R. v. Kalejaiye, 2020 ONCJ 422

CITATION: R. v. Kalejaiye , 2020 ONCJ 422 DATE: July 30, 2020 Information No. 2811-998-19-00692-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. ISAAC KALEJAIYE E X C E R P T O F P R O C E E D I N G S (Ruling on Application) BEFORE THE HONOURABLE JUSTICE B. GREEN on July 30, 2020, at OSHAWA, Ontario APPEARANCES : K. Alderton/K. Myge C. Counsel for the Crown De Giorgio/S. Ponnampalam Counsel for Isaac Kalejaiye R U L I N G O N A P P L I C A T I O N GREEN, B. (Orally): The Crown has applied for two witnesses to appear via video link. The reasons for the request are fully outlined in paragraph 3 of the Crown's application. In

summary, Mr. Miller lives in Kingston where there are no reported cases of COVID-19. He has not left Kingston since the outbreak of COVID-19 in March. In contrast, Durham has active cases. That is not in the Crown's application. I am just noting that. Durham does have active cases currently. Mr. Miller has a child who has asthma and he is concerned about his child's wellbeing. Understandably, he does not want to travel outside Kingston. Mr. Muraki is a long-haul truck driver who passes the border to the United States on a regular basis. He is exposed to all sorts of people on a daily basis.

Currently, the United States has thousands of active cases and over 150,000 deaths. Mr. Muraki is responsibly acknowledging that he is in a high-risk group which is his choice due to his profession, but he does not wish to potentially expose other people to the virus. Counsel opposes the Crown application for two reasons. First, he is opposed to the application because the Crown did not provide sufficient notice in compliance with the criminal rules of the Ontario Court of Justice and the Crown did not provide affidavits in support of the application.

I note that we are in the midst of a global pandemic that has resulted in the unprecedented closure of our courts for the past four months.

In that period of time, Crown Attorneys in this jurisdiction have been working tirelessly to find solutions to avoid the seemingly inevitable collapse of the court system under the weight of hundreds of adjournments. They have been tasked with reviewing all cases to determine if it is still in the public interest to prosecute in light of the circumstances. They are required to participate in pretrials for every trial matter that was previously pretried and has now been collapsed.

Most importantly, they have concentrated their efforts on reducing the population of inmates in forced congregated settings in the jails by offering mitigated pleas, altering the bail positions, and addressing additional bail reviews. Understandably, the Crown's office has been overwhelmed. Counsel's position that the motion ought to be dismissed because the Crown did not file on time, even though his client has not been prejudiced in any way, is unreasonable. These rules are designed as a shield to protect the fair trial rights of the accused.

They were not intended to be used as a sword to dismiss a meritorious application when the delay in serving the application is completely understandable. Secondly, counsel has objected to the absence of supporting affidavits. Obviously, it is difficult to obtain signed documents when these two witnesses are afraid to be exposed to the virus or they are afraid to expose other people to the virus. If counsel needs more of an evidentiary basis, there is certainly plenty of evidence available about the ongoing crisis. Any rational, well-informed member of the public is afraid.

In the unique circumstances of a global pandemic, it is disappointing that counsel was not prepared to forego the formalities of the affidavit and the 30-day timeline. I am prepared to proceed in the absence of an affidavit. Finally, counsel objects to this application on the substantive ground that his client's fair trial rights are impacted by the inability to confront these witnesses face-to-face which is important to assessing their credibility. It is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials.

As Justice McLachlin stated in R. v. O'Connor : The [ Canadian ] Charter [ of Rights and Freedom ] guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. This decision was dealing with appearing via video for sexual assault complainants.

"Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice." Fundamental justice embraces more than the rights of the accused. The assessment concerning a fair trial must not only be made from the point of view of the accused, but the community and the complainants, and the witnesses. The community includes, from my perspective, the staff in this courtroom.

While there have been measures put in place to protect anyone who enters the courthouse, there are no guarantees that those measures will protect all of us from the virus. The court staff have been deemed essential services and they have been in the courtroom every day since the start of this pandemic. Moreover, the physical presence of counsel, the Crown, and the judge is necessary to ensure the proper functioning of a trial. I have a duty to consider the ongoing safety and protection of the participants in the Criminal Justice System.

One way to achieve that goal is to reduce the number of people entering and exiting the courtroom, particularly someone in a high-risk profession like Mr. Muraki. I am satisfied that it is appropriate having regard to all the circumstances in the midst of a global pandemic that the Crown has been able to ensure that there is a suitable location for the witnesses to provide their evidence. The solemnity of the process will be impressed on them by swearing or affirming to tell the truth.

I will address any issues as they arise by asking any witness who appears by video to indicate and assure counsel and the court that none of the other witnesses are present with them or in their homes while they are testifying, and ensuring that they are in a setting that is free from any distractions. The accused's right to a fair and public hearing is not, in any way, detrimentally impacted. The nature of the offence is dangerous driving and these are independent witnesses to the driving.

And any potential prejudice, if any to the defendant, can be attenuated by patience and working cooperatively to ensure the smooth functioning of the video appearance of the witnesses. The technology being used is ZOOM and JVN that permits exhibits to be shown to the witnesses virtually through screen-sharing process. Face-to-face confrontation of a witness is not essential for the truth to be discovered in these proceedings. Mr. Miller and Mr. Muraki will be permitted to appear by video pursuant to S. 714.1 of the Criminal Code .

I note, however, to warn the Crowns, if at any point it appears that the video process becomes disruptive to the proceedings I will invite counsel to renew his application and indicate that we cannot possibly proceed further. ...END OF EXCERPT AS REQUESTED