ARTICLE ● When in-person appearances are necessary ● THE LAWYER'S DAILY Mar 30, 2021
When in-person appearances are necessary
Tuesday, March 30, 2021 @ 1:35 PM | By Nathan Baker
In these trying times of pandemic, lawyers, judges and all justice system participants should be looking to the use of alternative means to proceed. Use of video links, greater use of agreed statements of fact and resolution of issues where possible needs to be encouraged. The Ontario Court of Justice states clearly in its communication that “the Court is committed to facilitating the conduct of proceedings by remote technology (video or phone) wherever possible and urges all judicial officials, parties and counsel to use remote proceedings unless an in-person appearance is required to ensure meaningful access to justice.”
The Superior Court of Justice states: “all non-jury matters should proceed virtually unless it is absolutely necessary to hold the proceedings in-person. To the greatest extent possible, all other avenues should be explored and implemented.” Simply put, matters should not be physically before a court of first instance where other modes of procedure can accommodate the hearing.
However, both courts refer to the exceptional situation where an in-person appearance is necessary to ensure that justice is achieved. Such an issue arose in the case of Woods (Re), 2021 ONCA 190. In that case, the Ontario Review Board (ORB) proceeded with a disposition review hearing via videoconference over the respondent’s objection. Section 672.5(13) of the Criminal Code allows for a videoconference to be used “if the accused so agrees,” but in this case the accused did not.
The review board proceeded nonetheless as it felt that there were sufficient reasons requiring it to and the imposition of the emergency order justified this. The Superior Court disagreed and quashed the board’s decision. It found that interpreting s. 715.21 of the Code that requires “except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally,” requires that the person must be physically present.
The Court of Appeal upheld the finding of the Superior Court. “The statutory regime provides no authority for the Board to conduct its hearing by videoconference without the consent of the NCR accused.” The Court of Appeal went on to state that “the rights provided in the Criminal Code and the principles of natural justice must be zealously guarded in disposition hearings, even in the face of a global pandemic.”
The vast majority of cases can proceed through some use of technology to limit the number of individuals, and the number of appearances for those individuals, who need to attend in person for criminal matters. There certainly are cases that require in-person appearances, but they should be reserved for required cases. As the court stated: “I am not prepared to treat the difference between an in-person hearing and a videoconference hearing as insignificant. The court must be cautious in endorsing such a broad proposition about the rights of vulnerable people in a time of crisis.”
Parliament can amend the Code to deal with this issue should it become more widespread and certainly should, at least, consider the pros and cons of doing so. Taking into account technology that exists now that did not a decade ago and the comfort level of many people to participate via technological means, Parliament should assess the benefits of its use to the challenges which it may present.
The Code allows judges to preside remotely where certain factors support doing so. A court can order an accused to appear remotely and can allow evidence to be taken remotely. There are tests in place to allow this. The fact that something is allowed does not mean that it should be done.
There will continue to be cases where in-person hearings are necessary and better. In the midst of the ongoing pandemic, every justice system participant needs to give a hard look at whether it is necessary in the present case. If the ability to insist on in-person hearings is abused, then Parliament may look at limiting their use even further, which would be a loss for everyone. In-person proceedings should be avoided during the pandemic when possible but protected for those cases where the interests of justice require.
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