This paper will seek to examine the manner in which the “virtual court” can operate in the criminal law context (when I use the words “virtual court”, I am referring to the multitude of ways that the participants in a criminal matter, including the accused, witnesses, counsel and the judge, can appear or preside in whole or part without being present in-person in a courtroom).
The virtual court can be used for every element of the criminal trial process: bail hearings, pleas, applications, trials, sentence hearings and appeals (see R. v. JDW, 2021 MBCA 49). It is not necessary for any of the participants in any of these matters to be present in-person for the process to work effectively and properly. However, does the law require in-person appearances, particularly in relation to the accused?
When the parties consent to the use of the virtual court, there is usually little difficulty. As an example, if both counsel and the accused wish to appear virtually at a sentence hearing, this should not cause any difficulty (see section 650(2) of the Criminal Code). In such a situation, the judge might also preside in the same fashion (see section 715.26 of the Criminal Code). The Criminal Code of Canada, R.S.C. 1985, contains provisions which allow for all of the parties, including the judge, to appear or preside from outside a courtroom in various situations.
Difficulties arise, however, when one of the parties objects and insists on an in-person attendance or hearing. For instance, what if the judge wants to preside virtually, but one of the parties wants the judge to preside in-person? What if the accused wants to appear in-person, but cannot do so because of financial concerns or because of pandemic restrictions? What if the accused seeks an adjournment so that he can appear in-person because he objects to a virtual appearance?
All three of these situations have occurred:
-in R. v. Patriquin, 2021 ONSC 359, the sentencing judge ruled that he could appear virtually, despite the accused’s objections;
-in R. v. Berent, 2020 MBCA 53, the trial judge rejected an application by the accused to appear virtually from their home in California, despite the expense involved and travel restrictions in place; and
-in R. v. Singh,  N.J. No. 177 (P.C.), the accused sought an adjournment of his trial. He was living in British Columbia and argued that he could not travel to Newfoundland and Labrador because of financial considerations and because of the pandemic. The accused objected to appearing virtually, arguing that he had a right to appear in-person. In dismissing the application, the trial judge concluded that “when an accused person appears by video conference, she or he is ‘present in court’” (at paragraph 46).
In R. v. Jeffries, 2021 ONCJ 98, however, it was held that a judge cannot order an accused person to appear virtually, without their consent.
What I intend to primarily concentrate on in this paper are the situations in which the consent of one of the parties to utilizing the virtual court is missing. What authority, if any, do we have to order the Crown or the accused to appear virtually? Do we always need consent? Can we issue an order for virtual appearance on our own motion?
A consideration of these questions requires an analysis of, in particular:
(1) whether a virtual appearance by the accused complies with the requirement in section 650(1) of the Criminal Code that the accused “shall” be “present in court” during her or his trial; and
(2) whether section 715.23 of the Criminal Code allows a judge to order that the accused or the Crown appear virtually when both or either objects to doing so.
I will approach this analysis by considering section 650(1), the exceptions contained within other parts of that provision, and then the effect, if any, of sections 715.21 to 715.23 of the Criminal Code on these questions.