Revised Guidelines re Mode of Appearance for Ontario Court of Justice Criminal Proceedings
Last updated: June 30, 2023*
The Court is committed to using technology to better serve court users and improve access to justice, including the use of remote technology (video or telephone) in appropriate cases. OCJ criminal proceedings will be heard in-person, by remote technology (video or telephone) or a combination of in-person and remote technology.
The chart below sets out the mode of appearance that applies in OCJ criminal proceedings. The mode of appearance identified below is always subject to a judicial officer directing otherwise. This will allow RSJs and RSJPs or their designate(s), to account for local circumstances. It will also allow the judicial officer presiding over a particular proceeding to address circumstances specific to that proceeding.
All participants and observers appearing by remote technology are expected to comply with the Ontario Court of Justice Remote Appearance Code of Conduct.
The Court will continue to consult with its justice partners to determine how best to implement its vision of using technology to better serve court users and improve access to justice.
Mode of Appearances in OCJ Criminal Proceedings
**Note: The mode of appearance is subject to direction by the presiding judicial officer and/or RSJ or RSJP or designate.
Before scheduling a matter to proceed by video, participants should confirm that the technology is available to accommodate the video appearance.
| Proceeding | Mode of Appearance |
|---|---|
| Bail | |
| First appearances (from station; also WASH court) | Accused will appear by video or audio unless otherwise directed.
Sureties may attend 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 |
| Bail hearings | For contested bail hearings: Accused will appear by video unless otherwise directed.
Note: If resources are not available in the institution to accommodate a meaningful hearing, the accused must 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. For consent releases and remands: Accused may attend by video or audio unless otherwise directed Sureties may 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 appears in person, counsel are expected to appear in person unless a judicial officer orders otherwise; counsel requests to appear by video will be considered on a case by case basis in accordance with the applicable Criminal Code provisions. See 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 conference | Conducted by video unless otherwise directed.
Note: RSJ, RSJP or designate can authorize audio or in-person conferences as can the presiding judicial officer |
| Judicial pre-trials (JPTs) | Conducted by video, unless otherwise directed (for both counsel JPTs and JPTs involving self-represented accused).
Self-represented accused persons who lack the technology to appear by video will be accommodated with an in-person JPT. Note: RSJ or designate can authorize audio or in-person JPTs, as can the presiding judge. |
| Plea Court | Subject to the exceptions listed below, Accused will attend in person unless judge orders otherwise.
Exceptions for videos pleas on consent: subject to a judge ordering otherwise, video pleas do not require prior approval of a judge in the following circumstances: In-custody accused – if both the Crown and accused consent to the accused attending by video. Out of custody accused – if (i) both the Crown and accused consent to the accused attending by video and (ii) neither party is seeking a custodial sentence. Counsel: If the accused person is appearing in person for a plea, counsel are expected to appear in person unless a judge orders otherwise; counsel requests to appear by video will be considered on a case by case basis in accordance with the applicable Criminal Code provisions. See Counsel Mode of Appearance when Accused is Appearing In Person. |
| Trials / Prelims | In person for all participants (witness, counsel, accused), unless a judge has ordered otherwise.
Note: Matters that pre-tried and scheduled before April 4, 2022 (on consent) as virtual (or hybrid) hearings will continue in the mode scheduled, unless otherwise directed. For matters scheduled after April 4, 2022, if the case has been judicially pre-tried and all parties consent and the JPT judge agrees to some or all of a hearing being conducted on video (or as a hybrid hearing), the parties may presume the matter will proceed in the agreed-upon mode, subject to the presiding judge directing otherwise. |
| Case management | |
| Set date (case mgmt.) – in custody | Accused persons who are in custody may appear by audioconference or videoconference or in person, as directed by a judicial officer.
Counsel may appear virtually (using Zoom) or in person, unless otherwise directed by a judicial officer. |
| Set date (case mgmt.) – out of custody & Judge-led Case Mgmt Courts (JICMCs) & Trial Readiness |
Accused persons and counsel may appear virtually (using Zoom) or in person, unless otherwise directed by a judicial officer.
Accused persons who attend using Zoom are encouraged to appear by videoconference wherever possible, however, they may attend by audioconference (telephone), unless a judicial officer orders otherwise. Counsel who attend using Zoom are expected to attend by videoconference. Counsel who cannot attend by videoconference may attend by audioconference (telephone) with permission of a judicial officer. For more information, see the Criminal Case Management Appearances Practice Direction. |
| 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 mgmt. 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 these court locations. |
| Intake Court | Applicants and Informants may attend in person; remote processes are available as an alternative option for consent bail variations, private prosecutions, private s. 810 applications.
For peace officers, Eprojects (i.e. eIntake, eHub, eTelewarrant and eReports to Justice) will continue where applicable. |
Note: 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 court hearings other than case management appearances in person if the accused person is appearing in person, unless a judicial officer directs otherwise.
The Court recognizes that there will be situations in which it is feasible and otherwise appropriate for counsel to attend a particular hearing by video even though the accused is attending in person. Counsel requests to appear by video will be considered on a case by case basis, in accordance with the applicable Criminal Code provisions. I have encouraged the judiciary, in considering any such requests, to be flexible and to be mindful of the circumstances of in-custody accused, particularly where requiring counsel to attend in person may result in an adjournment or delay in their proceeding. I have also asked them to be mindful of the value of consistency and certainty when considering a prior judicial order authorizing a video appearance.
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.
*Note re previous versions: These guidelines were originally issued on March 18, 2022 entitled, “Interim Guidelines re Mode of Appearance for Ontario Court of Justice Criminal Proceedings Scheduling and Conducting of Virtual Criminal Case Management Appearances”. Previous versions of the Guidelines are available on the Archives page of the Ontario Court of Justice website.