Mode of Appearance for Ontario Court of Justice Criminal Proceedings

The following Practice Direction is issued under rules 1.4 and 5 of the Criminal Rules of the Ontario Court of Justice. It supersedes and replaces the Revised Guidelines re Mode of Appearance for Ontario Court of Justice Criminal Proceedings, which is no longer in effect.

The Court is committed to using technology to better serve court users and improve access to justice, including the use of remote attendance (i.e. virtual appearances) in appropriate cases. OCJ criminal proceedings will be heard in-person, or virtually (using remote technology), or a combination of in-person and virtually.

The Criminal Code provides that persons participating in criminal proceedings shall appear in person, subject to the Code provisions permitting the Court to allow or order a virtual appearance. This practice direction identifies the mode(s) of appearance for OCJ criminal proceedings, subject to a judicial officer directing otherwise. It also sets out how persons may request an order allowing a virtual appearance and sets out the requirements for virtual appearances.

The Court will continue to work with its justice partners to develop ways to support virtual appearances to better serve court users and improve access to justice.

A. Mode of Appearance for OCJ Criminal Proceedings

(1) Bail

The Court recognizes the potential of technology, particularly video appearances, to improve access to timely and meaningful bail outcomes, and is committed to working with its justice partners to support video bail. However, in locations where the necessary resources are not currently available, including resources in custodial institutions to accommodate meaningful video bail appearances, the Court (including the Regional Senior Judge (RSJ), Regional Senior Justice of the Peace (RSJP), or their designate) may direct that accused persons be brought in person, unless alternative arrangements for a video appearance can be made (e.g. bringing the accused to the courthouse to appear by video from a video suite within the courthouse), and subject to a judicial officer directing otherwise in a relation to a specific matter.

(a) First Appearances (following arrest)

Accused persons will appear by video unless otherwise directed by the Court.

Sureties may appear in person or by video unless otherwise directed; sureties who are unable to attend by video may attend by audio with permission from the presiding judicial officer.

(b) Bail Hearings (other than at first appearance)

Contested bail hearings: Accused persons will appear by video unless otherwise directed by the Court.

Consent releases and remands: Accused persons will appear by video unless otherwise directed by the Court.

Sureties may appear in person or by video unless otherwise directed. Sureties who are unable to attend by video may attend by audio with permission from the presiding judicial officer.

Counsel: If the accused person appears in person, counsel are expected to appear in person unless a judicial officer orders otherwise: see section B(1), Counsel Mode of Appearance when Accused is Appearing In Person.

Special bail hearings: The mode of appearance for all participants will be directed by the judicial officer presiding at the special bail hearing conference following discussion of the issue.

Special bail conferences will be conducted by video unless otherwise directed by the Court.

(2) Case Management Appearances (including JICMC and Trial Confirmation)

Case Management appearances include appearances in a Judge-led Intensive Case Management Court (JICMC), and a trial confirmation (or trial readiness) court.

Accused persons who are in custody: Case management appearances for accused persons who are in custody may be virtual or in person, as directed by a judicial officer.

Out-of-Custody accused persons and counsel may appear virtually (using Zoom) or in person for a case management court appearance, unless otherwise directed by a judicial officer.

• Accused persons who attend virtually are encouraged to appear by video wherever possible, however, accused persons who cannot appear by video may attend by audio (telephone), unless a judicial officer orders otherwise.
• Counsel who attend virtually are expected to attend by video. Counsel who cannot attend by video may attend by audio (telephone) with permission of a judicial officer.
• For clarity, a judicial officer may direct that an accused person and/or counsel attend a case management appearance in person to ensure a meaningful appearance to move their matter forward.

Specialized courts (e.g. drug treatment court): Unless otherwise directed by a judicial officer, accused persons and counsel have the option of appearing virtually (using Zoom) or in person in specialized courts. However, given the unique nature of specialized courts, including the presence of in-person services and supports, accused persons and counsel are strongly encouraged to attend in person, and may be directed by a judicial officer to attend in person.

Case management in satellite courts: Some satellite courts lack the technology to be able to accommodate virtual appearances. As a result, accused persons and counsel may be required to attend in person for certain case management appearances, including first appearances, at those court locations.

(3) Judicial pre-trials

Judicial pre-trials (JPTs) will be conducted by video, unless otherwise directed by a judicial officer. This applies to both counsel JPTs and JPTs involving unrepresented or self-represented accused persons.

Unrepresented and self-represented accused persons who lack the technology to appear by video will be accommodated with an in-person JPT.

(4) Guilty Pleas

All participants (including an accused person, counsel, and witness) must appear in person for a guilty plea (including sentencing), unless the Court allows a virtual plea.

A “virtual plea” is a plea proceeding in which a participant (including an accused person, counsel, or a witness) attends virtually.

1. Under ss. 715.234 and 715.235 of the Code, the Court may, with consent of the prosecutor and accused, allow an accused person to appear virtually for a plea or sentencing proceeding.
2. An applicant may seek an order from the Court authorizing a virtual plea: (i) from the judicial officer presiding at a prior court appearance, including a judicial pre-trial; (ii) through a written application submitted to the Court; or (iii) through an oral application made to the judge presiding in plea court prior to the commencement of the plea, as set out below.
3. Written applications may be submitted to the Court using the Virtual Plea Application (On Consent) form. To allow time for the application to be considered by the Court, it should be submitted at least three (3) business days before the proposed plea date.
4. Oral applications: Applicants are encouraged to seek judicial authorization for a virtual plea before the anticipated plea date. However, if it is not feasible for them to do so, they may make an oral application to the judge presiding in plea court allowing them to appear virtually for the plea. Counsel making an oral application must be prepared to make alternative arrangements if the application for a virtual plea is rejected by the Court (e.g. having the matter held down or adjourned to another date to allow the participant(s) to attend in person).
5. In seeking judicial authorization for a virtual plea, an applicant should be prepared to address why a virtual plea is appropriate in all the circumstances, including the factors enumerated in the applicable Criminal Code provision(s), including:
   1. the location and personal circumstances of the participant(s);

Note: if any participant (including counsel or an accused person) proposes to appear virtually from a location outside Ontario, they must advise the court.

Note: for accused persons who are in custody, this includes the availability of resources within the custodial institution to accommodate the video appearance.

As set out in section (B)(2), all counsel (Crown and defence counsel) must attend plea proceedings in person if the accused person is appearing in person, unless a judge authorizes a virtual appearance

(5) Trials and Preliminary Inquiries

All participants (accused person(s), witness(es), counsel) must appear in person for a trial or preliminary inquiry, unless a judge has ordered otherwise.

Unless otherwise directed by a judge (including JPT judge), a written application is required for an order authorizing a virtual appearance at a trial or preliminary inquiry.

An application for an order authorizing a virtual appearance at a trial or preliminary inquiry is a pre-trial application governed by the requirements of rule 2.4, unless otherwise ordered by the Court.

For clarity, a consent application for an order authorizing a virtual appearance at a trial may be submitted to the Court in writing under rule 2.7.

(6) Intake Court

The public may attend Intake Court in person or by electronic means where available at a court location and as directed by the RSJ, RSJP or presiding justice of the peace.

Peace officers, provincial offences officers, and other public authorities will use intake electronic processes (e.g. eIntake), written processes, or attend in person as directed by the RSJ, RSJP or a presiding justice of the peace.

B. Requirements for Virtual Appearances

(1) Counsel Mode of Appearance when Accused is Appearing in Person

Facilitating private consultation between participants who attend court using different modes of appearance can be extremely difficult, particularly when the accused person appears in person and counsel appears by video. For that reason, counsel – both the Crown and defence/duty counsel – are expected to attend all criminal proceedings, other than case management appearances, in person if the accused person is appearing in person, unless a judicial officer directs otherwise.

Counsel requests to appear by video will be considered on a case by case basis, in accordance with the applicable Criminal Code provision(s).

Counsel making a request to attend by video should be prepared to address the factors set out in the applicable Criminal Code provision(s) authorizing a remote appearance, as well as what arrangement is in place to facilitate private consultation between the accused person and their counsel, or between counsel, should the need arise. Counsel must also consult, in advance, with their client (where applicable) and with one another to ensure a meaningful appearance.

(2) Ontario Court of Justice Remote Appearance Code of Conduct

Any person attending a criminal proceeding virtually must comply with the Ontario Court of Justice Remote Appearance Code of Conduct. Failure to do so may, among other things, result in the presiding judicial officer ceasing the virtual appearance and taking any measure they consider appropriate in the circumstances to have the person appear at or participate in the proceedings.

Counsel are expected to review the Code of Conduct with their client and/or any witness who is expected to appear virtually, in advance of the proceeding, to ensure they understand their obligations during the virtual appearance.

(3) Operational Requirements to Ensure a Fair and Efficient Proceeding

Participants in a virtual proceeding must ensure that all logistical requirements are addressed in advance to ensure a fair and efficient proceeding, e.g.

• ensuring that the virtual participant(s) will appear from a suitable location, and will use appropriate technology;
• filing all materials electronically in advance and/or making arrangements for the electronic display of any exhibits that may be tendered during the proceeding;
• arranging for simultaneous virtual interpretation, if needed;
• making arrangements for any documents or orders associated with the proceeding (e.g. DNA orders or probation orders imposed on sentencing) to be distributed among participants, including the accused person; and
• making arrangements to facilitate private consultation between the accused person and their counsel, or between counsel, should the need arise.

(4) Discretion of the Judicial Officer Presiding over a Proceeding

A virtual appearance required or allowed under with this Practice Direction is subject to the discretion of judicial officer presiding over the virtual appearance to cease the virtual appearance and take any measure that the officer considers appropriate in the circumstances to have the person appear at or participate in the proceedings, in accordance with s. 715.222 of the Code.

Chief Justice Sharon M. Nicklas
Ontario Court of Justice