R. v. Khan, 2016 YKSC 49

SUPREME COURT OF YUKON Citation: R. v. Khan, 2016 YKSC 49 Date: 20160920 S.C. No.: 16-AP004 Registry: Whitehorse BETWEEN: HER MAJESTY THE QUEEN APPLICANT AND UMBER BASHIR KHAN RESPONDENT Before Madam Justice C.L.

Kenny Appearances: Kelly McGill Appearing on behalf of the Applicant No one Counsel for the Respondent REASONS FOR JUDGMENT [ 1 ] KENNY J. (Oral): I have had the opportunity, in advance of the application today, to read all of the material on the file: the affidavit; the outline; and the submissions, including the cases. [ 2 ] First of all, I would note that three attempts have now been made to contact Mr. Khan for today's application, without success. I am satisfied that he has had proper notice of this application today and has been served with all of the documents with respect to this application.

If he wished to file documents in response, he was required to do so by September 1, 2016. He did not do so. We had no response from him with respect to this application, although properly served with proper notice. [ 3 ] On that basis, I am prepared to proceed with the application.

[4] The application is by the Crown for a writ of certiorari, which is an application to quash the order of Judge Chisholm whichallowed Mr. Khan, a self-represented individual, to attend his trial and testify by video from British Columbia without counsel or anagent. [5] The standard of review is correctness, as this deals with a question of law. [6]

Section 7 of the Yukon

Summary Convictions Act incorporates provisions of the Criminal Code relating to

summaryconvictions and extraordinary remedies. [7] Section 650(1) of the Criminal Code requires the accused to attend the whole of his or her trial. [8] Section 650(1.1) says that the court can order that an accused attend by counsel or by visual or oral communication only whereno witness evidence is being called and only where the accused and the prosecution agree. [9] Section 650(2)(

b) does allow the court to excuse an accused during parts of the trial where the court considers it proper. [10] There are many examples in the case law of where this would be appropriate, but those situations are rare and very specific.

Anexample would be a long argument with respect to the exclusion of evidence. [11] The court cannot, however, abrogate from the mandatory language set out in s. 650(1), that is, that the accused must attend thewhole of the trial and can only be excused with counsel or visual or oral communication where there is no witness evidence and wherethere is an agreement. [12] That is not the case here. There is no provision in the Criminal Code which allows Mr. Khan to attend his trial byvideoconference, so Judge Chisholm had no jurisdiction to make the order that he did. His jurisdiction extends throughout the Yukon.

He has no jurisdiction over the accused in British Columbia. [13] In the application before Judge Chisholm, reference was made to the decision of R. v. Gibbs, (NL PC). That case is not on point with the facts of this case. In this case, Mr. Khan is not a witness unless he chooses to give evidence; he is theaccused. He is not attending videoconference within the jurisdiction of the Yukon. He wishes to attend the trial in the jurisdiction ofBritish Columbia, over which the Yukon Territorial Court has no jurisdiction. Mr. Khan does not have counsel or an agent to appear onhis behalf.

He acknowledges that he is self represented. [14] Section 800(2) and s. 650 of the Criminal Code are clear, that the accused must appear personally or by counsel or by agentwithin the jurisdiction of the court, which is the court in the Yukon; otherwise, the court loses jurisdiction. [15] This is a short trial and Mr. Khan indicates he now resides in British Columbia and wishes to attend by videoconference fromBritish Columbia. He cannot do so. Were that to be permitted, the court would lose jurisdiction.

As indicated, he must appearpersonally or by counsel or by agent. [16] The order of Judge Chisholm is therefore quashed and Mr. Khan can elect how he wishes to appear and attend for the purposesof his trial on October 4, 2016. _________________________ KENNY J.