R. v. Gibbs, 2018 NLCA 26

Her Majesty the Queen in Right of Newfoundland and Labrador (appellant) v. Eugene Gibbs (first respondent)* and Her Majesty the Queen in Right of Canada (second respondent) (14/98) Indexed As: R. v. Gibbs 2018 NLCA 26 2 C.A.N.L.R. 710 Court of Appeal of Newfoundland and Labrador Green C.J.N.L.**, Harrington and Hoegg JJ.A. May 8, 2018 IN THE MATTER OF an appeal by Her Majesty the Queen in Right of Newfoundland and Labrador from the dismissal by the Supreme Court of Newfoundland and Labrador, sitting at Grand Bank, of an application for certiorari, mandamus, and prohibition directed to a judge of the Provincial Court of Newfoundland and Labrador, Docket Numbers 0614A0062 and 0614A0063.

Summary: Mr. Gibbs was charged with offences at Clarenville, Newfoundland and Labrador. He made an application to exclude evidence due to a violation of his Charter rights. The Provincial Court judge temporarily assigned to conduct proceedings at Clarenville in the absence of a sitting judge, ordered that all of the participants would attend at the court in Clarenville for the Charter application. He advised that he would conduct the hearing by video-conference in his courtroom at Grand Bank.

The judge rejected the objection of Crown and defence counsel and ultimately denied the accused’s Charter application based on testimony heard via video-conference. The Crown applied to the Supreme Court Trial Division for orders of certiorari , mandamus and prohibition . A Justice of the Supreme Court dismissed the application. The Crown appealed on the grounds that the judge erred in not finding that the procedure adopted was inconsistent with the provisions of the Criminal Code , in particular sections 650 , 714.1 or 802(1) and not adequately protective of the accused’s right to a fair trial.

Held: Appeal dismissed (Green J.A. concurring, Hoegg J.A. dissenting). Harrington J.A.: Certiorari is a remedy only available in limited circumstances when there is no right of appeal and the Provincial Court has acted outside of its jurisdiction or in a manner which constitutes a denial of natural justice. If __________________ * In accordance with R. v.

Penunsi, 2016 NLCA 50 , 1 C.A.N.L.R. 65 the style of cause has been amended to remove any reference to the Provincial Court Judge as a party. ** Green C.J.N.L. elected supernumerary status and resigned as Chief Justice on December 1, 2017. the judge has failed to comply with sections 650 or 802(1) of the Code , which codify the right to be apprised of proceedings affecting vital interests and to make full answer and defence, or has otherwise denied the accused that right to a sufficient degree, certiorari may be available.

Both the Provincial Court judge and the Supreme Court judge referenced

section 4 of the Provincial Court Act, 1991 which provides that a Provincial Court judge has the jurisdiction to preside over the court at any place in the province and reasoned that this

section confers a discretion upon the Provincial Court judge to administer justice in person or by video. Absent from the decisions of the courts below is an analysis of whether the Provincial Court judge’s discretion as to procedure is circumscribed by the Code or the principles of trial fairness.

Section 650 of the Criminal Code provides that the accused has the right to be “present in court” throughout his or her trial and may only appear by video when the restricted requirements of section 650(1.1) are met. The issue in this case is the

interpretation of that phrase and the question of whether or not an accused can be said to be “present in court” if the judge appears by video during the “trial”. In determining whether something which occurred at trial falls within the meaning of "trial" pursuant to section 650(1) , the court must ask whether what transpired involved the accused's vital interests. A voir dire on the Charter issue is part of the trial and an accused has a right to be “present in court” for it. The question is then whether or not the accused is “present in court” if the judge appears by video.

The Code does not provide an obvious answer. There are two rationales for the accused’s right to be physically present in court in

section 650 : (

i) informing the accused of proceedings which affect his or her vital interests; and (ii) giving effect to the accused’s right to make full answer and defence. The fundamental assumption made by the Code is that all the participants in a criminal trial – the parties, the witnesses, counsel, the jury and the judge – will generally be physically present in the courtroom in sight of one another. This notion of “the court” reflects the tradition of our legal system.

While a procedure whereby the judge appears by video-conferencing departs from the traditional model of face-to-face confrontation and observation and dilutes the right to make full answer and defence, it does not automatically impair that right to such an extent that the trial becomes unfair. A situation where the judge is physically present in the courtroom and the accused appears by video is not the mirror image of a situation where the accused is physically present and the judge appears by video.

Both the presence of the judge and the presence of the accused are required in order for the accused to be “present in court” pursuant to section 650(1) . However, only the video presence of the accused is further regulated by section 650(1.1), because the physical presence of the judge and judge’s ability to observe witnesses is only one part of the right to make full answer and defence that is protected by the right of the accused to be present in the courtroom. The Code does not prescribe the factors which the judge must consider before appearing by video.

The provisions for analyzing witness appearances provide helpful guidance as to the kinds of factors which may be considered. The decision to appear by video should not be made lightly and should only be made in exceptional circumstances. In the exceptional circumstances of there being a judicial vacancy in Clarenville and the long travel time between Grand Bank and Clarenville which was causing matters to be cancelled in both courts, the Supreme Court judge did not err in upholding the decision by the Provincial Court judge to conduct the voir dire hearing through his virtual presence at his courtroom.

The procedure did not render Mr. Gibbs’ Charter application hearing unfair. Green J.A.: The conclusion of Harrington J.A. is agreed with. The answer to the question “what is a court?” goes some way to answering the question at issue in this case, which is whether a judge of the Provincial Court can “appear” from a remote location in the province by videolink and conduct the trial or a part thereof in that manner. A judge of the Provincial Court of Newfoundland and Labrador derives his or her jurisdiction from the Criminal Code and the Provincial Court Act, 1991, SNL 1991, c. 15 .

The Code has no provision which expressly addresses the possibility of a remote appearance by a judge in that physical place. A Provincial Court judge has jurisdiction throughout the province and may sit and hold court in different locations that are not designated courthouses. This suggests that a court is not just a place; court functions wherever the judge is. There is no reason in principle why a judge may not hold court remotely, provided the essence of a court, the institutional adjudicative

process whereby legal rights are fairly adjudicated according to law in a manner that allows the accused to make full answer and defence on the basis of reliable and properly permitted evidence and argument in a forum (physical or virtual) that is capable of being accessed and observed and participated in by the vital participants and the public, is maintained, and that there is no relevant statutory provision that precludes this.

Section 650(1) of the Code provides that, subject to certain exceptions, an accused “shall be present in court during the whole of his or her trial.” The purpose of “presence” is to ensure that the accused has the opportunity to have first-hand knowledge of proceedings which affect his or her vital interests and to make full answer and defence.

If those purposes can be satisfied by means other than the physical presence of the judge and accused in the courtroom, if no sense of injustice could reasonably result, and if the judge can hear, manage and decide the case in a fair and effective manner, the purposes served by

section 650 will not be subverted. Subsections (1.1) and (1.2) of

section 650 address a different circumstance than the present case: they ensure that the use of electronic appearances does not frustrate or dilute the fundamental participatory objectives of a trial insofar as the accused’s right to a fair trial is concerned. Subsections (1.1) and (1.2) do not authorize the use of electronic court processes but regulate such processes to ensure that the fundamentals of a trial are not compromised.

Viewed in this way, provisions regulating the presence of the accused in relation to the trial process would not preclude the use of electronic means in conducting the trial in other circumstances (specifically, involving the presence of the judge) provided the fundamental objectives of a trial – and the right of the accused to a fair trial – are respected. Moreover, section 91(14) of the Constitution Act, 1867 accords provincial legislatures exclusive jurisdiction over the administration of justice in the Province.

Parliament has legislative jurisdiction over “procedure in criminal matters” but not the “constitution” and “organization” of courts in the province. The creation and organization of a court is therefore within the bailiwick of the provincial legislature. The fact that the Code regulates the manner in which witnesses and the accused participate in a trial with respect to the giving of evidence and the performance of other functions is a matter of criminal procedure which can be regulated by Parliament under the Code . It is not jurisdiction –conferring.

The Province has, as a matter of the constitution and organization of the courts, the power to constitute a court in a manner whereby the judge could exercise his or her jurisdiction in a place remote from other participants and at a time when he or she is not in their presence, even though all other participants are in the same place. Parliament , through the Code , could require a court which may be provincially authorized to operate virtually, in whole or in part, to function, in relation to criminal trials and related matters, in a non-virtual manner in some or all respects.

However, unlike its regulation of appearances by accused and witnesses, it has not seen fit to regulate judicial appearances directly. That means that the judge may do so provided he or she is not precluded by provincial legislation and provided other procedural requirements in the Code are complied with and the essence of a trial is maintained. This does not mean, that a judge may, at his or her whim or for his or her own personal convenience, decide to appear remotely as a matter of course.

A decision must be made judicially on a case-by-case basis on the basis of what is in the interest of the administration of justice, by considering a number of factors. The overriding criterion must always be whether, considering all the circumstances, the accused can, by virtue of the electronic technology involved, effectively participate in the trial process to protect his or her vital interests and to make full answer and defence and whether the public will still have a means of seeing and hearing what is happening in the court.

This appeal was argued on the issue of the jurisdiction of the judge to appear remotely. The fact that there were certain technological problems encountered during the process in this case does not necessarily deprive the judge of jurisdiction. It must be left for another day whether, depending on the nature of the problems and their effect on the accused’s interests or on the basis that the judge in this case exercised his discretion inappropriately, a new trial may ultimately be indicated.

Hoegg J.A. dissenting: The reasoning of Green J.A. that the province has constitutional jurisdiction over the establishment and constitution of courts in the province is agreed with. A court is a place where an adjudicative process fairly determines the legal rights of parties which in a criminal prosecution is a process that allows an accused to make full answer and defence on the basis of reliable and properly admitted evidence and argument in a forum that is capable of being accessed and observed and participated in by the vital participants and the public.

The place where the adjudicative process takes place is a court, within the meaning of

section 650 of the Criminal Code , The adjudicative forum in which the trial Judge decided Mr. Gibbs’s

section 9 Charter application did not conform to the requirements of

section 650 of the Code , which regulates the procedure and composition of a court for the purpose of the rights of an accused person facing a criminal trial. The Provincial Court of Newfoundland and Labrador is a statutory court. The jurisdiction of its judges is set out in

section 4 of the Provincial Court Act, 1991 . S ections 4(1) (

a) and (

c) clearly confine a PCJ to applying the law of the land as prescribed in the Code and interpreted in the jurisprudence. If he or she does not do so, that PCJ will be exceeding his or her jurisdiction. The PCJ in this case exceeded the jurisdiction vested in him by the Act by conducting Mr. Gibbs’ trial virtually. His decision to do so

stands in conflict with well-established Canadian law respecting matters of criminal trial process and procedure which is the domain ofthe federal government. The legal principle which is in conflict with the decision of the majority is that an accused person has the right to be present in courtduring criminal proceedings involving him or her, enshrined in

section 650 of the Code. While there are recognized exceptions to thisprinciple, none supports the proposition that an accused’s right to be present in court during the taking of evidence is fulfilled by thejudge adjudicating his or her case from a virtual location in the absence of his or her, and the Crown’s, consent. There is no Code provision that addresses the specific circumstance of a judge appearing virtually, although several provisions in theCode permit video appearances of the accused and witnesses in limited circumstances.

The point of sections 650, 650.01 and 650.02 isthat if and when an accused person is separated from the other two constituent parts of the court, certain criteria must be met. The judgeis one of the constituent parts and if an accused is physically separated from the judge, the consents of the Crown and the accused arerequired, and even when they do consent, no evidence can be taken. Moreover, when all of these criteria are met, the judge must stilldecide whether to proceed by considering all of the presenting circumstances. To say that because

section 650 does not mention thejudge appearing virtually the

section is inapplicable to this case is a narrow and artificial

interpretation of

section 650. The three constituent parts of the Court must be in the physical presence of each other during a proceeding unless the law permitsotherwise. The trial Judge exceeded his jurisdiction by not applying and following the law and the Supreme Court Judge erred inupholding his decision. The Judge’s virtual appearance was on the Judge’s own motion and for his own convenience. The records show that technicaldifficulties occurred during the hearing.

Parliament and the Supreme Court of Canada have legislated and adjudicated on the issue ofvirtual appearances in criminal proceedings and the rights of accuseds at play in such cases, and the decisions of the PCJ, the SupremeCourt Judge and the majority conflict with these authorities. The appeal should be allowed and the proceeding involving Mr. Gibbsdeclared a nullity. Appeal dismissed (Hoegg J.A. dissenting). Cases cited: Harrington J.A.: R. v. Forsythe, (SCC), [1980] 2 S.C.R. 268 Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366 R. v. Ramalheira, 2009 NLCA 4, 282 Nfld. & P.E.I.R. 29 R. v.

Meunier (1966), (QC CA), 48 C.R. 14 (Que. CA), aff’d (CSC), [1966] S.C.R. 399 R. v. Sinclair, 2013 ONCA 64, 114 O.R. (3d) 284 Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 R. v. F.E.E., 2011 ONCA 783, 108 O.R. (3d) 337 R. v. Waddell, 2008 NLPC 1707A00868 R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475 Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162 R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726 R. v. Tran, (SCC), [1994] 2 S.C.R. 951 R. v. Hertrich (1982), (ON CA), 137 D.L.R. (3d) 400 (Ont. C.A.), leave to appeal refused, [1982] 2 S.C.R. x R. v.

Barrow, (SCC), [1987] 2 S.C.R. 694 R. v. Allen, 2007 ONCJ 209 R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863

R. v. Gates, 2002 BCCA 128, 163 C.C.C. (3d) 274 leave to appeal to SCC refused, [2002] S.C.C.A. No. 200 R. v. Osmond, 86 W.C.B. (2d) 561 (N.L. Prov. Ct.) Green J.A. (concurring): R. v. Tran, (SCC), [1994] 2 S.C.R. 951 R. v. Hertrich (1982), (ON CA), 137 D.L.R. (3d) 400 (Ont. C.A.), leave to appeal to SCC refused, [1982] 2 S.C.R. x R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726 R. v. Barrow, [1987] 2 S.C.R. 69 R. v. Walker, 2010 SKCA 84, 362 Sask. R. 168 R. v. Gates, 2002 BCCA 128, leave to appeal to SCC refused, [2002] S.C.C.A. No. 200 R. v.

Levogiannis (1990), (ON CA), 1 O.R. (3d) 351 (C.A.), aff’d (SCC), [1993] 4 S.C.R. 475 Di Iorio v. Montreal Jail, (SCC), [1978] 1 S.C.R. 152 Reference re Young Offenders Act (Can.) (1988), (NB CA), 54 D.L.R. (4th) 430 (N.B.C.A.) Re County Courts of British Columbia (1892), 1892 CanLII 44 (SCC), 21 S.C.R. 446 R. v. Cook (1914), (NS SC), 19 D.L.R. 318 (N.S.C.A.) Hoegg J.A., dissenting: R. v. Hertrich (1982), (ON CA), 137 D.L.R. (3d) 400 (Ont. C.A.), leave to appeal to SCC refused, [1982] 2 S.C.R. x R. v. Barrow, (SCC), [1987] 2 S.C.R. 694 R. v. Tran, (SCC), [1994] 2 S.C.R. 951 R. v.

Walker, 2010 SKCA 84, 362 Sask R. 168 R. v. Gates, 2002 BCCA 128, leave to appeal to SCC refused, [2002] S.C.C.A. No. 200 R. v. Fecteau (1989), (ON SC), 49 C.C.C. (3d) 534 (Ont. H.C.J.) Counsel: Frances Knickle Q.C., for the appellant; Gregory French, for the first respondent; No appearance, for the second respondent; Ian F. Kelly Q.C., Amicus Curiae. This appeal was heard on May 14, 2015 before Green C.J.N.L. **, Harrington and Hoegg JJ.A.

The following judgment was delivered on May 8, 2018 by Harrington J.A., with separate concurring reasons by Green J.A. anddissenting reasons by Hoegg J.A. ______________________________________________________________ Harrington J.A.: [1] This appeal involves the issue of whether a provincial court judge and an accused are required to be physically present in thesame courtroom during the conduct of a

summary conviction criminal proceeding when witness testimony is heard. The use of video-conferencing has facilitated the administration of justice throughout Canada for many years. Provincial courts operate in various

designated areas of the province. In this proceeding, the alleged offence took place in a district where the position of provincial court judge was vacant due to a retirement. On the date when the

summary conviction proceeding was scheduled to be heard, the judge providing coverage for two courts, ordered the witnesses, the accused, and counsel to appear in Clarenville and he would hear evidence and argument by video-conference from his home courtroom at Grand Bank. BACKGROUND [ 2 ] The accused was charged with offences related to the operation of a motor vehicle while under the influence of drugs at Clarenville, Newfoundland and Labrador. He made an application to exclude evidence due to a violation of his Charter rights.

Counsel for the federal and provincial Crown and the accused requested that the Provincial Court judge temporarily assigned to conduct proceedings at Clarenville in the absence of a sitting judge, preside at trial in person. However, the judge ordered that all of the participants would attend at the court in Clarenville for the Charter application.

He advised that he would conduct the hearing by video- conference in his courtroom at Grand Bank, thereby eliminating a four-hour return drive enabling him to cover both courts effectively. [ 3 ] Crown and defence counsel objected to the process proposed for the conduct of the voir dire with respect to the admissibility of the testimony of the arresting officer. The judge rejected the objection and ultimately denied the accused’s Charter application based on the testimony of the investigating police officer heard by the judge via video-conference.

Crown counsel and defence counsel for the first respondent appealed. They submitted that the Provincial Court judge exceeded his jurisdiction when he did not attend in person at Clarenville to hear the Charter application as to whether the police officer had grounds to detain and subsequently arrest the first respondent. [ 4 ] Counsel, the accused, the arresting officer, and court clerk were present in the courtroom in Clarenville. Counsel for the accused and counsel for the Federal Crown agreed with the position taken by the provincial Crown.

The arresting officer was the sole witness who testified at the hearing. While giving his reasons for ordering the hearing by video-conference the presiding judge raised concern about the work load he had with regard to trials at two Provincial Court locations, the four-hour drive he would have to make to attend court in Clarenville, and the fact that the case involved a

summary conviction offence. The Provincial Court judge dismissed the Crown’s application and subsequently provided written reasons (see R. v. Gibbs , 2014 NLPC 0614 A0062). Relevant portions of the reasons are set out in paragraphs. 35-43 as follows: [35] We are not breaking new ground here. On the contrary, we are following the practice of the superior courts. The Supreme Court of Canada set the precedent for the appearance by counsel electronically over 20 years ago.

The Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador , rule 12.13(5), provides that “an application may be heard by video conference by a judge in another judicial centre”. [36] A recent case where videoconferencing was used by our Court of Appeal is in R. v. Hart , [2009 NLCA 10). Paragraph 6 in that decision clearly confirms that the Appellant in the matter appeared before the Court of Appeal by videoconference from the penal institution at Renous, New Brunswick, where Mr.

Hart was incarcerated. [37] The Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings , SI/2004-134, include rule 6.10 , which provides as follows: 6.10 Unless otherwise ordered, an application shall be heard and determined by a judge sitting in the court centre in which the proceeding is being or is to be held. [38] Presumably, the preface to that rule is not meant to be meaningless. Since video appearances are used in the Supreme Court of Canada and the Supreme Court of Newfoundland and Labrador, it would be passing strange indeed if it were not used in the Provincial Court.

It is in this court, after all, where all persons accused of having committed an offence must appear. And it is this court which hears and concludes the vast majority of criminal and regulatory offence matters. [39] At the risk of stating the obvious, it is clear that 1) there is a judicial vacancy in Clarenville; 2) only the Applicant can fill that vacancy; 3) nobody, not even a judge, can be in two different places at the same time; 4) the court rooms in Grand Bank and Clarenville are more than 200 km apart; 5) the Applicant has elected to proceed by

summary conviction in this matter; 6) a defendant in a

summary conviction matter is not usually required to be present in court for his trial; 7) counsel routinely appear on

summary matters, including

summary conviction trials, by video or by telephone; and 8) when Crown counsel has found it convenient, pre-trial applications made in indictable matters have also been dealt with by video appearance. [40] Now, in that context, let us consider some jurisprudence. [41] In R. v. Denham , 2010 ABPC 82 … , B.D. Rosborough Prov. Ct. J. had occasion to consider an application to have a witness appear by video. He said, (if I might be so bold as to summarize his remarks) in paragraphs 16 to 18, that there is no constitutional right in Canada of the accused to confront witnesses in person. [42] At paragraphs 34 to 36, Judge Rosborough said as follows:

34 It is helpful at the outset to comment on observations of a witness' 'demeanor' when making credibility assessments. In Turner , the court stated in that regard: "As to the assessment of credibility, sometimes members of the public, lawyers and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanor during the course of the witness testifying.

In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanor is likely to err." These comments are amply supported in our jurisprudence. See, for example, R. v. Dehaan , [2002] O.J. No. 430 (C.A.) . 35 There is some support for the proposition that video evidence actually enhances the ability of the parties to cross-examine or otherwise assess credibility.

In Heynen, for instance, the court stated (at para.325): "Witness reaction and demeanor may already be more effectively scrutinized by the use of technology than by the steely eye of a judge sitting apart and usually at an angle to a witness. Enlarging the picture, viewing the picture of the witness from different angles and replaying the picture of a witness enhance the court's ability to assess credibility and determine 'truth'. And further (at para.315): "I found no significant difficulty in evaluating testimony, but rather noted several advantages.

Camera angles and close-up views, in many respects, enhance the ability to evaluate demeanor. Although not required in this case, the opportunity for a video replay affords many advantages over audio replays." 36 I have had the benefit of both watching and participating in the use of CCTV in judicial proceedings throughout central Alberta. There have been few, if any, technical glitches.

Moreover, the opportunity to observe and listen to prisoners during the course of bail hearings, sentence hearings and other interim appearances has so closely replicated in-person appearance as to make the distinction between the two almost negligible. I share Stuart C.J.'s belief that video evidence, " ... will soon become essential to the conduct of court business." [43] The learned judge held in that case that he was satisfied that it would be appropriate in all the circumstances to permit the witness to testify by video in the virtual presence of the parties. I share his view.

It is an error of law to make decisions about credibility based on the appearance and demeanour of the witnesses. Further, in this day and age, the use of technology to bridge the geography of this great Country ought to be encouraged. REASONS OF THE SUPREME COURT JUDGE [ 5 ] As a statutory court, justification for the process followed by the presiding judge must be found in the Criminal Code and the Provincial Court Act, 1991 , SNL 1991, c. 15.

The Crown brought an application by way of certiorari, prohibition and mandamus , to the Supreme Court at Grand Bank seeking to quash the decision of the Provincial Court judge.

Justice Handrigan summarized the Crown’s position in his written reasons at paragraph 25: The Crown's position put another way: • The Provincial Court of Newfoundland and Labrador is a statutory tribunal. • It derives its authority from the Provincial Court Act, 1991 and the Criminal Code of Canada , and Rules made under both acts. • Its authority is limited to the jurisdiction that its enabling statutes confer on it and it has no inherent jurisdiction. • In particular, the Provincial Court Act, 1991 , the Criminal Code of Canada and the Rules made pursuant to either do not allow a Provincial Court judge to attend trials or application hearings by video-conferencing so he must attend personally. • The trial judge in this case exceeded his jurisdiction when he heard Mr.

Gibbs' application by video-conferencing. • Prerogative relief is available to quash the proceedings as a nullity and to order the trial judge to appear in person to hear Mr. Gibbs' application. [ 6 ] Handrigan J. dismissed the Crown’s application to quash the proceeding. He held that

section 4 of the Provincial Court Act, 1991 provided authority for conduct of the hearing remotely as follows: [29] Section 4(1) of the Provincial Court Act, 1991 says that the “…the court and every judge have jurisdiction throughout the province …”; and, for greater certainty, section 4(2) says that a “…judge may preside over the court at any place in the province for the orderly dispatch of the business of the court” (underlining mine).

It is well accepted that any judge of the Provincial Court of Newfoundland and Labrador can hear any matter that is properly before the court at any place where the court sits in the province. [ 7 ] The Supreme Court judge addressed two fundamental issues 1) the courts’ ability to proceed with a Charter hearing by video- conferencing and 2) the deficiencies alleged by counsel for the Crown and the accused. [ 8 ] He acknowledged that technical problems can arise with video-conferencing particularly when evidence is being given and received remotely.

Nevertheless the reviewing judge affirmed the decision of the Provincial Court judge to proceed. [ 9 ] Handrigan J. gave the following reasons for his decision: [31] If, as they do, Provincial Court judges have jurisdiction throughout the province and can preside over any court in the province, there is nothing inherently wrong with a judge of that court sitting in one location and "attending" proceedings in another location by video-conferencing.

The trial judge has jurisdiction in each of the locations connected by the technology and he does not exceed that jurisdiction by being simultaneously in both places through the medium of video-conferencing. [32] There is nothing in the Act or the Regulations that requires the trial judge to be physically present at either place to preside over court there. The trial judge's choice of how he or she appears is simply trial management and is well within his or her discretion to decide. That is not to say that trial judges may arbitrarily decide to appear in person or by video.

As always, a trial judge must ensure that he or she participates as fully in the proceedings as circumstances permit.

[33] But a trial judge's discretion of how to appear must not be fettered by antiquated notions that he or she must always appear in person regardless of the circumstances. As Kilpatrick, J. said in R. v. Hainnu , [2011 NUCJ 14] , when discussing the accused's right to confront his accuser in person: "This spatial relationship, the proximity of the accused to the accuser in a courtroom, was dictated by the limitations of the technology available to the courts during the early development of the right of cross-examination". [34] We are no longer limited by technology.

All court centres in this province have video-conferencing facilities, as do many other courts throughout Canada, including the Supreme Court of Canada. Many courts hear matters regularly by video-conferencing and the technology that serves those courts is easy to use, gratifyingly intuitive and facilitates sensitive and fulsome participation in the proceedings. [35] The public knows the benefits of video-conferencing well and it willingly embraces its uses.

Real-time, internet-based video platforms like Skype® and FaceTime® are notoriously ubiquitous and operate on the same principle as the video-conferencing formats we employ in our courts. Video-conferencing is neither novel nor intimidating; and it does not impede or impair the truth-seeking function of the court. [36] Trial judges must know the limitations of the technology they use and ensure that everyone involved in the process, including members of the public who are simply present to observe the proceedings, see and hear fully what happens and, if appropriate, can participate to the fullest extent. Mr.

Gibbs says that the technology interfered with his Charter hearing. He goes as far to say that the trial judge made a serious error of fact because he appeared virtually that he might not have made if he had heard his application in person. [37] Mr.

Gibbs' observations invite these comments: • Using technology effectively in court always presents trial judges with trial management issues; whether it is video-conferencing or sound recording equipment, white boards or blackboards, easels, flipcharts or overhead projectors, laser pointers or pointing sticks, and laptops or hard copy notebooks. • Judges sometimes err on the facts, whether they hear matters in person or remotely. • Court proceedings are often interrupted ex tempore, whether by equipment malfunctions, emotional outbursts, or a simple need for temporary respite. • Trial judges (and juries) often have difficulty hearing witnesses who may speak softly or are drowned out by loud ambient noises, the droning of air conditioners or other equipment and a plethora of other interferences. [38] In this case the trial judge was using voice-activated split-screen technology that defaulted to the location where microphones picked up background sounds, such as banging doors, coughing or voices.

The trial judge may have been trying to do too much at once: He attended to Mr. Miller at Her Majesty's Penitentiary in St. John's while pressing ahead with Mr. Gibbs' application. He would not have experienced any third-party interference if he had simply maintained a one-to-one connection between Grand Bank and Clarenville. [ 10 ] The Supreme Court judge concluded as follows: [42] Overall, I find that the trial judge did not exceed his jurisdiction by hearing Mr. Gibbs’ Charter application by video-conferencing from Grand Bank. At worst, he may not have managed the hearing as well as he might have.

If he erred in fact, as Mr. Gibbs’ claims, Mr. Gibbs might appeal the trial judge’s ruling and seek redress by the conventional route. [43] In the result, I dismiss the Crown’s application for prerogative relief. I go back to what McLachlin, C.J.C. said about certiorari in R. v. Russell : Certiorari permits review only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction. The trial judge did not exceed his jurisdiction by electing to hear Mr.

Gibbs’ application by video-conferencing; so I will not review his choice. [44] For greater certainty, let me answer the questions I posed at the beginning of these reasons when I stated the issues I had to consider: 1. Do Provincial Court judges have jurisdiction to hear matters remotely? Yes, they do. 2. If not, are the extraordinary remedies the Crown wants available against the trial judge in this matter? No, they are not. 3. If not, are the proceedings from July 11, 2014 a nullity and should they be quashed? No, they are not. [ 11 ] The Supreme Court judge issued the following order: [47] In the result, 1.

I dismiss the Crown’s application for prerogative relief. 2. I find that the proceedings that took place on July 11, 2014 in the Provincial Court at Clarenville when the Provincial Court judge appeared by video-conferencing are not a nullity. 3. I find that the Provincial Court judge’s virtual appearance at those proceedings was within the jurisdiction of the court. ISSUES [ 12 ] Two main issues arise in the circumstances of this appeal: (

i) was the procedure adopted by the Provincial Court judge consistent with the provisions of the Criminal Code , in particular sections 650, 714.1 or 802(1); and

(ii) was the procedure adopted by the Provincial Court judge adequately protective of the accused’s right to a fair trial. ANALYSIS Jurisdiction to Entertain the Application [13] Certiorari is a judicial remedy only available in limited circumstances when there is no right of appeal and the Provincial Courthas acted outside of its jurisdiction or in a manner which constitutes a denial of natural justice (R. v. Forsythe, (SCC),[1980] 2 S.C.R. 268, Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366).

The rules of natural justice may be violatedwhen the provincial court fails to observe a mandatory provision of the Code or when there is a “complete denial to the accused of aright to call witnesses or of a right to cross-examine prosecution witnesses” (Forsythe at 272). If the judge has failed to comply withsections 650 or 802(1) of the Code, which codify the right to be apprised of proceedings affecting vital interests and to make full answerand defence, or has otherwise denied the accused that right to a sufficient degree, certiorari may be available. [14] I am mindful of the decision of this Court in R. v.

Ramalheira, 2009 NLCA 4, 282 Nfld. & P.E.I.R. 29 (Barry J.A. dissenting),which held that whether or not a

summary conviction trial can proceed in the absence of the accused contrary to

section 650 of the Codemay sometimes be a question of law not jurisdiction and should be dealt with on appeal, not by way of an application for certiorari. Iconsider that Ramalheira is distinguishable from this case. The accused in that case sought to create an interlocutory appeal in aregulatory offence proceeding, where the matter could have been dealt with by way of appeal. This case raises a genuine question ofprocedure and jurisdiction under the Code. In this instance,

section 650 is imperative and its contravention vitiates a proceeding withoutthe need to show prejudice (R. v. Meunier (1966), (QC CA), 48 C.R. 14 (Que. CA), aff’d (CSC),[1966] S.C.R. 399). Legal Authority for the Conduct of Criminal Proceedings by Video [15] Neither the Provincial Court judge nor the Supreme Court judge cited any statutory authority which definitively permits a judgeto appear by video in a criminal proceeding while the parties are physically present in a courtroom in another location. Both referencedsection 4 of the Provincial Court Act, 1991 which states: Jurisdiction 4.

(1) The court and every judge have jurisdiction throughout the province and every judge (

a) shall exercise the powers and perform the duties conferred or imposed upon a judge under

an Act of the Legislature or theParliament of Canada; (

b) has the power and authority vested under

an Act of the Legislature in a judge, two justices of the peace sitting together or a youthcourt or judge of a youth court, subject to the Young Persons Offences Act ; (

c) may exercise the powers and perform the duties conferred or imposed upon a judge or one or more justices of the peace under anAct of the Parliament of Canada; and (

d) is, by virtue of the office, a justice of the peace.

(2) A judge may preside over the court at any place in the province for the orderly dispatch of the business of the court. [16] While this

section clarifies that a Provincial Court judge has the jurisdiction to preside over the court at any place in the province,it does not expressly authorize conducting the proceeding by video technology.

The Supreme Court judge decided that this sectionconfers a discretion upon the Provincial Court judge to administer justice in person or by video as long as it is done in a way whichpermits the judge to participate in the proceedings “as fully…as circumstances permit” (paragraph 32). [17] What is absent from the decisions of the courts below is an analysis of whether the Provincial Court judge’s discretion as toprocedure is circumscribed by the Code which also sets out procedures to follow in criminal cases and, more generally, whether a policypromoting court efficiency by participating by video “as fully as circumstances permit” is compatible with the principles of criminal lawwhich jealously protect the right of an accused to a fair trial. [18] The provincial court judge made reference to sections 800(2) and 714.1 of the Code which apply to

summary convictionproceedings. He found that there was nothing in those sections that required the judge, the accused and the witnesses to be physicallypresent in the same room and therefore those sections did not prevent the judge from appearing by video. He did not reference section650 of the Code which provides for the right of the accused to be present at a trial for an indictable offence. It also applies to

summaryconviction proceedings by virtue of

section 795 (see Ramalheira). The Supreme Court judge made passing reference to the Code but didnot discuss its procedural sections in detail. [19]

Section 650 of the Code reads: 650

(1) Subject to subsections (1.1) to (2) and

section 650.01, an accused, other than an organization, shall be present in court during thewhole of his or her trial.

(1.1) Where the court so orders, and where the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, forany part of the trial other than a

part in which the evidence of a witness is taken.

(1.2) Where the court so orders, an accused who is confined in prison may appear by closed-circuit television or any other means thatallow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a

part inwhich the evidence of a witness is taken, if the accused is given the opportunity to communicate privately with counsel, in a case inwhich the accused is represented by counsel.

(2) The court may (

a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible; (

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; or (

c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to standtrial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. [20]

Section 650 provides that the accused has the right to be “present in court” throughout the trial and may only appear by videowhen the restricted requirements of section 650(1.1) are met. Contrary to the statements of the lower courts and subject to the exceptionsin the Code, there may therefore be a legislated requirement that the judge and the parties in a criminal matter be physically present inthe same courtroom depending on whether or not an accused can be said to be “present in court” if the judge appears by video during the“trial”. Thus the issue in this case is the

interpretation of that phrase in the context of a Charter hearing in a

summary conviction trialwhere the sole Crown witness gave evidence in a courtroom remote from the court room where the trial judge, who was hearing theevidence by video-conference, was. The appellant, the Crown and the respondent accused, Mr. Gibbs, both argue that the procedureadopted by the Provincial Court judge in this case violated

section 650. The Meaning of

Section 650 [21] This appeal raises a novel issue for the Court. While the meaning of “trial” in

section 650 of the Code has been settled by caselaw, the question of whether “presence in court” requires the physical presence of the accused, the judge and the witnesses in the samecourtroom has not been directly addressed. [22] The meaning of “during the whole of his or her trial” was summarized recently in R. v. Sinclair, 2013 ONCA 64, 114 O.R. (3d)284 where Rouleau J.A. wrote at paragraph 15 for the Court: Section 650(1) of the Criminal Code provides that an accused must be "present in court during the whole of his ... trial".

In the context ofs. 650(1), "trial" carries a broad meaning, although generally the trial proper does not commence until after a plea is entered. Martin J.A.explained the broad

interpretation of "trial" for s. 650(1) purposes at para. 50 of R. v. Hertrich (1982), (ON CA), 67C.C.C. (2d) 510 (Ont.

C.A.): ..."trial" for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part ofthe normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury,the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, argumentsof counsel, addresses of counsel to the jury, the judge's charge, including requests by the jury for further instructions, the reception of theverdict and imposition of sentence if the accused is found guilty. [Emphasis added.] In determining whether something which occurred at trial falls within the meaning of "trial" pursuant to s. 650(1), the court must askwhether what transpired involved the accused's "vital interests" (Hertrich, at para. 82). [23] Since the voir dire on the Charter issue is part of the trial, an accused has a right to be “present in court” for it.

The question isthen whether or not the accused is “present in court” if the judge appears by video. In order to determine this, the Court must interpretsection 650 by following the well-established guidance of the Supreme Court of Canada quoting Driedger’s approach that “the words ofan Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, theobject of the Act, and the intention of Parliament” (Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 atpara. 26). [24] The Code does not provide an obvious answer as to whether the judge may appear by video. It does provide for circumstanceswhen the accused or a witness may do so. Section 650(1.1) stipulates that a judge may order an accused to appear by video-conferenceif the prosecution and defence agree and in circumstances when no evidence is taken from a witness. This is stated as an exception tosection 650(1) which provides that an accused must be “present”. The jurisprudence also treats section 650(1.1) as an exception tosection 650(1) (see R. v.

F.E.E., 2011 ONCA 783, 108 O.R. (3d) 337 at para. 1, note 1) and refers to video-presence of the accused as“absence” (see R. v. Waddell, 2008 NLPC 1707A00868 at para. 53). Similarly, witnesses may be permitted to appear by video inaccordance with

section 714.1. Witness video-testimony is termed “virtual presence”. [25] These sections indicate strongly that the fundamental assumption made by the Code is that all the participants in a criminal trial

– the parties, the witnesses, counsel, the jury and the judge – will generally be physically present in the courtroom in sight of oneanother.

This notion of “the court” reflects the tradition of our legal system, explained by the Supreme Court of Canada in R. v.Levogiannis, (SCC), [1993] 4 S.C.R. 475 at 491, affirming the judgment of Morden A.C.J.O of the Ontario Court ofAppeal: …it is an accepted tradition of our legal system that judge, jury, witnesses, accused and counsel are all present in sight of each other… [26] However, by permitting video appearances for the accused and witnesses in some circumstances the Code also recognizes thatcourts have evolved and technology has progressed with time and the need for physical presence in the courtroom is not as great as it wasat the time the traditions of our legal system were established (see for example Endean v.

British Columbia, 2016 SCC 42, [2016] 2S.C.R. 162).

That is, while physical presence by all trial participants in the courtroom remains the norm and a time-tested best practicefor ensuring a fair trial, as long as the purposes of section 650(1) are respected, the accused’s “presence in court” may, in exceptionalcircumstances, be secured even if there is an interference with the direct line of sight between the judge, the accused and the witnesses,for example if there is video appearance. (See also Levogiannis, which concerned the use of a screen to shield the complainant and R. v.N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, which concerned the right of a complainant to testify while wearing a niqab). [27] Because the Code sets out specific circumstances when the accused and witnesses may appear by video (which it is agreed werenot met in this case), but does not set out when a judge may do so, it is necessary to ask whether the purposes of

section 650 can ever befulfilled when a judge appears remotely and whether there is any meaningful difference between a situation where the accused appearsby video and when a judge does so, or whether, in substance, that is the same situation and therefore section 650(1.1) must be compliedwith. [28] The purposes of

section 650 were explained in R. v. Tran, (SCC), [1994] 2 S.C.R. 951, where, citing withapproval the judgment of Martin J.A. of the Ontario Court of Appeal in R. v. Hertrich (1982), (ON CA), 137 D.L.R.(3d) 400 (Ont. C.A.), leave to appeal refused, [1982] 2 S.C.R., the Supreme Court identified two rationales for the accused’s right to bephysically present in court in

section 650: (

i) informing the accused of proceedings which affect his or her vital interests; and (ii) givingeffect to the accused’s right to make full answer and defence. At pages 973-974 the Court in Tran wrote: The case of Hertrich is important because it makes it clear that an accused need not demonstrate any actual prejudice flowing from his orher exclusion from the trial -- i.e., that he or she was in fact impeded in his or her ability to make full answer and defence. Prejudice is asufficient but not a necessary condition for a violation of the right to be present under s. 650 of the Code.

For a violation of the right tobe present under s. 650 to be made out, it is enough that an accused was excluded from a part of the trial which affected his or her vitalinterests. Importantly, the two rationales provided in Hertrich for the right of an accused to be present at his or her trial -- i.e., full answerand defence, and first-hand knowledge of proceedings which affect vital interests -- need not necessarily overlap.

For instance, as wasthe case in Hertrich, there will be situations where an accused's right to full answer and defence is not prejudiced, but his or her right tofirst-hand knowledge of proceedings affecting his or her vital interests is negatively affected. (Emphasis added.) (See also R. v. Barrow, (SCC), [1987] 2 S.C.R. 694.) [29] Some of the aspects of the right to make full answer and defence which are affected by the accused’s presence in court includethe accused’s right to consult with counsel, cross-examine witnesses and have the trier-of-fact observe their demeanour in order toevaluate their credibility.

In N.S. the Supreme Court of Canada re-affirmed that face-to-face confrontation and observation remainsstrongly connected to a fair trial: [21] This much, however, can be said. The common law, supported by provisions of the Criminal Code, R.S.C. 1985, c. C-46 , andjudicial pronouncements, proceeds on the basis that the ability to see a witness’s face is an important feature of a fair trial.

While notconclusive, in the absence of negating evidence this common law assumption cannot be disregarded lightly. [22] As a general rule, witnesses in common law criminal courts are required to testify in open court, with their faces visible to counsel,the judge and the jury. Face-to-face confrontation is the norm, although not an independent constitutional right: R. v. Levogiannis(1990), (ON CA), 1 O.R. (3d) 351 (C.A.), at pp. 366-67, aff’d (SCC), [1993] 4 S.C.R. 475.

To besure, long-standing assumptions of the common law can be displaced, if shown to be erroneous or based on groundless prejudice — thusthe reforms to eliminate the many myths that once skewed the law of sexual assault.

But the record before us has not shown the long-standing assumptions of the common law regarding the importance of a witness’s facial expressions to cross-examination and credibilityassessment to be unfounded or erroneous. [23] In recent years, Parliament and this Court have confirmed the common law assumption that the accused, the judge and the juryshould be able to see the witness as she testifies.

To protect child witnesses from trauma, Parliament has passed legislation permittingchildren to testify via closed-circuit television or from behind a screen so that they cannot see the accused: Criminal Code, s. 486.2(1) . This Court has upheld these testimonial aids, relying on the fact that they do not prevent the accused from seeing the witness: R. v. J.Z.S.,2010 SCC 1, [2010] 1 S.C.R. 3, aff’g 2008 BCCA 401, 261 B.C.A.C. 52.

Before a witness is permitted to testify by audio link, theCriminal Code expressly requires that the judge consider “any potential prejudice to either of the parties caused by the fact that thewitness would not be seen by them”: ss. 714.3 (

d) and 714.4 (b). This, too, suggests that not seeing a witness’s face during testimonymay limit the fairness of a trial. . . . [25] Covering a witness’s face may also impede credibility assessment by the trier of fact, be it judge or jury. It is a settled axiom ofappellate review that deference should be shown to the trier of fact on issues of credibility because trial judges (and juries) have the“overwhelming advantage” of seeing and hearing the witness — an advantage that a written transcript cannot replicate: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 24; see also White v.

The King, (SCC), [1947] S.C.R. 268, at p.272; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at p. 131. This advantage is described as stemming from the ability to

assess the demeanour of the witness, that is, to see how the witness gives her evidence and responds to cross-examination. . . . [27] On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accuratecredibility assessment.

But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence. (Emphasis added.) [30] However, the right to have the judge observe the witness face-to-face is not unqualified. As summarized succinctly by theOntario Court of Justice in R. v. Allen, 2007 ONCJ 209 at para. 27: The main objection is that the entire truth seeking process suffers by permitting the witness to “mail it in” – to give evidence at adistance without his being brought into the presence of those he is accusing and the solemn and majestic atmosphere of the court house.

It is said there is a right to confrontation that is infringed or at least diluted by the video-link process. However such right ofconfrontation as it exists in Canada is a qualified right and can be subject to exceptions designed to achieve some valid purpose in theadministration of justice: R. v. Levogiannis (1990), (ON CA), 62 C.C.C. (3d) 59 (Ont. C.A.). …The Court inLevogiannis cited with approval the case of R v. R. (M.E.) (1989), (NS CA), 49 CCC (3d) 475 (N.S.

C.A.) where theNova Scotia Court of Appeal held that an order permitting a child’s evidence to be received by video-link did not offend the accused’sright to face his accuser. … [31] Extrapolating from N.S., while a procedure whereby the judge appears by video-conferencing departs from the traditional modelof face-to-face confrontation and observation and dilutes the right to make full answer and defence, it does not automatically impair thatright to such an extent that the trial becomes unfair. The accused’s right is to a fair trial, not a perfect one (R. v.

Find, 2001 SCC 32,[2001] 1 S.C.R. 863, at para. 28). [32] Clearly, where there are significant problems with the video-conferencing which undermine the ability of the judge to observethe witnesses and interact with the accused,

section 650 will be violated. This is illustrated, for example, by the decision in R. v. Gates,2002 BCCA 128, 163 C.C.C. (3d) 274 leave to appeal to SCC refused, [2002] S.C.C.A. No. 200. The British Columbia Court of Appealdealt with an appeal by the accused from his convictions and sentences on numerous counts of aggravated assault. Following trial, thejudge and counsel could not find dates whereby all parties could attend in person to hear the reasons for judgment and conduct asentencing hearing.

The parties agreed that the trial judge could sit in Vancouver to read the reasons for judgment and sentence theconvicted accused through video-conferencing while the accused was in a courtroom in Prince George and both defence and Crowncounsel attended a courtroom in Smithers. The video equipment did not allow for simultaneous visual and audio communication. Theevidence indicated that the judge and the accused could not see each other when they were speaking. The Court held that thecircumstances constituted a breach of

section 650 of the Code which was held to affect the fairness of the proceeding. More specifically,Ryan J.A. speaking for the Court set out certain criteria at paragraph 17 of the reasons as follows: If the accused does not appear in person but is permitted to appear by closed-circuit television or some other means, s. 650 (1.1) requiresthat “the other means” allow the court and the accused to engage in simultaneous visual and oral communication.

That provision was notcomplied with in this case. [33] The Court was of the view that in spite of this error, it should dismiss the conviction appeal pursuant to the curative provision insection 686(1)(b)(iv) of the Code. One factor noted by the Court was that the procedure followed was not imposed on an unwillingaccused. Counsel for the appellant agreed on his behalf to the delivery of reasons for judgment by telephone. The Court went on to saythat there was no suggestion that Mr.

Gates did not hear the reasons as they were read or that he did not understand that the trial judgewas addressing his culpability (at paragraph 18). [34] However, with respect to the sentencing hearing, the Court agreed with counsel that “Mr. Gates had become a by-stander whilethe court and the lawyers struggled with the logistical and technical problems this case presented” (at paragraph 23). The Courtconcluded “the problems that occurred in the sentencing proceeding were not just harmless procedural errors but error[s] that affected thefairness of the proceedings” and that Mr.

Gates, without his consent, was not fully present for his sentencing hearing (at paragraph 24). The Court allowed the sentence appeal and re-sentenced the offender. [35] Since the law does leave room for the trial judge in a criminal matter to exercise a discretion to appear by video in anexceptional case as long as the purposes of

section 650 are met, the only remaining question is what factors the judge should considerbefore exercising that discretion. Factors to Consider [36] In answering the question as to what circumstances must exist for the judge to be able to appear by video, the Court must firstdetermine whether or not section 650(1.1) of the Code applies to the situation where it is the judge and not the accused who appears byvideo, thereby covering the field and prescribing the conditions necessary for a video appearance, or whether there is a distinctionbetween the accused appearing by video and the judge doing so, such that the Section 650(1.1) does not apply. [37] Having regard to the purposes of

section 650 outlined above, I conclude that a situation where the judge is physically present inthe courtroom and the accused appears by video is not the mirror image of a situation where the accused is physically present and thejudge appears by video. To be clear, both the presence of the judge and the presence of the accused are required in order for the accusedto be “present in court” pursuant to section 650(1). However, only the video presence of the accused is further regulated by section650(1.1).

This is because the physical presence of the judge and judge’s ability to observe witnesses is only one part of the right to makefull answer and defence that is protected by the right of the accused to be present in the courtroom. Other aspects of the right to makefull answer and defence include the right to cross-examine and observe witnesses, the right to speak to counsel and to have access to thecourthouse to file documents or sort out procedural or case management issues.

[38] This conclusion is supported by the fact that the test for permitting witnesses to appear by video set out in

section 714.1 of theCode is also not the same as that for permitting or ordering the accused to do so. However, the presence of witnesses is also required forthe accused to be “present in court”. [39] Therefore, the Code does not prescribe the factors which the judge must consider before appearing by video. The provisions foranalyzing witness appearances do, nonetheless, provide some helpful guidance as to the kinds of factors which may be considered. Theprinciples which permit video-appearance by witnesses were reviewed by Gorman PCJ in R. v. Osmond, 86 W.C.B. (2d) 561 (N.L. Prov.Ct.) at paras, 18-19: [18] In R. v. Chapple [2005 BCSC 383], it was held that

section 714.1 of the Criminal Code “does not replace the established procedureof calling witnesses to the witness stand in criminal cases or of allowing the accused to face his or her accuser” and thus, “thepresumption, or starting point, must be that, unless the circumstances warrant dispensing with the usual practice, the witness should becalled to the witness stand to testify.” In R. v. R.(M.E.) (1989), (NS CA), 49 C.C.C. (3d) 475 (N.S.C.A.), however, itwas held that the “right to face one's accusers is not in this day and age to be taken in the literal sense...it is simply the right of an accusedto be present in court, to hear the case against him and to make answer and defence to it.” A

Summary of the Applicable Principles [19] Based upon the wording of

section 714.1 of the Criminal Code and the authorities referred to, I would summarize the applicableprinciples as follows: 1. the

section provides the court with the discretion to allow a witness to testify from outside the courtroom by technological means.Thus, the applicant must establish why such an order is appropriate in the specific circumstances of the case. The order is not to begranted without a proper evidentiary foundation for it having been presented; 2. the

section requires that the technology used results in the witness being in the “virtual presence” of the parties and the court. Thesection does not define what the words “virtual presence” means. I conclude that this element of the provision will be satisfied if theparties and the court are able to see; hear; and question the witness (see R. v. Morin, [2005] A.J. No. 54 (Q.B.), at footnote eight); and 3. in considering a

section 714.1 application, the court must consider all of the circumstances including (

i) the location and personalcircumstances of the witness; (ii) the costs that would be incurred if the witness had to be physically present; and (iii) the nature of thewitness’ anticipated evidence. An analysis of these circumstances requires a consideration of such factors as: i. the distance between the court house and the location of the witness, though the requirement for a witness to travel, standing alone, isnot likely to be sufficient for a

section 714.1 order to be issued (see R. v. Fleury, [2004] S.J. No. 242 (P.C.)); ii. the hardship, if any, which might be caused to the witness if he or she had to be present in person, including any potential impact onthe witness’ health (see R. v. McLean, [2002] Y.J. No. 88 (T.C.); iii. any other relevant personal circumstances of the witness, such as her or his age and employment; iv. whether the presence of the witness in the courtroom will result in an attempt to intimidate the witness (see R. v.

T.P.S., [2003] Y.J.No. 113 (S.C.). … v. the financial costs involved in having the witness personally present, particularly if those costs are to be incurred by the witness; theaccused; or by the Crown for a witness of minor importance in the case; vi. whether the witness’s evidence is significant or of a minor nature in the context of the specific case; vii. whether the presentation of the evidence in the manner allowed by

section 714.1 will negatively impact or enhance the accused’sability to make full answer or defence; and viii. the location of where the video link will be situated.

The Court must, in considering the location from which the evidence will bepresented, consider whether the witness will face the same level of solemnity offered by a courtroom and whether he or she will be asfree from outside influences while testifying as she or he would be if they were to testify in person before the trial judge. [Emphasis added.] [40] While the same factors will not be relevant in every case where the judge may be trying to decide whether to appear by video,they will provide guidance when considering whether an entire proceeding could be conducted remotely.

The judge should always bemindful that the decision to appear by video should not be made lightly and should only be made in exceptional circumstances. Whilethe focus of the application to permit a witness to testify by video is trial fairness as well as evidence of hardship to witnesses, the focusof the analysis in a case where the judge wishes to appear by video must be trial fairness and access to justice, not mere convenience.

Access to justice means not only trial efficiency and cost savings, but meaningful access to the decision-maker, court space and adequatecourt time and attention to resolve the live issues in the dispute. The judge’s physical presence also adds to the solemnity of theproceeding and is important for preserving the perception of a fair and impartial judiciary. Conclusion [41] The potential structures of particular video-teleconference arrangements for the conduct of a criminal proceedings are numerousand varied.

In the proceeding under appeal where the judge conducted a voir dire hearing while sitting at his home court room while allother participants were present in the Clarenville court room, all counsel along with the accused were present in court. In suchcircumstances, it could be said that any “right of confrontation” recognized under Canadian law was not impaired to the extent that theaccused was able to physically face the arresting officer in person. Further, the only evidence given at the hearing in Clarenville was

that of the police officer who conducted surveillance of the manner of the accused while driving his vehicle under suspicion by the officer that he was under the influence of drugs or alcohol leading to the arrest. [ 42 ] Where evidence is received at trial from a witness attending in court by way of a “virtual presence” gives rise to a debate as to whether the presiding judge can assess the witnesses’ testimony including credibility via video-conference technology.

Given the nature of the hearing in this matter and the evidence having been offered by the officer in the physical presence of the accused and counsel, it would not appear that there was any impairment of the evidence receiving process such that the judge was unable to make a full and proper evaluation of the evidence. There was also no impairment of the defence’s ability to cross-examine. [ 43 ] The judge considered a number of irrelevant factors in determining whether to appear by video.

However, in the exceptional circumstances of there being a judicial vacancy in Clarenville and the long travel time between Grand Bank and Clarenville which was causing matters to be cancelled in both courts, the Supreme Court judge did not err in upholding the decision by the Provincial Court judge to conduct the voir dire hearing through his virtual presence at his court room. The procedure did not render Mr. Gibbs’ Charter application hearing unfair. [ 44 ] Therefore, I would dismiss the appeal and deny the application for certiorari , prohibition and mandamus .

This does not take away the right of the accused to appeal the merits of the Charter application once the trial is completed. Green J.A.: [ 45 ] I agree with my colleague, Harrington J.A. that this appeal should be dismissed. I desire, however, to add some additional reasons for the conclusion that has been reached. [ 46 ] I begin by posing the question, “What is a Court?” Is it a place (a building designated as a courthouse, or any place where a judge performs judicial functions)? Or is it a person (a judge or, additionally, a conglomeration of persons including lawyers, witnesses, parties and court officials)?

Or is it, conceptually, something more abstract than that? [ 47 ] The answer to these questions goes some way to answering the question at issue in this case: can a Provincial Court judge, instead of physically appearing in a designated courthouse where a

summary conviction offence would normally be tried and where all counsel, witnesses and court officials are assembled, “appear” from a remote location in the province by videolink and conduct the trial or a part thereof (in this case a voir dire ) in that manner? [ 48 ] Of course, the issue cannot be completely resolved by theoretical reasoning alone. The Provincial Court of Newfoundland and Labrador is a statutory court. A judge derives his or her jurisdiction from the legislation conferring that jurisdiction.

In this case, the relevant statutes are the Criminal Code and the Provincial Court Act, 1991, SNL 1991, c. 15. [ 49 ] The Criminal Code has numerous provisions which purport to authorize a judge to permit various activities normally performed in a courtroom, such as a witness testifying and counsel making submissions, to be conducted by electronic aids such as videolinks.

Most of these provisions appear to proceed on the temporal assumption that a court is synonymous with a courthouse, i.e. a physical place. [ 50 ] Of interest is that there is no provision which expressly addresses the possibility of a remote appearance by a judge in that physical place. In one sense that is perfectly understandable, given the fact that the possibility of remote appearances by anybody in the court process has only been technologically possible in recent times. Previously, a court, of necessity, had to be conducted where every relevant player was assembled.

The notion of hearing relevant arguments and evidence in order to be able effectively to respond thereto or for the judge to adjudicate thereon required contemporaneous physical presence in one place.

If the judge was not there, the court could not be properly constituted; and if the accused was not there, his or her right to respond to the case against him or her would be compromised. [ 51 ] When Blackstone defined a court as “a place wherein justice is judicially administered” and observed that it had at least three constituent parts (“the actor … who complains of an injury done; the reus … who is called upon to make satisfaction for it; and the judex … which is to examine the truth…, to determine the law… and to ascertain… the remedy”) ( Commentaries on The Laws of England Book III, (Oxford: Clarendon Press, 1768), at 23 and 25) he, of necessity, had to conceive of its operating all in one place.

His description, however, is institutional rather than locational. It begs the question, whether, if technology could allow for the achievement of the fundamental objectives of the court process by other means, court nevertheless must be defined as a single location in which all participants must be present. [ 52 ] Does the fact that the Code addresses remote appearances in some cases but not others, including whether the judge can still constitute the court if not physically present, mean that the judge has no jurisdiction to conduct a trial remotely?

If the court is equivalent to a location, i.e. a purpose-built courthouse, and if one must seek authorization for use of videolinks in the Code , then perhaps the answer is yes. Expressio unius, exclusio alterius. [ 53 ] But, a Provincial Court judge has jurisdiction throughout the province and may sit and hold court in different locations that are not designated courthouses. See, Provincial Court Act, 1991 ,

section 4 . This suggests that a court is not just a place; court functions wherever the judge is. But is the presence of the judge not only a necessary but also a sufficient condition for holding court? If so, then others can appear remotely (if the judge, in the exercise of his or her discretion to control court processes, permits) without the necessity of authorizing provisions in the Code.

If on the other hand, court is not properly constituted unless others such as the accused, counsel and witnesses are also present, then remote appearances could only be permitted within the strictures set out in the Code . [ 54 ] But are we limited in our conceptions of a court to the traditional notions of physical place or person? What is the essence of a court? Is it not an institutional adjudicative process whereby legal rights are fairly adjudicated according to law in a manner that allows

the accused to make full answer and defence on the basis of reliable and properly permitted evidence and argument in a forum (physicalor virtual) that is capable of being accessed and observed and participated in by the vital participants and the public?

If that process canbe effectively conducted without all persons being present in one location, is there any reason in principle to insist that the process mustnevertheless be hidebound by outdated notions – no longer needed in light of modern technology – that everyone must be present in oneplace for the court to function validly? [55] In my respectful view, there is no reason in principle why a judge may not hold court remotely, provided the essence of a court ismaintained, and that there is no relevant statutory provision that precludes this. [56] Section 650(1) of the Code provides that, subject to certain exceptions, an accused “shall be present in court during the whole ofhis or her trial.” The purpose of “presence” is to ensure that the accused has the opportunity to have first-hand knowledge of proceedingswhich affect his or her vital interests, such as facing his or her accuser, hearing the case against him or her, consulting with counsel,cross-examining witnesses, participating in the trial through motions and objections, having proper observations made of the demeanourof witnesses and, in the words of subsection (3) of

section 650, “to make full answer and defence” after the close of the case for theprosecution. See R. v. Tran, (SCC), [1994] 2 S.C.R. 951; R. v. Hertrich (1982), (ON CA), 137 D.L.R.(3d) 400 (Ont. C.A.), leave to appeal to SCC refused, [1982] 2 S.C.R. x, and R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726.

None ofthese objectives is necessarily compromised if the judge is not present in the courtroom where everybody else is assembled, providedthe objectives can be fulfilled by other means. [57] It is idle to assert that the protection of an accused’s right to be present at his or her trial necessarily precludes virtual judicialparticipation, because the notion of “present in court” begs the question of what presence means. [58] The question for consideration is whether the phrase “present in court” in s. 650 is limited to the concept of presence in aphysical courtroom and, if so, whether the judge has to be physically present with the accused. (This case does not raise questions aboutwho, other than the judge, must also be present.) It is far better to inquire as to the purposes underlying the presence requirements andassess whether those underpinnings can still exist where there is a virtual appearance by the judge. [59] The cases cited in argument (Hertrich; Tran; R. v.

Barrow, (SCC), [1987] 2 S.C.R. 694; R. v. Walker, 2010SKCA 84, 362 Sask. R. 168 and R. v. Gates, 2002 BCCA 128 (leave to appeal to SCC refused [2002] S.C.C.A. No. 200), simplyreiterate the important purposes of presence by the accused in court. If those purposes can be satisfied by other means, if no sense ofinjustice could reasonably result, and if the judge can hear, manage and decide the case in a fair and effective manner, the purposesserved by s. 650 will not be subverted. [60] The fact that subsections (1.1) and (1.2) of

section 650 specifically address circumstances where the accused may “appear” byelectronic means may suggest that, by exclusion, no other circumstances are permitted to deviate from the traditional necessity of allactors, including the judge, being in the same location. Those subsections, however, address a different circumstance: they ensure thatthe use of electronic appearances does not frustrate or dilute the fundamental participatory objectives of a trial insofar as the accused’sright to a fair trial is concerned.

They restrict the use of electronic means to defined circumstances (in the case of subsection (1.1), wherethe accused may continue to “engage in simultaneous visual and oral communication” with the court and other than where the evidenceof a witness is taken and, additionally, in subsection (1.2), where the accused has the opportunity to communicate privately withcounsel).

Those circumstances generally relate to the interaction between the accused and complainants, witnesses, lawyers and otherofficials, but not judges. [61] It is to be noted, however, that the operation of subsections (1.1) and (1.2) is limited to circumstances where the evidence ofwitnesses is not taken. The ability to observe the demeanour of a witness while testifying appears to be regarded as important enough torestrict electronic participation by a witness to circumstances where observation of the evidence-presentation portions of the trial is notinvolved unless the accused and Crown otherwise consent.

This aspect of electronic participation is, of course, relevant to theparticipation of the judge as well, since it is he or she who may have to make findings of credibility. But, face-to-face confrontationbetween an accused and a witness is not an independent constitutional right: R. v. Levogiannis (1990), (ON CA), 1O.R. (3d) 351 (C.A.) at pp. 366-367, aff’d (SCC), [1993] 4 S.C.R. 475 and N.S. at paragraph 22. Furthermore, it isrecognized that making credibility assessments is not based solely, or even primarily, on observations of demeanour.

There are manycircumstances where, depending on the nature of the witness and the type of evidence being

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