R. v. KINNAVANTHONG, 2022 MBCA 49, MAY 19, 2022.

FACTS:  The accused was convicted of the offence of manslaughter. He was subsequently declared to be a dangerous offender.  He appealed from sentence and argued, in part, that the trial judge erred “by hearing a dangerous offender application without the accused being physically present, against the wishes of the accused”.  The hearing took place in January 2021. At the time, “the Chief Public Health Officer had moved Winnipeg to the Critical (“Red”) level in terms of COVID-19 response and the province was under severe restrictions.  All levels of court had restricted hearings and public access to the courthouse was limited” (see paragraph 26).

Section 715.23(1) of the Criminal Code states:

Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances

HELD: The appeal was dismissed.  The Manitoba Court of Appeal held that “given the history of the proceedings and the circumstances that prevailed in January 2021, the trial judge properly exercised his discretion when he ordered that the accused appear by videoconference at the sentencing hearing” (at paragraph 31).