the first iota of evidence in a case. Instead, it begins with the first preliminary motions presented before the case management judge or the judge assigned to hear the trial. —Rational for establishing that the accused « absconds during the course of the trial » [ 45 ] What is the rational, if any, of the distinction between an accused who absconds before trial and an accused who absconds during the course of his trial? After all, the Criminal Code makes no such distinction for

summary conviction offences. [17] [ 46 ] In Jones, [2002] UKHL 5 , House of Lords , at paragraph 42, Lord Rodger of Earlsferry, stated that there was no distinction in principle between the two situations : While there may be pragmatic arguments to suggest that there is a difference between a trial that begins in the absence of the defendant and a trial that begins with the defendant present but has to continue in his absence, I can identify no difference of principle between the two situations.

That being so, as a matter of principle, there must indeed be power for the English courts to start a trial when the defendant absconds. [ 47 ] The Law Lords in Jones , however, did not have to deal with specific legislation distinguishing the accused who takes flight before the trial and the one who absconds once the trial has begun. [ 48 ] In Crosby v.

United States , 506 U.S. 255 ( 113 S.Ct. 748 , 122 L.Ed.2d 25 ) the Supreme Court of the United States was called to rule on the application of F ederal Rule of Criminal Procedure 43, which states that a defendant must be present at every stage of trial « except as otherwise provided ». Included in the situations in which the right to be present is waived, is that of a defendant « who initially present is voluntarily absent after the trial has commenced. » In that case, the accused failed to appear at his trial.

The trial judge concluded that the accused had voluntarily waived his rights and that the public interest in proceeding with the trial in the accused’s absence outweighed his interest in being present during the proceedings. Consequently, he was tried and convicted in abstentia.

He appealed his conviction on the grounds that a plain reading of the legislation prohibits in abstentia trials if the accused wasn’t present at the start of the trial. [ 49 ] At the Federal Court of Appeals, ( eighth circuit) , the significance in the distinction between an accused who absconds before the trial begins and the one absconds after the trial begins was dismissed, especially since the accused knew his trial date. Quoting with approval the decision of Government of the Virgin Islands v.

Brown, 507 F.2d 186 , 189 (CA3 1975), Justice Gibson remarked that : [I]t would be anomalous to attach more significance to a defendant's absence at commencement than to absence during more important substantive portions of the trial. Judge Rosenn did note that the commencement of trial would take on special significance under the rule if the defendant did not know when the trial was to begin. Since in that case he could not be said to have knowingly waived his right to be present. Id.

In Brown, however, one of the conditions for the defendant's release on bail was that the defendant appear at the start of the trial. Thus, it was clear that the Brown defendant knew his trial date. [18] [ 50 ] The Supreme Court, on the other hand, emphasized the express use of the limiting phrase in Rule 43 : A defendant must be present at every stage of trial « except as otherwise provided ». A straightforward

interpretation of the language and structure of the Rule precluded any trial in abstentia of an accused who was not initially present at the start of the trial. Accordingly, the Court ordered a new trial.

[51] Just as importantly, the decision in Crosby affirmed that the distinction between flight before the trial begins and flight mid-way into the trial is logical. To begin, there is an economic rational to the Rule as the costs and inconveniences of postponing a trialunderway are greater than the costs of postponing a trial that has yet to begin : While it may be true that there are no "talismanic properties which differentiate the commencement of a trial from later stages,"Government of the Virgin Islands v.

Brown, 507 F.2d 186, 189 (CA3 1975), we do not find the distinction between pre- and midtrialflight so farfetched as to convince us that Rule 43 cannot mean what it says. As a general matter, the costs of suspending a proceedingalready under way will be greater than the cost of postponing a trial not yet begun.

If a clear line is to be drawn marking the point atwhich the costs of delay are likely to outweigh the interests of the defendant and society in having the defendant present, thecommencement of trial is at least a plausible place at which to draw that line.[19] [52] Next, the initial presence of the accused serves to reassure that any waiver of rights is known : There are additional practical reasons for distinguishing between flight before and flight during a trial. As did Diaz, the Rule treatsmidtrial flight as a knowing and voluntary waiver of the right to be present.

Whether or not the right constitutionally may be waived inother circumstances—and we express no opinion here on that subject—the defendant's initial presence serves to assure that any waiver isindeed knowing.

"Since the notion that trial may be commenced in absentia still seems to shock most lawyers, it would hardly seemappropriate to impute knowledge that this will occur to their clients." Starkey, Trial in Absentia, 54 N.Y.St.B.J. 30, 34, n. 28 (1982).[20] —Policy reasons justifying the waiver of the accused’s right to be present [53] Absconding from trial should not be an accused’s ticket to escape criminal responsibility; otherwise, there is a risk that justicewill never be done.

At paragraph 119 in Garofoli, supra, Martin J.A. explained the matter as follows : We have held that an accused cannot be allowed by absconding to thwart the trial process.

We would completely erode or nullify thatprinciple if the absconding accused could, nevertheless, thwart the trial process in those circumstances where his counsel, upon theaccused having been found to have absconded, properly has ceased to act for him and withdraws. [54] A similar public policy concern had been expressed by the Ontario Court of Appeal in its previous decision in R. v.Tzimopoulos, (ON CA) : It is plainly unacceptable to allow an accused to abort the trial process and bring the course of justice to a halt by his own act ofabsconding during the trial.

Section 431.1 [now s. 475] provides the court with a discretion which it may exercise according to thecircumstances of the particular case to see that justice is done by either continuing the trial in the absence of the accused, adjourning thetrial or declaring a mistrial. The limitation imposed by the

section on the accused's right to be present in such circum​stances is, in ouropinion, both patently reasonable and demonstrably justified. (Parenthesis added) [55] While the right of an accused to be present at his trial and give full answer and defence are fundamental and guaranteed by s. 7of the Canadian Charter of Rights and Freedoms, they are not absolute and must be measured against the corresponding rights of others and of society in the due administration of justice.[21] A constitutional right may be waived. In a decision upholding the constitutionalityof

section 475 of the Criminal Code, Regina v. Czuczman,), (ON CA), Brooke J.A., writing for the Court, stated theissue as follows : In our system, the right of an accused to be present to face his accuser and cross-examine him, to give evidence, to make full answer anddefence and generally to participate in the trial are fundamental. Fairness demands no less than this, s. 577(1) of the Code requires thisand the Charter guarantees this. But, constitutional rights are not absolute and their scope must be measured against the correspondingrights of others and of society in the due adminis​tration of justice.

Accordingly, the question whether s. 431.1(1) [now s. 475] offendsthe sections of the Charter must be tested having regard to these other rights. In light of these other rights, can a trial which proceeds in the absence of an accused who deliberately absconds nevertheless be a fair trial?[22] (Parenthesis added) [56] It is not in the interest of justice that a trial be postponed indefinitely simply because an accused has voluntarily chosen not toattend. As explained by Justice Brooks : …it offends a basic principle of fundamental justice if the trial must be aborted because the appellant absconds.

In my view, s. 431.1(1)[now 475] of the Code does not offend any right guaranteed by s. 7 of the Charter and this ground of appeal fails. (Parenthesis added) [57] The decision of the Court in Czuczman, supra, quoted as authority the British case of R. v. Jones, supra and the American caseof Taylor v. U.S. (1973), 94 S.Ct. 194. In Jones, Lord Nolan, at paragraph 18, explained that an accused who voluntarily absents himselffrom the trial has waived his right to be present at his trial.

Also, the fact that he was represented by counsel from the start of theproceedings should allay any qualms that his actions were deliberate : [I]t would seem to me that, where, as in the present case, a defendant has had the advantage of legal advice and representation at allstages prior to the commencement of the trial, his deliberate and conscious choice to take no further

part in the proceedings couldpermissibly be described as a waiver of his rights of attendance and of legal representation at his trial, both at common law and underarticle 6 of the Convention. [58] In Taylor, supra, the issue before the Supreme Court of the United States was whether the accused’s voluntary absence from histrial violated his sixth amendment right to be present at his trial and to confront the witnesses against him.

In holding that the ruleallowing for the trial of an absconding accused to proceed was constitutional, the Court, at page 18, stated : There is no challenge to the trial court's conclusion that petitioner's absence from the trial was voluntary, and no claim that thecontinuation of the trial was not authorized by Rule 43. Nor are we persuaded that Rule 43 is unconstitutional or that petitioner wasdeprived of any constitutional rights in the circumstances before us. Rule 43 has remained unchanged since the adoption of the Federal

Rules of Criminal Procedure in 1945; and with respect to the consequences of the defendant's voluntary absence from trial, it reflects the long-standing rule recognized by this Court in Diaz v.

United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912) : "[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.

" (Emphasis added) [ 59 ] An accused who consciously and voluntarily absents himself from his trial is ill-placed to complain about trial fairness. As Lord Nolan explained in Jones, supra , at paragraph 18, having waived his right, he cannot protest the outcome of the trial by claiming that the trier of the facts did not hear his account of facts : [O]ne who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.

If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts.

If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented. [ 60 ] An absconding accused not only waives his right to be present at trial, but also forfeits his right to be represented by counsel : As Martin J.A. explained in Garofoli , supra, at paragraph 117 : In my opinion, an accused who absconds during the trial has not only waived his right to be present at his trial, but, generally speaking, has forfeited his right to be represented by counsel where counsel thereupon properly ceases to act, An accused who absconds must expect that his counsel may withdraw from the ease.

In many, if not most, cases, the accused by absconding has by his own act precluded his counsel from effectively representing him and it is unfair to counsel to require him or her in the circumstances to continue to represent him. —Interests of justice [ 61 ] Obviously, the public interest in the proper administration of justice is best served when an accused is present at his trial.

If he is absent from the proceedings, the unchallenged evidence of the prosecution may erode the public confidence in the reliability of the conviction : [23] It is a mistake, moreover, to consider the question only with reference to the prisoner. The object of a trial is the administration of justice in a course as free from doubt or chance of miscarriage as merely human administration of it can be— not the interests of either party.

This remark very much lessens the importance of a prisoner's consent, even when he is advised by counsel, and substantially, not, of course, literally, affirms the wisdom of the common understanding in the profession, that a prisoner can consent to nothing. [24] [ 62 ] There are, however, circumstances where in the interests of justice a judge is entitled to decide to proceed in spite of the absence of the accused, particularly when the defendant has deliberately absconded to avoid trial. [25] One of those circumstances is the inconvenience, stress and anxiety incurred by witnesses and victims who have been waiting for justice to take its course.

Not without concern, there is a risk of losing evidence as some witnesses or victims may be less disposed or willing to return to court at a later unspecified date. In this regard, Lord Hutton in Jones, supra , at paragraph 28, quoted with approval the following comments of the trial judge : There are 35 live witnesses due to give evidence today some of whom are civilians who must have experienced a quite terrifying event when they were held up by armed masked men and this robbery took place. Some of the civilian witnesses have already indicated that they are less than happy to attend on a future occasion.

Some of the prosecution witnesses have already been dispensed with because of the concern that they have about continual delay … In normal circumstances I am bound to say that my reaction initially to the proposition was that it would seem wrong to pursue any criminal trial, and particularly one as serious as this, in the absence of either a defendant or indeed in the absence of any assistance from counsel or solicitors on their behalf.

But on the other hand there is another competing interest which seems to me to take precedence over that particular one and that is that there are 35 witnesses outside court who have come here for the second time today and who are anxiously awaiting the prospect of having to give evidence and in view of the defendants' deliberate absenting of themselves the trauma that some of them have experienced during the course of this incident is unlikely to go away until such time as they actually have had this case finally dealt with either with the defendants pleading guilty, which is obviously not their intention, or indeed the trial taking place and a jury coming to a decision.

This is a strong case for the prosecution where clearly the defendants have frustrated and deliberately frustrated the authorities in trying to have this case finally concluded … I cannot in all conscience feel that it is appropriate that those witnesses should be made to wait for what could be 6, 12, 18 months, two years or some other period of time well into the future by which time some may not be willing to give evidence, some may have passed on, some may have gone to another part of the world, emigrated: all sorts of problems can arise which would then be to the advantage of these absent defendants. [ 63 ] In assessing the interest of justice in proceeding with a trial in abstentia , a court should take into consideration the following factors : • Criminal proceedings should be prosecuted in a timely manner;

• The stress and anxiety incurred by victims and witnesses who must wait indefinitely for the trial to commence and to be done with; • The waste of time and money for victims and witnesses who have made arrangements to attend the trial only to find out that the accused has absconded; • The risk of losing evidence on account of the fact that some witnesses or victims will be less likely to attend at a later date; • The risk that the testimonial evidence will be less efficient and credible on account of memories fading due to the passage of time; • The costs for the court (the allocation of courtroom personnel and courtroom space for the trial); • The burden for the court in terms of rescheduling a new trial if a postponement is granted (securing available courtrooms and ensuring that the schedules of all the participants, attorneys and witnesses alike, are in sync). [ 64 ] To the afore-mentioned checklist, one should by mindful of the fact that it is not in the interest of justice that the resolution of a trial be indefinitely delayed on account of an accused’s conscious decision to abscond.

To quote, once again, from the decision of in R. v. Tzimopoulos , supra : An accused person should not be able to thwart the rights of others and of society by deliberately absenting himself from his trial. Balancing his rights against those of others and of society with respect to the trial, it is fair that the trial proceed and indeed, in my opinion, it offends a basic principle of fundamental justice if the trial must be aborted because the appellant absconds. Application Did the accused abscond? [ 65 ] I am convinced that the accused has consciously and voluntarily decided to absent himself from the trial.

From his conduct, I am also convinced that there is little chance that he will come back to the country and voluntarily hand himself over to the authorities so that justice might take its course. In the following section, I will detail the facts or circumstances of the case that lead me to this conclusion. • The accused is living in a foreign jurisdiction [ 66 ] Though his lawyer was present at the application hearing in order to ask permission to withdraw as the attorney of record, he did not have a precise answer as to the whereabouts of his client.

All we know is that he’s working abroad as a physiotherapist and that he is waiting for surgery in Dubai. • The accused’s questionable status in Canada [ 67 ] During the ex parte hearing, I was informed that the accused’s status while living in Canada was that of permanent resident. A document by the Canadian Border Services Agency indicates that the last time the accused re-entered Canada was in February 2017.

Though the document doesn’t stipulate when the accused would have left the county, we know that he was here for his preliminary hearing in the summer of 2017. • Failure to appear at the disciplinary hearings of his professional order [ 68 ] I was apprised by Crown counsel that the accused failed to appear for a hearing before the disciplinary board of the professional Order of Physiotherapists of Quebec in March and June of 2018.

The Board’s decision—rendered in his absence—was not filed as evidence in the present matter so as not to taint the mind of the undersigned in the event that the trial proceeded ex parte . [ 69 ] The accused’s want of interest in defending himself before a disciplinary board so as to maintain the right to practice his profession and earn a living in Canada suggests that he has no professional reason to come back to the country.

Also, it may suggest that the accused is the type of individual who is not inclined to attend hearings regarding his wrongful acts (be they those of a disciplinary board or those of a criminal court). • The refusal to postpone the case [ 70 ] On February 1, 2019, I had dismissed the accused’s application to postpone the trial. As explained earlier, the accused’s purported medical condition did not justify an adjournment. Nothing in the laconic report of his physician indicated that he was unfit to attend his trial.

Though the report indicated that surgery was in order, there was nary a mention of the date the surgery would take place. What is more, the delays occasioned by an indefinite date for surgery would have been compounded by the additional delay necessary for post-op rehabilitation. [ 71 ] Though waiting for surgery before coming back to Canada for his trial might have been more convenient for the accused, it could not justify a postponement.

Granting the accused’s application would have had the unfortunate consequence of delaying the trial until the accused is good and ready to come back to the country. • The accused was apprised of my decision rejecting his application for a postponement [ 72 ] On February 22, 2019, (the Friday before the trial was set to begin on the following Monday) his attorney informed me by email that his client would not attend his trial for medical reasons.

No additional medical evidence was given to buttress the scant medical grounds in support of the postponement application I had rejected circa three weeks earlier. [ 73 ] The accused had received fair warning that the trial would take place as scheduled on Monday, February 25, 2019. Despite my decision refusing the postponement, he consciously and voluntarily made the decision not to attend his trial. He was, for all intents and

purposes, thumbing his nose at the Court. [ 74 ] In sum, the accused failed to appear without sound reason. In examining all of the evidence—including the medical grounds advanced by the accused—there was no factor that could justify his failure to appear. [ 75 ] Nor did the accused have any reason to believe that the trial wound not proceed without him or that his attorney could make further representations with regards to a postponement. For that matter, the accused was apprised of the fact that his attorney would be petitioning the Court to withdraw as counsel of record.

The said petition was presented on the first day the trial was slated to begin and it was granted. —Did the trial begin? [ 76 ] Finding that the accused has absconded is not enough to warrant a trial ex parte . As we have seen,

section 475 of the Criminal Code states that for indicatable offences the accused had to have absconded « during the course of his trial ». [ 77 ] In the present matter, the accused absconded before any evidence on the merits of the case was presented in court. A formal indictment was never filed and read into the record. Nor did he enter a plea. In the narrowest sense of the word, the actual trial of the accused (on its merits) had not begun . [ 78 ] This being said, I am of the view that the circumstances of this case lend themselves to a broader

interpretation of the date marking the beginning of the trial. More particularly, the trial began with the accused’s application to postpone the trial. In support of this position, one will recall the case law holding that the starting date of a trial includes all preliminary motions presented before the case management judge or the trial judge. In the present matter, there was no case management judge; nor were there any preliminary motions to exclude evidence or to rule on Charter issues.

However, on February 1, 2019, a little more than three weeks before the start of the trial, I was asked by the accused (via his lawyer) to rule on an application to postpone the trial. [ 79 ] Though the accused was physically absent from the hearing, representations were made as if he was in the court room. He was represented by his attorney and evidence was filed in support of his motion to postpone the trial with no objection from Crown counsel. [ 80 ] If the accused had been physically present at the postponement hearing, he would have been the one filing the medical report into the record.

Instead, it was filed by the person legally mandated to represent him and to present arguments on his behalf—his attorney. [ 81 ] Also, the application to postpone the trial was presented before me because I was designated to be the trial judge. On January 15, 2019, I had sent the parties a letter advising them that I would be presiding the trial and that any preliminary issues should be brought before me. [ 82 ] Since the trial began when I presided over the accused’s petition to postpone the case on February 1, 2019, the accused’s failure to attend his trial on February 25, 2019 constitutes

an act of absconding « during the course of the trial ». [ 83 ] While economic reasons could favour a strict application for distinguishing between an accused who takes flight before trial and an accused who takes flight in mid-trial, such distinctions are not applicable here. One will recall that counsel for the defense only advised Crown counsel and myself on Friday at 3:30 p.m., February 22, 2019, that the accused would not attend. The trial, however, was scheduled to begin the following Monday, February 25, 2019.

For all intents and purposes, notification that the accused would not attend came on the eve of the trial date. By this time, it was too late to advise all the complainants and the witnesses that the trial would be postponed. Two of the complainants, E.C. and I.T. were self-employed and had to make plans to rearrange their schedules. V.V. took time off from work. E.C. had even made arrangements for a support person to accompany her during her testimony.

Another one of the complainants, H.V., had flown in from out of the country to testify. [ 84 ] It was also late in the process to allow for the efficient reallocation of court resources. The trial was fixed for five consecutive days. An English-French interpreter was also reserved for the trial. [ 85 ] No doubt, the formal filing of an indictment and the accused’s plea to the charges therein are factors to be considered in marking the starting point of a trial.

In the present matter, however, their importance was mitigated by the following circumstances : • No new charges in the proposed indictments The counts appearing on the two sworn information sheets are identical to the counts that appear in the two indictments that the Crown proposes to file in the event of an ex parte trial. The preliminary hearing of the accused—held on two separate dates in the summer of 2017—concerned the exact same counts that appear in the indictment the Crown wishes to file. All of the complainants named on the sworn charge sheets testified at the hearing.

Hence, for the accused, there could be no surprise with respect to the nature of the charges and the evidence against him. For that matter, he has a very clear picture of the peril he faces. • A plea by any other name…(Trial postponements denoting the implicit will of the accused to challenge the Crown’s case). One will recall that in the case of Bolduc , supra, the particular circumstances of the case diminished the usual importance of a formal plea as marking the beginning of a trial.

In particular, Chamberland J.A. noted that the accused—via his lawyer—wanted to enter a plea at the first day the case was slated to trial. Were it not for the refusal of the trial judge to accept the plea, the absence of a formal plea as a bar to the start of the trial would have been a moot point. Owing to the circumstances, it was clear that the accused intended to challenge the Crown’s case, regardless of whether a formal plea was entered or not. By analogy, the same reasoning could be applied in the case at bar. This is the third time the case has been fixed for trial. In scheduling a

trial three times, one can assume that the accused, on each occasion the trial date was set, wanted to contest the charges against him. Had the trial proceeded on the two previous occasions, the filing of the indictment and the entering of a plea in the present matter would have been moot points. For that matter, I would never have been seized of the present application to proceed ex parte , the trial would have been concluded a long time ago.

In asking for another postponement of the trial, the accused is implicitly stating that he maintains his innocence or that he wishes to contest the Crown’s ability to prove its case. Otherwise, he would simply be inconveniencing the complainants and the witnesses one more time for no good reason at all. —Societal interest in proceeding [ 86 ] A trial in abstentia doesn’t sit well with our adversarial form of justice—and more particularly with an accused’s fundamental right to be present at his trial and to confront the witnesses against him.

Judges should be reluctant to order trials in abstentia unless the interests of justice to proceed clearly outweighs the interests of the accused who has absconded. [ 87 ] In the following section, I will set out my reasons for ruling that the interests of justice dictate that the trial proceed in the absence of the accused. Justice delayed is justice denied [ 88 ] It is in the public interest that criminal proceedings should be prosecuted with dispatch.

As the Court explained in Jordan , supra , at paragraphs 25 and 26 : Timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin , “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice ( see Askov , at p. 1220).

Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221). Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” ( Askov , at p. 1221). [ 89 ] In the present matter, the information was sworn circa 28 months ago.

We are almost at the Jordan ceiling of 30 months for completing a trial of an accused charged with an indictable offence. The trial has already been adjourned on two separate occasions; another postponement would only add to the delays and surely breach the Jordan ceiling. [ 90 ] On the matter of delays, I am also concerned by the fact that a subsequent trial date will have to depend on the date scheduled for the accused’s surgery. Unfortunately, this date is not known.

Then, the delays would be compounded by a period of three to six months of post-op rehabilitation. [ 91 ] I have already ruled that the accused’s purported medical condition does not render him unfit for trial. The completion of this case, cannot be made to depend on the whim of an accused who solicits additional delay merely to suit his own convenience. Postponing the trial and mounting delays risks compromising the quality of the Crown’s case [ 92 ] This ground is also tied in with importance of a speedy trial.

Essentially, with additional delays comes the risk of rendering the testimonial evidence less credible on account of memories fading with the passage of time. Also, certain complainants might be so frustrated by the process that they will be less inclined to testify when the matter comes for trial once again. In the present matter, one of the witnesses came from abroad in order to recount her story of sexual assault. In the event that the trial would be postponed, there is no assurance that she will once again make the effort to come to Canada to testify.

Inconvenience to the complainants and witnesses [ 93 ] The complainants in this case would have been greatly inconvenienced by a last minute postponement. As mentioned previously, they had all made special arrangements to testify at the trial. [ 94 ] The complainants have a legitimate expectation of having their day in court and to see that justice is done. This expectation should not be thwarted by the accused who simply decides that he won’t participate in the proceedings. [ 95 ] Waiting to give testimony in this matter has also been a source of great stress and anxiety for all the complainants.

They wish to be done with the trial and go on with their lives. Postponing the trial indefinitely would only prolong their misery. [ 96 ] Considerations for the witnesses is inextricably linked with the importance of proceeding without undue delay in criminal matters.

Proceeding with dispatch in criminal matters is not only of interest to the accused but also for the complainants. [26] Costs [ 97 ] Considerable resources were set aside for the accused’s trial: a court room was reserved for five consecutive dates starting February 25, 2019; the prosecution had secured the presence of the four complainants (including one who came from abroad); two investigators were taken off their normal duties in order to assist the Crown and eventually testify; and a French-English interpreter was retained so that the accused, an English-speaker, could understand the testimony given by French-speaking complainants and witnesses.

Unfortunately, it was only at the 11 th hour before the trial was scheduled to start that the accused gave notice that he would not attend. By that time, it was too late to inform the complainants and the witnesses that their presence was no longer required. Also, the late

notification did not give the Court the necessary time to efficiently reallocate its limited resources. Court trial time is a precious commodity. [27] [ 98 ] Postponing the case would also have logistical consequences. In particular, setting a new trial date will have to contend with the difficulties of reserving a period of one week that falls into sync with the schedules of complainants and witnesses while taking into consideration court-room availability. The said difficulty is compounded by the fact that one of the complainants does not live in the country.

On a matter of principle : The actions of an absconding accused should not thwart the course of justice [ 99 ] The accused in this matter has made the decision not to attend. In so doing, he has waived his rights to be present at his trial and to confront the witnesses against him. Issuing a bench warrant for his arrest would not secure his presence at a later date as he now lives outside the country.

If the Court doesn’t proceed in abstentia , there is a risk that justice will never be done. [ 100 ] The course of justice should not be undermined because an accused has simply decided that he won’t attend his trial. As the Court of Appeal of Ontario explained in Tzimopoulos , supra, at paragraph : An accused person should not be able to thwart the rights of others and of society by deliberately absenting himself from his trial.

Balancing his rights against those of others and of society with respect to the trial, it is fair that the trial proceed and indeed, in my opinion, it offends a basic principle of fundamental justice if the trial must be aborted because the appellant absconds.

CONCLUSION [ 101 ] Considering that the accused has absconded from his trial; [ 102 ] Considering that the trial began on February 1, 2019 when the accused—via his counsel—filed an application to postpone the trial; [ 103 ] Considering that the interests of justice to proceed with a trial outweighs the interests of the absconding accused to be present at his trial, I order THAT the trial of the accused proceed in his absence. __________________________________ SALVATORE MASCIA, J.C.Q. Me Pierre-Olivier Bolduc Attorney for the Plaintiff