Judging screen time in N.L. court
Appeals court tackles issue of judges presiding over hearings by video conferencing
While the province’s judges haven’t attained the Star Warslike ability yet to project their consciousness into a courtroom far, far away, for a number of years now they have been able to preside over matters through video conferencing.
But how far can video conferencing be used in a case and still protect an accused’s right to a fair trial?
That issue arose in 2014 in the case of a man being tried in Clarenville provincial court on a charge of operating a motor vehicle while under the influence of drugs.
At the time, the position of provincial court judge at Clarenville was vacant and the judge at Grand Bank provincial court, Harold Porter, was covering off both jurisdictions (more than 200 kilometres apart) while a new judge was being sought for Clarenville. For many of the anticipated short appearances at the Clarenville court, Porter presided over them through video conferencing from Grand Bank rather than being on the road driving for four-hours.
In the case in question, the accused was scheduled to appear at the Clarenville court in July 2014 for a hearing on a pretrial application (voir dire) he had made under the Canadian Charter of Rights and Freedoms alleging his rights were breached by police during his arrest.
The Crown attorney, not satisfied with the matter going ahead by video conferencng, requested “the personal presence of a judge, the accused and counsel” for the hearing.
Porter refused the provincial Crown’s request to have him appear in person at Clarenville for the hearing, citing reasons such as inefficient use of time and unnecessary delays in the proceedings.
The pre-trial application hearing went ahead with Porter presiding via video conferencing, and the judge denied the man’s application.
In what might seem unusual given the fact the decision favoured the Crown’s case, the provincial Crown appealed Porter’s ruling arguing “that the provincial court judge exceeded his jurisdiction when he did not attend in person at Clarenville to hear the Charter application.”
Counsel for the accused and counsel for the federal Crown agreed with the position taken by the provincial Crown, according to court documents.
The Supreme Court of Newfoundland and Labrador heard the appeal and upheld Porter’s decision to preside over the hearing by video conferencing.
The case was then appealed to the Court of Appeal of Newfoundland and Labrador, which again upheld the previous decisions — though one justice on the three-judge panel dissented, which could open the case up to apply for leave to appeal to the Supreme Court of Canada.
The Court of Appeal decision rendered on May 8 notes that the issue was new ground for the courts.
“This appeal raises a novel issue for the court,” the decision stated. “While the meaning of ‘trial’ in section 650 of the (Criminal Code of Canada) has been settled by case law, the question of whether ‘presence in court’ requires the physical presence of the accused, the judge and the witnesses in the same courtroom has not been directly addressed.”
Justice Michael Harrington, in his reasons for judgement in the Court of Appeal decision, said factors to be considered in part were:
“In answering the question as to what circumstances must exist for the judge to be able to appear by video, the court must first determine 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 by video, thereby covering the field and prescribing the conditions necessary for a video appearance, or whether there is a distinction between the accused appearing by video and the judge doing so, such that the Section 650(1.1) does not apply.
“I conclude that 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,” he said. “To be clear, 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). This is 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.”
Harrington stated that a judge should always be mindful that the decision to appear by video should not be made lightly and should only be made in exceptional circumstances.
“While the focus of the application to permit a witness to testify by video is trial fairness as well as evidence of hardship to witnesses, the focus of the analysis in a case where the judge wishes to appear by video must be trial fairness and access to justice, not mere convenience,” he said. “Access to justice means not only trial efficiency and cost savings, but meaningful access to the decision-maker, court space and adequate court time and attention to resolve the live issues in the dispute.”
In his conclusion, Harrington wrote, that given the nature of the hearing in Clarenville 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.
“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 decision reads. “The procedure did not render (the accused’s) Charter application hearing unfair.”
Court of Appeal Justice Derek Green agreed with Harrington but attached additional reasons why the appeal should be dismissed.
Court of Appeal Justice Lois R. Hoegg had presented dissenting reasons with the decision.