R. v. Ellis, 2021 BCPC 332

Citation: R. v. Ellis 2021 BCPC 332 Date: 20210203 File Nos: 41820-1, 41820-2-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TANYA LEE ELLIS ORAL RULING RE ABSENCE OF ACCUSED OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B. Lansdowne Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Ruling: February 3, 2021 [ 1 ] THE COURT: This is Ms. Ellis's application for an order giving her leave to be absent from the sentencing hearing, which was

to commence this morning. I am aware that this matter was adjourned previously, back in September of 2019, due to Ms. Ellis's absence at that point in time. I was advised this morning by counsel for Ms. Ellis that Ms. Ellis has been admitted to the local hospital, and is undergoing treatment for what may be an infection, and there may be other issues related to her health. [ 2 ] While we stood down to allow counsel to speak with Ms. Ellis, her counsel was able to confirm with Ms. Ellis that Ms.

Ellis consents to this hearing proceeding in her absence, she consents to the evidence of the two experts in this hearing proceeding in her absence, and she also consents to the entering of pleas being entered in her absence. Ms. Runyon has advised the court that she went through the agreed statement of facts, which will be read into the record, and/or entered as an exhibit, and that Ms.

Ellis confirmed her agreement and consent to those facts as set out in the draft agreed statement of facts that is before me. [ 3 ] The evidence expected to take place today and tomorrow involves not only the agreed statement of facts, but also evidence from Constable Jones, who is a drug expert tendered by Crown counsel; the other expert is Dr.

McNeil, who is expected to give evidence in relation to harm reduction and other aspects of the population suffering from substance-use disorder. [ 4 ] I am aware that this is an important case, in that defence is going to be asking me to reassess the sentencing ranges and the approach to sentencing in cases involving individuals suffering from substance-use disorders. I am aware, given my past dealings with Ms. Ellis, that she is one of the population that is affected with a substance-use disorder. [ 5 ] Counsel for Ms. Ellis advised me that while Ms.

Ellis reported that she was not feeling well, and that she sounded ill, she was able to discuss what was occurring today and tomorrow with her client, and I take from her comments to the court that she is satisfied that Ms. Ellis is aware of the decisions that she has instructed her counsel to communicate to the court, and understands that she is giving up her right to be here in person for this hearing. [ 6 ] I refer to s. 650 of the Criminal Code which states: Subject to subsections (1.1) to (2) and

section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial. [ 7 ] There are exceptions, and at sub (2) of s. 650: The court may (

b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper [ 8 ] Lastly, subsection (3): An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. [ 9 ] I also refer to s. 650.01 (3): If a designation is filed, (

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

i) a part during which oral evidence of a witness is taken, and going to sub (c): a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise. [ 10 ] What these sections clearly contemplate is that there is a discretion in the court as to whether or not an accused ought to be present during part of a trial or a hearing, such as this, involving a sentencing hearing, which will of necessity involve entering of guilty pleas. [ 11 ] I was able to review the decision R. v.

Pazder , 2015 ABQB 493 , and found it quite helpful in summarizing a variety of decisions that contemplated specifically s. 650(2)(b), which permits the court to allow an accused to be out of court during the whole or part of a trial on such conditions. [ 12 ] It is clear that a number of principles can be distilled from this decision, and one is that we must not lose sight of the fact that this is Ms. Ellis's right to be present at her trial, and the reason for that is so that an accused, Ms.

Ellis, is able to mount a defence, but secondly that she can see the entire process and is able to ensure that the correct procedure is followed, and that the process is fair. [ 13 ] I also accept that this remedy of allowing someone to be out of court during the process or a hearing such as this ought to be granted rarely, and in exceptional circumstances. [ 14 ] I refer to paragraph 250 of the Pazder decision through to paragraph 252, and I quote: The court should never make a s 650(2)(

b) order, no matter its potential benefits, if that absence affects in a negative way the ability of the accused to have, and to see that he or she is having a fair, open, and impartial trial. There is much about a trial that is not recorded in the transcript or the electronic recording. This includes body language, the response of witnesses to questions, the level of emotion or apprehension on the part of the witnesses, the interaction between judge, counsel, and witnesses. Thus, the status quo remains that a s 650(2)(

b) absence is the exception rather than the norm. Where, however, an absence can be permitted without prejudice to the accused, and without it bringing the administration of justice into disrespect, the accused must nevertheless have a good reason to be absent. Case law has identified a number of legitimate bases for an

absence. One is that the accused has a medical condition..[cites omitted] This may include a mental condition, such as a fragile schizophrenic whose fitness for trial and medication program would be stressed by a court attendance..[cites omitted]. [ 15 ] I also refer to paragraph 257: I interpret Criminal Code , s 650(2)(

b) as one which grants judicial discretion. While most of the cases to date on this area of the law relate to economic hardship or medical circumstance, I do not believe that the drafters of s 650(2)(

b) intended that there be any such limitation, and therefore s 650(2)(

b) should be used, after careful balance of all the factors, to achieve a just result. The court’s focus should remain that it should not depart from the normal process and procedure, and therefore will not lightly permit a person facing trial to be absent from that proceeding. [ 16 ] There are a number of factors that the court may consider in coming to a determination as to whether the discretion ought to be ordered under this section.

Those relevant factors were helpfully set out at paragraph 261 of the Pazder decision, and I set those out as follows, and this is recognized as a non-comprehensive list: 1. the reasons for the request, 2. the strength or experience of counsel, 3. whether the absence will unreasonably impede the trial or inconvenience co-defendants or Crown, 4. whether the accused will still be represented by counsel in his or her absence, 5. the issues to be dealt with in the absence of counsel or accused, 6. whether there is a formal written waiver, and 7. the type of trial (jury vs judge alone), or trial process ( voir dire or actual trial). [ 17 ] In this particular case, the reasons for the request are that Ms.

Ellis suffers an underlying serious health issue, which is substance-use disorder. She has been admitted to hospital this morning, is not well, and is undergoing treatment, and likely further assessment to determine the cause of her illness. This is a valid request. This is not an attempt to simply avoid her hearing today. [ 18 ] Two, the strength or experience of counsel. Ms. Runyon has represented Ms. Ellis for a lengthy period of time, and I also acknowledge that Ms. Runyon is certainly recognized as very experienced and very competent counsel in Campbell River, and other areas, and I have confidence in Ms.

Runyon's ability to properly and thoroughly represent Ms. Ellis, if Ms. Ellis is absent. [ 19 ] Third, whether the absence will unreasonably impede the trial or inconvenience co-defendants or Crown. Ms. Ellis's absence would not impede this trial, and in fact not allowing her absence would impede and further delay this hearing. I am aware that Dr. McNeil is an extremely busy expert, who is often required to provide submissions, to be a speaker, and to consult with other organizations, and I recognize the difficulty in scheduling an expert such as Dr. McNeil, or even Constable Jones for that matter.

I am of the view that not allowing Ms. Ellis her application would very likely delay this hearing even further, and likely at least several months. [ 20 ] The next factor, whether the accused will still be represented by counsel in her absence. I have already commented on that, Ms. Runyon will be present throughout the full two days of the hearing. [ 21 ] Five, the issues to be dealt with in the absence of the accused. In this case, the issues are the plea, which will be entered, the agreed statement of facts, and the evidence of two experts. The evidence of Dr.

McNeil, and Constable Jones for that matter, is evidence of impartial expert testimony, it is going to be heard in a judge-alone trial. This is not a consideration in which body language or covert communications or level of emotion and responses of witnesses would expect to be a major role in the two-day hearing. [ 22 ] Six, whether there is a formal written waiver. There is not a formal written waiver, however, Ms. Runyon has indicated on the record to the court Ms.

Ellis's request that she not be present during this hearing today and tomorrow, that she understands she is giving up her right to be here in person, and that there would not be an appeal launched on the basis that she was not present today or tomorrow, and she understands that at the point when this hearing is adjourned, so that she can give her evidence, she will be expected to be present. [ 23 ] Lastly, the type of trial and the trial process. As I have indicated, this is a judge-alone, not a jury trial. This is a Gardiner hearing. The experts' qualifications would be heard in a voir dire .

This is not a typical or actual trial to determine the guilt or innocence of an accused because Ms. Ellis is going to be, through her counsel, entering guilty pleas. [ 24 ] The last comment I would make is I am aware that throughout this matter, it has always been the intention to enter guilty pleas on behalf of Ms. Ellis. Ms. Runyon has been before me confirming that, and has indicated to the court that this was always discussed with Crown counsel on the understanding that there would be an agreed statement of facts, which has been thoroughly canvassed with Ms.

Ellis. [ 25 ] For all those reasons, I am satisfied that this is an exceptional circumstance. I recognize that Crown has opposed this application, and would prefer to adjourn this matter, but I am of the view, given these circumstances, given the nature of the evidence that I will be hearing, that the prejudice in fact would be to further delay the proceeding if Ms. Ellis's sentencing hearing has to be adjourned so that she can attend. I am also aware that there was some concern expressed about Ms.

Ellis's ability to maintain attendance throughout this hearing given her underlying health conditions. [ 26 ] On that basis, I am prepared to allow Ms. Ellis's application. She will be given leave to be absent during the hearing today and, if she is still unwell, tomorrow.

[ 27 ] There will be the following conditions. I would ask counsel to inquire as to Ms. Ellis's condition at the end of the day, if that is possible, certainly by tomorrow morning, and to advise the court as to Ms. Ellis's condition. If she is well enough to attend then I would expect that she would attend the hearing tomorrow. [ 28 ] The next condition would be that, if she can, Ms. Runyon is to advise Ms. Ellis of the proceedings that have occurred today, just generally the nature of what has occurred during the day today and tomorrow. I contemplated whether or not transcripts would be ordered.

I know those are often very costly. I do not think that is necessary given that there were written summaries of both experts that have been provided, but I would expect that those be provided to Ms. Ellis. (JUDGMENT CONCLUDED)