R v Theodore, 2020 SKCA 107

Court of Appeal for Saskatchewan Citation: R v Theodore , 2020 SKCA 107 Date: 2020-09-02 Docket: CACR3084 Between: Daniel Theodore Appellant And Her Majesty the Queen Respondent Docket: CACR3086 Between: Andrew Michael Roy Bellegarde Appellant And Her Majesty the Queen Respondent Docket: CACR3089 Between: Bronson Chad Gordon Appellant And Her Majesty the Queen Respondent Before: Leurer, Tholl and Kalmakoff JJ.A.

Disposition: Adjournment request denied Written reasons by: The Court Counsel: Christopher Murphy for Daniel Theodore Brian Pfefferle for Andrew Michael Roy Bellegarde Christopher Funt for Bronson Chad Gordon W. Dean Sinclair, Q.C., for Her Majesty the Queen The Court [ 1 ] Daniel Theodore, Andrew Bellegarde and Bronson Gordon were convicted, following a trial, of first-degree murder. They have all appealed their convictions. The appeals are scheduled to be heard on September 14 and 15, 2020.

In light of health concerns arising from the COVID-19 pandemic, this Court has, since March of this year, been hearing appeals by way of videoconferencing. Mr. Theodore has requested an adjournment of the appeal hearing to a date in the future when the current COVID-19 concerns have abated so that he can attend the hearing in person. [ 2 ] The Crown and Mr. Gordon are content to have the hearing proceed by way of videoconference on the dates presently scheduled. In fact, Mr. Gordon has stated that, because of the health concerns presented by COVID-19, he would prefer to attend the hearing remotely. While Mr.

Bellegarde has indicated that he would prefer to attend the appeal hearing in person, he has not joined in Mr. Theodore’s request for an adjournment. [ 3 ] Section 688(1) of the Criminal Code confers upon an appellant who is in custody an entitlement to be present at the hearing of an appeal, subject to certain exceptions set out in subsection (2). None of the exceptions in s. 688(2) apply in the present case. [ 4 ] However, the personal attendance of an appellant is not an absolute right. Section 688(2.1)(

b) provides that where an appellant is entitled to be present at an appeal, the court may order that “instead of the appellant personally appearing ... if the appellant has access to legal advice, they appear by means of closed-circuit television or videoconference”. [ 5 ] Having considered Mr. Theodore’s request and the written submissions of the parties, we are of the view that the request for an adjournment should be denied. The videoconferencing platform this Court has been using to hear appeals works very effectively.

It permits the Court and all parties to engage in simultaneous visual and oral communication. Furthermore, given that two days have been set for the hearing of these appeals, we observe that the proceedings can unfold at a pace that will permit breaks at regular intervals to allow for consultations, as necessary, between the appellants and their counsel, and among counsel.

With that in mind, and considering the nature and availability of the videoconferencing platform in place, we are of the view that hearing the appeals by video will not impact the ability of counsel to advance the appeals of the appellants or impede the ability of the appellants to communicate with their counsel, or the ability of counsel to communicate with one another at appropriate points during the hearing.

We are satisfied that the fairness of the process will not be compromised by hearing the appeals in this fashion and that, given the health and safety risks of the COVID-19 pandemic, it is appropriate to proceed in this way. [ 6 ] Accordingly, the request for an adjournment is denied. Pursuant to s. 688(2.1)(b), we order that the appellants appear by means of videoconference. “Leurer J.A.” Leurer J.A.

“Tholl J.A.” Tholl J.A. “Kalmakoff J.A.” Kalmakoff J.A.