Ontario Criminal


Accused was “present” by virtue of designation

Appeal by Crown from decision of summary conviction appeal judge that set aside accused’s conviction for driving with blood alcohol level above legal limit. On third date scheduled for accused’s trial she did not appear because counsel did not remind her of it. Counsel contacted accused but she failed to attend because of her employment obligations. About 21 months earlier accused signed designation form. In it she designated her counsel to appear on her behalf in proceedings where her attendance was not required by law or judicial order. Trial judge was unimpressed with accused’s failure to attend and her assignment of priority to her work obligations. Judge then arraigned accused in absentia and entered not guilty plea on her behalf. Crown elected to proceed by summary conviction. Since outstanding disclosure request was not answered judge granted adjournment request by accused’s counsel and fixed new trial date for three months later. Trial proceeded as scheduled and accused was convicted. Appeal was allowed because trial judge erred in exercising his discretion to proceed in absence of accused. Conviction was quashed and new trial was ordered. Appeal allowed. Leave to appeal was granted. Merits of appeal were strong. Issues raised extended well beyond circumstances of this case. Reasons of appeal judge reflected legal error and they could not stand. Since designation was filed appearance of designated counsel was equivalent to accused being present, unless presiding judge ordered otherwise. Appeal judge erred when she concluded that physical absence of accused on date of arraignment and entry of guilty plea contravened her right to be present under s. 650(1) of Criminal Code. Accused was “present” by virtue of designation. Even if physical presence of accused was required what occurred could have been corrected by curative proviso in s. 686(1)(b)(iv) of Code. Appeal judge, however, did not consider that provision. Section 686(1)(b)(iv) applied because accused’s actual absence from arraignment was procedural irregularity. Trial judge had jurisdiction over class of offence for which accused was being charged. Accused suffered no prejudice from arraignment and entry of her plea that occurred in her absence for no evidence was adduced and matter was adjourned. Appeal judge’s order was set aside and original conviction and sentence imposed at trial was restored. R. v. Cole (May 25, 2012, Ont. C.A., Watt J.A., File No. C54302) 102 W.C.B. (2d) 534 (10 pp.).

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