There have been conflicting decisions on this issue. The most recent decision answers yes to this question.
In R. v. Y.A., 2021 ONCJ 295, May 20, 2021, the accused was charged with the offence of sexual assault. The matter was set for preliminary inquiry. Judge Konyer noted that the Crown “brought an application for an order that PC DeBoer, the officer in charge of the investigation, be permitted to testify remotely at Y.A.’s preliminary inquiry, and an application for an order that Y.A. attend the inquiry by way of videoconference, which would allow the entire proceeding to be conducted remotely on the Zoom platform” (at paragraph 3).
The accused objected to both applications. In relation to the latter application, the accused argued that the court “does not have jurisdiction to order that he attend the preliminary inquiry remotely by way of videoconference without his consent” (at paragraph 3).
Judge Konyer concluded that the court did have jurisdiction, concluding as follows (at paragraphs 9, 11 and 19):
… s. 715.23 provides for an alternate route for attendance by videoconference at “a proceeding”, a term which includes preliminary inquiries. The section permits a court to “order” an accused to attend a proceeding by videoconference where the criteria in that section are met. There is no necessity to obtain the consent of the accused. This section is contained within Part XXII.01 of the Criminal Code, which provides for the remote attendance of various participants, including counsel, witnesses, the accused and the Judge. Section 715.23, which deals with accused persons specifically, would be meaningless if s. 537(j) were the only means by which an accused could appear by way of videoconference. This is not a result that Parliament could have intended. Parliament’s intent is clearly spelled out in s.715.22 – to permit attendance by videoconference in order to “serve the proper administration of justice”.
McKay J. reached the opposite conclusion in R. v. Jeffries, 2021 ONCJ 98 when considering whether an accused’s consent was required to order them to appear by videoconference at a trial. This conclusion was reached based on the wording of s. 650(1.1) which requires the presence of an accused person during any part of their trial where evidence is heard. McKay J. held that without the consent of the accused, the court had no jurisdiction to make an order requiring the accused to attend the trial by videoconference. Although Jeffries dealt with a trial rather than a preliminary inquiry, I agree that the wording of s. 650(1.1) and s. 537(j) are sufficiently similar that the reasoning in this case should be considered persuasive authority for the position advanced before me by Y.A…Therefore there are two different decisions of this court – Jassem and Jeffries – in which different Judges have reached different conclusions. I prefer and adopt the reasoning in Jassem for the reasons I have already given.
Applying the statutory criteria set out in sections 715.22 and 715.23 to Y.A.’s case, I find that an order permitting his preliminary inquiry to proceed remotely by way of videoconference would serve the proper administration of justice. It would allow his case to proceed in a fair and efficient manner. It would also enhance access to justice, not only for Y.A. but also for the complainant and the public, who also have an interest in seeing a timely resolution of this matter. His circumstances permit the proceedings to occur effectively by videoconference. For the reasons already given, conducting the proceedings remotely would have absolutely no impact on the fairness or the public nature of the proceedings. There is also nothing about the nature or seriousness of the allegations that would require this preliminary inquiry to be held in person rather than remotely. I therefore order that Y.A. is to attend his preliminary inquiry by way of videoconference pursuant to s. 715.23(1) of the Criminal Code.
