OHS & Workers’ Compensation Advisor
A recent change to Ontario law expanded the ability to conduct trials and other court proceedings by electronic means including video, audio or telephone conference and other potential methods that have not yet been defined. This Advisor addresses how defendants charged with Occupational Health and Safety Act (“OHSA”) and other provincial offences, stand to be impacted by broadened provisions permitting electronic proceedings.
Ontario Provincial Offences Act (“POA”) courts, which handle prosecutions under the OHSA, Highway Traffic Act, Environmental Protection Act, municipal by-laws, and numerous other provincial statutes, closed in March 2020 due to the pandemic. Trials and other in-court proceedings were summarily adjourned and remain so. Notwithstanding that other courts began to reopen on July 6, 2020, POA courts remain, essentially, closed. Limitation periods (the time by which charges must be laid) remain suspended until September 11, 2020, and no in person court proceedings will take place before September 14. The extended closure of the court has resulted in a backlog of cases that were before the court when it closed and an anticipated flood of new cases, as prosecutions that might otherwise have started during the closure are commenced. The POA courts will have to manage this spike in workload.
In the most recent public update, the court indicated that work was being done to “determine if technology can be used to increase participants’ ability to access courthouse services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings”. The results of those efforts are now known.
Bill 197, the COVID-19 Economic Recovery Act, 2020 (the “Bill”), was hurried through the Ontario Legislature and received Royal Assent on July 21, 2020. It is an omnibus bill that amends various provincial statutes. Most notable for those charged with OHSA and other provincial offences, are amendments to the POA (which sets out the procedural rules for all prosecutions under provincial statutes). Broad changes have been made to facilitate participation by electronic methods. Although the totality of the impact of these changes is not yet known, they could profoundly impact the way proceedings before the POA court are conducted – and may do so even after the pandemic has ended.
We discuss the potential impacts on defendants below but, as a caveat, we note that the Bill refers to regulations being prepared to address some key matters that will affect how the new provisions are applied. We comment on these matters where they arise but point out, now, that the Bill provides that the electronic proceedings amendments will not apply to proceedings, steps in a proceeding, or circumstances specified in the regulations. It is not immediately clear what matters such exceptions might address but some proceedings under the POA may not be subject to the changes.
Any Person May Participate by Electronic Means at Any Stage
Amendments to the POA permit “any proceeding or any step in a proceeding” by “any person including a defendant, a prosecutor, a witness, an interpreter, a justice or a clerk of the court” to proceed electronically. This means a routine court appearance, the evidence of a witness, and an entire trial, may be conducted electronically – far more than previously possible. Prior to the Bill, a witness, defendant, prosecutor, and interpreter could participate by electronic means. While this in a relatively broad list of participants, notably absent from those permitted to participate by an electronic method was a judge or Justice of the Peace and a court clerk. This meant that, in most cases, the court could not preside electronically even if some participants would be participating through an electronic method.
Ongoing Impacts on Defendants
The amendments brought about by the Bill do not appear to be tied to the COVID-19 pandemic such that expanded electronic participation will cease to be available once the pandemic has ended. These changes are likely to remain standing provisions resulting in significant and ongoing impacts for defendants including: (i) consent for electronic proceedings or participation not being required; (ii) an easier process for “problematic” Crown witnesses; (iii) easier participation by out-of-jurisdiction witnesses; (iv) the use of out-of-jurisdiction justices; (v) jurisdictional differences between available electronic methods; (vi) potential additional costs; and (vii) implications on the right to trial within a reasonable time.
(i) No Consent Required
Under the previous provisions, a defendant could, in more serious POA cases, refuse to consent to a witness testifying through electronic means, thereby requiring the witness to attend court to be examined in person. However, the Bill contains no reference to consent to have anyone participate electronically. It also contains no provision for prior approval. Rather, it appears that the Crown or a defendant could choose to participate, or arrange for the participation of a person, through an electronic means made available by the court office without prior court approval or agreement of any other party.
That said, any such decision could be challenged because the Bill empowers the court to order a person to appear in person. In making this decision, the court is to consider any factors set out in the regulations and can only do so where it is satisfied that the interests of justice or the requirement of a fair trial require the person’s personal attendance. However, having to challenge the electronic participation of a person could result in a defendant having to reveal parts of its defence strategy in order to convince the court that the interests of justice or a fair trial require a person to attend in-person. Clearly not something in a defendant’s interest, when there is no obligation to reveal the defence until asserting it at trial.
Ultimately, having parties or other people participate through an electronic means could result in additional steps in litigation, should disagreements arise. Something that is likely to add to the costs defendants already bear in responding to OHSA and other provincial charges.
(ii) Challenging “Problematic” Crown Witnesses
The Bill makes it easier for witnesses to participate by not having to actually come to court to testify. This will likely make it easier to marshal evidence as witnesses could participate from wherever they are as long as they can access the permitted electronic method. They may be able to give evidence from home, their office or another location that is more “comfortable” than court. While witnesses may be called by both the Crown and the defence, making witness participation easier might prejudice the interests of a defendant.
In a prosecution, the Crown must prove the alleged offence beyond a reasonable doubt. It always has to present evidence which, almost invariably, means it has to call at least one witness. In the authors’ experience, when a case proceeds to trial the Crown’s evidence often includes a witness or witnesses who are not reliable (and sometimes not credible)[1] on key points necessary for the Crown to prove its case. Strategically, a defendant may not want these witnesses to testify electronically. Most witnesses do not testify regularly and giving evidence in court is frequently not something with which they are comfortable. Most are nervous. Allowing a witness whose evidence may be unreliable or not credible to testify through an electronic means may allow the witness to avoid the “weight” that comes with providing evidence in a courtroom. If that emboldens such witnesses or makes challenging their evidence even a little more difficult, a defendant’s interests are prejudiced.
(iii) Attendance of Out-of-Jurisdiction Witnesses
A witness who provided information during the pre-charge investigation may no longer be or reside in Ontario. It may be very difficult to impossible to compel a witness who is not located in Ontario to attend at a POA trial. In the authors’ experience, this is more often an issue for the Crown. In circumstances where the attendance of the witness cannot be compelled, the witness must come voluntarily. It may not be easy to secure the voluntary attendance of a witness who would have to agree to travel to the court and be examined and cross-examined. While the Crown may compensate the witness for their travel, meals and accommodations, the witness may be reluctant to attend because they may miss time from work and responsibilities at home. If the witness is key or essential for the Crown to establish its case against the defendant, making it easier for them to testify is not in the defendant’s interest – particularly if, as noted above, they may not be reliable or credible.
(iv) Use of Out-of-Jurisdiction Judges and Justices of the Peace
POA charges are required to be laid and addressed in the jurisdiction in which the alleged offence occurred. However, the Bill provides that the proper territorial jurisdiction has been exercised when a hearing is proceeding through an electronic method regardless of where the judge or Justice of the Peace is located. This does appear to provide an ability to overcome a lack of judicial resources that can and does happen in different jurisdictions from time to time. It may allow judges and Justices of the Peace from a less busy jurisdiction to preside over matters in a busier jurisdiction.
While quicker access to a judge or Justice of the Peace may, generally, be a good thing, having a local judge or Justice of the Peace preside over a POA trial, can mean an endemic understanding and appreciation of the local community: its demographics, challenges, issues, and, possibly, of the defendant, as an employer or operator within it. Depending on the circumstances, this may be seen as a good or not-so-good thing (such as where a prosecution has a high degree of local profile). As such, defendants may need to consider the circumstances and attend to them strategically should it be necessary to take steps to ensure their interests are protected.
(v) Disparity in Electronic Methods Available
Within Ontario there are significant differences between POA courthouses. Some are very new while others are dated or operate in ill-suited locations. Some are located in major cities and others in very small, remote centres. They differ in size, layout and technological capability. This is recognized by the Bill as it contemplates that not all electronic methods will be available in all courts, as the permission to use electronic methods applies only to those “made available by the court office”. While any limitation in the electronic methods available should apply equally to the Crown and defence, defendants will have to remain vigilant to ensure that any local technological incapability does not adversely affect the ability to defend the charges or effectively participate in the proceedings.
(vi) Potential For Increased Costs
Notably, the Bill indicates that regulations will be forthcoming regarding the “payment of fees for using electronic methods”. As such, their use may not be free. It should be safe to assume that the use of an electronic method by the court or Crown would not require the defendant to bear any costs. However, a defendant wishing to utilize a method of electronic proceeding, for themselves or a witness, could have to pay a fee to do so. While the Bill also contemplates that a court will have the ability to waive the fees, there is an inherent unfairness in having fees at all. The imposition of a fee requires a defendant to pay to access a means to participate in a court proceeding started by the Crown – for whom costs will not be an issue as it can satisfy them by using public funds. To the extent that the Crown has no meaningful cost pressures or considerations when accessing the electronic methods, it would be placed in a position of relative advantage.
(vii) Impact on the Right to Trial Within a Reasonable Time
Readers may be aware that defendants charged with OHSA and other provincial offences must have their trial within a reasonable time – defined to be within 18 months from the date of the charge. Providing for broader use of electronic methods of proceeding may help ensure that this right is respected. However, the law permits periods of delay to be attributed to a defendant (and not counted towards the 18 month limit) if the court and Crown were prepared to proceed but the defendant was not. Issues could arise if the Crown and court are prepared to proceed, in whole or part, through an electronic method but the defendant does not wish to do so and challenges proceeding in that way. One would expect that, if the court determines that proceeding in person is required in the interests of justice or for a fair trial, a defendant would not be responsible for the delay. Yet, in the authors’ view, the increased ability for proceeding by electronic means is likely to create issues about delay that a defendant will have to evaluate as it considers its rights and its approach to a charge.
As the regulations referred to in the Bill have not yet been published, many key aspects of electronic proceedings remain unclear. What is clear is that the amendments brought about by the Bill are likely to affect POA proceedings in potentially significant ways for the foreseeable future. As such, those facing OHSA and other provincial charges may find themselves increasingly addressing electronic methods of participation and the issues and concerns they create.
[1] A witness who provides evidence that, in whole or part, is inaccurate is not reliable on any point that is not accurate. Credibility is the assessment of the genuineness of the witness’ evidence.
Any member of our national OHS and Workers’ Compensation practice group may be consulted on this or any other OHS matters.
