R. v. Berent, 2020 MBPC 53

CITATION: R. v. Berent, 2020 MBPC 53 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) David Mann, ) ) for the Crown - and – ) ) ) Alexander Berent, Maxim Berent, and Oxana Berent, Accuseds, ) ) ) ) Brett Gladstone, Phillip Cramer, and Michael Lazar, for the Accuseds ) ) ) Reasons for Decision ) Delivered: October 23, 2020 Anne Krahn, A.C.P.J. Introduction: [ 1 ] An emergency motion, on short notice, was brought before me seeking an order Alexander Berent, Maxim Berent and Oxana Berent (the Berents) be allowed to attend their trial remotely by video link.

The trial was set to proceed on October 13 and continue for 13 non-consecutive days, ending on December 23, 2020. The Berents are living in Los Angeles, California. The Berents assert they do not have the means to quarantine for two weeks upon their return to Manitoba, as required by public health directives due to the Covid-19 pandemic. They say to stay for a lengthy period in Manitoba would impose a great hardship on them. [ 2 ] The motion was filed on September 23, 2020 and heard on September 25, 2020.

The Court’s decision was required quickly, to allow an opportunity for the Berents to return to Manitoba and quarantine for 14 days prior to the beginning of the trial, if their motion to appear by video link was not allowed. Given the urgent nature of the matter, I provided brief oral reasons on September 25, 2020. I declined the Berents’ request to appear by video for their trial. I indicated more fulsome written reasons would follow. These are those reasons. [ 3 ] Before I deal with the motion on its merits, let me comment on the appearances before me. The motion was argued by counsel appearing in Winnipeg.

Oxana and Maxim Berent appeared by telephone. Alexander Berent did not appear in any fashion. Mr. Gladstone appeared as Alexander Berent’s counsel. I was advised that Alexander and Oxana Berent are married to each other. Maxim Berent is their son. Alexander Berent requires the services of a Russian interpreter. Mr. Gladstone had not spoken to Alexander Berent directly about his position on this motion.

But through the interpretive assistance of his wife, Oxana Berent, I was advised that Alexander Berent had the same position as Oxana and Maxim Berent and was joining this motion. [ 4 ] I have some misgivings about this manner of proceeding. In R. v. Tran, 1994 CanLII 56 (SCC) , [1994] S.C.J. No. 16, the Supreme Court outlined the quality of

interpretation that must be met in order to effectively participate in a court proceeding: “continuity, precision, impartiality, competency and contemporaneousness” (para. 68). The Supreme Court refers to

section 650 of the Code which directs that an accused be present for any part of a trial where a “vital interest” of the accused is being advanced. I also have concerns that a co-accused, albeit his wife, is carrying out the interpretive function. In Tran , in the context of interpreter assistance at trial, the Court says the interpreter must be objective and unbiased and should not be a relative or someone closely connected to the criminal proceedings.

While I recognize this motion was not the actual trial, and some interpretive assistance from a family member can be used in pre-trial communications between counsel and their client, it is treading on dangerous ground to rely only on a co-accused for instructions from your client. A designation of counsel,

section 650.01 of the Code , might have allowed Mr. Gladstone to appear on behalf of Alexander Berent, but one had not been filed. I did hear submissions from Mr. Gladstone who argued the motion’s purpose was to extend a benefit to Alexander Berent. Alexander Berent should have been present, at least on the telephone for this motion. Practically, however, it ultimately did not impact the proceedings as I would have heard the motion for Oxana and Maxim Berent, who were able to hear the proceedings on the telephone. [ 5 ] I will now address the motion on its merits. I will begin by setting out the relevant legislative provisions, attached as an

Appendix to this decision. The starting proposition for criminal trials is the accused person must be present in court during the whole of the trial, section 650(1). Section 650(1.1) allows a court, where the Crown and the accused agree, to order an appearance by counsel or a video appearance, for any part of the trial, other than a part where a witness is giving evidence. Section 650(1.2) allows for an accused who is in prison to appear by video, “other than a

part in which the evidence of a witness is taken” as long as the accused can be given an opportunity to communicate with counsel privately. Section 650(2) of the Code , with the heading “Exceptions”, provides some exceptions to these general provisions. The Berents rely on section 650(2)(

b) which allows the Court to “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”. They argue the

section is so broadly worded, in the context of the pandemic, it permits the Court to allow a trial to take place on a video conference platform such as Zoom. [ 6 ] The Berents rely on the decisions In Re: Court File No. 19/578 2020 ONSC 3870 and R. v. Singh 2020 Canlii 63732 (NL PC). In both cases, the presiding judges were satisfied the law and technology permitted the trials to take place “virtually” on video conferencing platforms. In both cases, the Court took judicial notice of the restrictions on court proceedings caused by the global Covid- 19 pandemic.

In both cases the Court concluded the necessity of the trials proceeding in the face of pandemic restrictions and the ability to do so in a way that did not compromise trial fairness allowed for the accused to appear by video conference. Both cases involved charges of sexual assault. [ 7 ] In Singh , Judge Gorman interpreted the directive in section 650(1) for a person to be “present” at their trial in the context of modern technology and in a way that would not allow the Pandemic to shut courts down. He relied on the Court of Appeal’s decision in R. v. Gibbs 2018 NLCA 26 .

In Gibbs the Court upheld a trial judge’s decision to conduct a voir dire , with the judge appearing by video conference and all of the other participants appearing in the courthouse in another community. The Court of Appeal said the purpose of

section 650 was to ensure the accused has “first-hand knowledge of the proceedings”. If that objective can be fulfilled by other means the purposes of

section 650 would not be subverted. Judge Gorman concluded the purpose of

section 650 was to ensure the accused can hear all of the evidence and fully participate in the trial. “An appearance by video conferencing is consistent with the purpose of

section 650 of the Criminal Code and in my view constitutes a modern method of being “present in court,” no different in substance from being physically present.” (para. 41) [ 8 ] I would not go as far as Judge Gorman in Singh . If Judge Gorman’s proposition is accepted in its entirety, there would be no need for the exceptions. I find the starting point in

section 650 is an accused should be personally, physically present in court. The exceptions that follow in subsections (1.1 and 1.2) qualify that general proposition to allow for video appearance when a witness is not giving evidence. A broader exception can be found in section 650(2)(b). [ 9 ] A detailed, helpful review of the cases considering section 650(2)(

b) can be found in R. v. Pazder , 2015 ABQB 493 at paragraph 248 . I adopt the Court’s conclusion: [249] As is obvious from this survey, the first fundamental principle is that Criminal Code , s. 650(2) (

b) should only be used sparingly, and with caution. An accused’s absence should only occur where there is a valid and legitimate reason that does not offend public policy, and that is beneficial to the accused without prejudicing fair trial rights of the accused and other trial participants. [250] 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 of 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. [ 10 ] The Berents’ application to participate in their trial by video conference relies only on section 650(2) (

b) of the Criminal Code . However, the two cases they rely on also refer to new amendments relating to remote appearances added to the Criminal Code in Bill C- 75, provisions which came in force on September 19, 2019, contained in

section 715.21-715.26. [ 11 ]

Section 715.21 provides “Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.”

Section 715.22 sets out the purpose of the provisions permitting participation by audio or video conference is to serve the proper administration of justice, ensure fair and efficient proceedings and to enhance access to justice.

Section 715.23 permits the Court to allow for video or audio appearance if it would be appropriate in all of the circumstances. Factors to be considered when allowing a video appearance by the accused include: (

a) the location and personal circumstances of the accused; (

b) the costs that would be incurred if the accused were to appear personally; (

c) the suitability of the location from where the accused will appear; (

d) the accused’s right to a fair and public hearing; and (

e) the nature and seriousness of the offence.

Section 715.23(3) allows for the Court to stop the use of technological means and require the accused to appear at the proceeding. [ 12 ] I conclude sections 715.21-715.23 could be relied on to allow for an accused to appear by video-conferencing at a trial. I adopt the reasoning of Justice Monahan in R. v. Daley 2020 ONCJ 201 . The Code must be read as a whole with the new amendments brought in by Bill C 75. It is my view that

section 650 goes part of the way towards introducing the use of technology and, in particular, videoconferencing, during the course of a trial including the taking of a plea.

Section 715.23 builds on the provisions of

section 650 by now allowing for audioconference as well as videoconference in a wide variety of circumstances including pleas. (at paragraph 27).

The Court in Daley analyzed section 650(2) (

b) and the new provisions in

section 715.21-715.23 to conclude a plea and sentencing could proceed by audioconference. He disagreed with his colleague, Justice Downes who had come to an opposite conclusion in R. v. Candelaria 2020 ONCJ 194 with a self-represented accused. [ 13 ] A trial by videoconference is still a rare proceeding. It requires a concrete and functional plan for how such a proceeding will be conducted to ensure trial fairness is not compromised. I was not presented with such a concrete plan.

I note in In Re: Court File No. 19/578 the Court says such a trial requires the “hard work and assistance of counsel, the parties, and the court staff to make it work. Without that the process cannot be successful.” (para. 3) The accused, in that case, had signed a “Waiver and Consent” to a virtual trial. All parties were in agreement and had signed and filed a protocol for the virtual trial procedure. (para. 7) Prior to trial, all parties including the judge had practiced together and separately to ensure the technology would allow for real time communication.

In addition to there being no concrete plan presented, there was no such waiver in the case before me, although counsel for Oxana Berent suggested I could require such a waiver as a condition of the Berents attending by videoconference. [ 14 ] In Singh , Judge Gorman refers to provincial trial decisions in Newfoundland which have used video conferencing, including for entire trials. The Court in Newfoundland seems to have more experience and perhaps more sophistication with the technology which offers some assurance of its effectiveness. The Provincial Court of Manitoba is not in the same position at this time.

We are certainly adept and familiar with video appearances for bail hearings and sentencings, and the occasional witness, usually an expert witness, appearing by video link. However, the added complexity required for virtual trials is one which requires a great deal of attention to the details of how the trial evidence will be presented from start to finish, including how the evidence will be viewed by all.

Counsel have not provided any of these details in the application that was made before me. [ 15 ] There is also some important contextual information which underlies my conclusions that this matter has not been properly prepared for trial. The Berents were jointly charged with public mischief in April 2019. At least four case management hearings were conducted on these charges, the last occurring on June 2, 2020. There is no mention in the case conference memorandums of the Berents’ desire for a virtual trial.

I note here the Provincial Court suspended all out of custody matters due to the Covid-19 pandemic on March 16, 2020. The notice was posted on the Court’s public website. On June 1, 2020, the Provincial Court sitting in Winnipeg re- opened to hear out of custody trials.

I take judicial notice of the requirement to quarantine if coming into Manitoba from another country, including the United States, has now been in place for months, since March 2020. [ 16 ] In submissions before me, Counsel for Oxana and Maxim Berent are said to have advised their lawyers the week before the motion was filed, they did not have the resources to self-quarantine for 14 days. This precipitated the motion. [ 17 ] The application for the Berents to appear by video conference is supported by the affidavit of a legal assistant to Mr. Lazar, counsel for Oxana Berent.

The affidavit asserts the legal assistant was present for a speaker-phone call on September 23, 2020 with Maxim Berent, Oxana Berent and their counsel. During this call Oxana and Maxim Berent said the charges against them resulted in negative publicity. The consequences of the negative publicity included financial hardship such that they lost their business and their home. They say they became ostracized by Winnipeg’s Jewish Community. The loss of support necessitated their move to the United States.

In California, they were offered community support, including food and lodging through the Chabad community in Los Angeles. The Chabad movement is described as “an Orthodox (observant) movement within Judaism, that among other things provides social support for Jewish people in need.” The Berents moved to Los Angeles in January of 2020. Other than the support they receive from the Chabad movement, they say they are unemployed and impoverished.

Oxana and Maxim Berent advised during this audio call all of the above was true of Alexander Berent as well. [ 18 ] The legal assistant’s affidavit asserts: The Los Angeles Chabad have a video system that is available for the Berents to use to attend their trial if permitted by the Court. They hope that the Court would allow them to attend by video utilizing Zoom or some similar platform. This information was supplemented by submissions before me.

Counsel frankly admitted there were a number of challenges he had not thought of such as, how would an internet connection be facilitated for multiple laptops, who would obtain and pay for the laptops on which the Zoom platform could be used. Counsel suggested possible solutions, to quote him, “on the fly” during his submissions. [ 19 ] The Crown is opposed to the application to conduct the trial by video-conference. The Crown’s opposition is based on the practical and technological barriers to proceeding with a virtual trial.

The Crown concedes that there may well be cases where a virtual trial would work but this is not one of them. The Crown takes the position it would be incumbent on counsel to come to Court with a concrete plan, and this the Berents have not done. [ 20 ] The Crown points out there is no evidence before the Court that a courtroom, capable of video link technology which would work for this trial, is available. While one courtroom has the capability to have one person appear by video, the courtroom is set up with a camera on the judge, a camera on the Crown, a camera on the defence.

There is no camera on the witness. [ 21 ] The Crown points out the case is complex. They intend to call 20 witnesses, rely on surveillance video evidence, tender still photographs, have witnesses comment on these pieces of evidence and point out things in this evidence. They intend to play 911 calls. There is no evidence before me to explain how the Berents would be able to see this evidence. Zoom video technology generally captures a headshot of the speakers. Most people now have a familiarity with Zoom technology. The more participants on the call, the smaller the image becomes of each camera shot.

While I am aware of presentation features, where the screen is filled with only the presentation by a presenter, this would not work in a criminal trial where the participants need to be visible to each other at all times. There is a real concern the Berents would not be able to effectively see and appreciate the evidence that was being led against them. [ 22 ] The Crown points out the added complexity of the need for an interpreter. He argued there is often a need for an interpreter to be present in person with the person they are interpreting for, to ensure the evidence is being communicated and understood.

In my view, this challenge could have been overcome with a functioning video link.

[ 23 ] The Crown says identification will be an issue in this case. While “in-dock” identification can be frail evidence, he points out there is added difficulty and complexity for the Crown if the Berents are appearing on video. Further the Crown intends to rely on statements made by the Berents. The voluntariness of the accuseds’ statements is at issue. It is expected the Berents will testify. This is an added complexity because the plan proposed is the Berents will sit together in the same room in the Chabad.

The Crown says there is opportunity for the appearance of mischief or mischief itself because there could be signalling or communication with each other during such testimony that would not be captured on camera. I accept this as a valid concern. While judges are instructed not to rely too heavily on demeanor evidence, I also accept that a headshot alone, particularly when an image of witness becomes smaller the more people are on the platform, could compromise trial fairness in this case. Significant communication can take place through body language.

I am not satisfied, based on a lack of evidence of a plan to address these concerns, that the proposal for a Zoom or video-conferencing platform virtual trial is appropriate. [ 24 ] The Crown points out there is not yet a precedent where an accused person appeared from another country by video for their trial. There are additional policy and resource implications from this scenario. If the three week trial proceeded, with the Berents appearing by video, and should the Court find them guilty, what assurance or confidence could a Court have that they would return to be sentenced?

I agree with the Crown this is another factor necessitating against granting this motion. [ 25 ] The Crown points out the Berents left this country, knowing they would have to come back for a lengthy trial. Covid-19 has not changed that. Covid-19 has added the requirement for a two week quarantine. It is not clear to me based on the affidavit from the legal assistant, which contains only hearsay, what the pre-Covid plan was as to where the Berents would stay. During the course of submissions, Mr.

Gladstone suggested for the Berents to quarantine for 14 days would require the friends they were staying with to quarantine for 14 days as well. It is not clear to me why a 14 day quarantine would require the home owners to also quarantine. Certainly they would be required to be physically separate in a home, with potentially separate bathroom facilities, but there is a lack of evidence to explain to me why this was not feasible. The submissions seemed to suggest, they had friends they could stay with for the length of the trial.

I do have sympathy for the Berents because of the added burdens that Covid-19 has imposed upon them in being able to return for this trial. However, that alone, cannot be the basis for embarking on a trial process where I have inadequate assurances the process can be fair. [ 26 ] I do wish to say that I do not mean for any of what I have said to be overly critical of defence counsel. All three were operating with very tight time constraints and limited opportunity to put a concrete proposal together. They brought the motion with dispatch in order to further their clients’ interests.

I agree with them that with effort and ingenuity some of the problems, particularly the technological ones, could potentially be overcome in a case. However, the complexity of both the trial itself and the time required to put in place the technology that would be required was a barrier they could not overcome in this case. [ 27 ] The Court is seeing an increasing number of situations where counsel on short notice, are requesting the Court authorize some form of a virtual trial.

These requests are coming without a full consideration of how this will be accomplished, what the technological requirements are, or how the evidence will be presented. Justice Lemon In Re: Court File No. 19/578 set out a solid starting position as to how counsel should approach these requests. Cooperation and collaboration between all of the participants will be required. There should be evidence before the Court the technological infrastructure is in place or can be put in place to support the video or audio proceeding counsel are requesting.

Each case will have to be assessed on its own facts and will require an individualized assessment of the appropriateness of video-conferencing, but in my view, at minimum the Court and trial process will have to ensure: 1.) All participants are able to see and hear each other; 2.) And require, in most cases, an informed, clear and unequivocal waiver from the accused to proceed with a video appearance for trial, see R. v.

Ali, Boparai, Khan, Malonga-Massamba 2020 BCSC 996 (Canlii) at para.18; Re: Court File No. 19/578 2020 ONSC 3870 at paragraph 7 and 21 ; 3.) The Accused is able to see and hear the evidence that is being presented at the trial; 4.) The Accused is able to communicate in private with his counsel throughout the trial; and 5.) The rights of all trial participants are respected. [ 28 ] In conclusion while I am satisfied provisions of the Criminal Code would permit the accused to appear by video for a trial in some cases, this is not such a case.

I find this trial, as set for three non-consecutive weeks, is complicated and lengthy. In addition, for all the reasons stated above regarding the technological challenges this is not a matter which can proceed by video. I am not satisfied a fair trial, for both the Berents and the public, could be held with the Berents appearing by video. I dismissed their motion. [1] “ORIGINAL SIGNED BY:” A. Krahn, A.C.J. Appendix 1

Relevant Criminal Code Provisions Accused to be present 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 the whole of his or her trial. Video links

(1.1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or videoconference, for any part of the trial other than a

part in which the evidence of a witness is taken. Video links

(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any part of the trial other than a

part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel. Exceptions

(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 stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused. To make defence

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. R.S., 1985, c. C-46, s. 650 ; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77 ; 2002, c. 13, s. 60 ; 2003, c. 21, s. 12; 2019, c. 25, s. 274 Designation of counsel of record 650.01

(1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court. Contents of designation

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel. Effect of designation

(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, (ii) a part during which jurors are being selected, and (iii) an application for a writ of habeas corpus ; (

b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and (

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. When court orders presence of accused

(4) If the court orders the accused to be present otherwise than by appearance by the designated counsel, the court may (

a) issue a summons to compel the presence of the accused and order that it be served by leaving a copy at the address contained in the designation; or (

b) issue a warrant to compel the presence of the accused. 2002, c. 13, s. 61

PART XXII.01 Remote Attendance by Certain Persons Principles Attendance 715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally. 2019, c. 25, s. 292 Provisions providing for audioconference or videoconference 715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice. 2019, c. 25, s. 292 Accused Appearance by audioconference or videoconference 715.23

(1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

a) the location and personal circumstances of the accused; (

b) the costs that would be incurred if the accused were to appear personally; (

c) the suitability of the location from where the accused will appear; (

d) the accused’s right to a fair and public hearing; and (

e) the nature and seriousness of the offence. Reasons

(2) If the court does not make an order under subsection (1) it shall include in the record a statement of the reasons for not doing so. Cessation

(3) The court may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that the court considers appropriate in the circumstances to have the accused appear at the proceeding. 2019, c. 25, s. 292