R. v. Ralf, 2020 ONCJ 230 - SummaryR. v. Ralf, 2020 ONCJ 230 (CanLII)
The pandemic leads us to reconsider the way we have always done things. In this case, it is the practice of the offender signing his sentencing documents after having gone before the court. Judge Glen Donald ruled that it was not necessary to follow it.
The Court sentenced an accused after a guilty plea by way of an audioconference, following measures that many courts across the country implemented to deal with cases during the COVID-19 crisis. This remote method of proceeding was used "out of a concern for the safety of all justice system participants" [par. 3]. As such, the accused—who wasn't detained—was not present in court.
Judge Donald decided to suspend his sentence and impose a probation order on the offender. Traditionally, that probation order would have then been signed by the offender. Indeed, as he explains, "[p]rior to the pandemic and its resulting requirement of “social distancing”, having made the Order I would have moved onto the next matter on my docket without much further consideration for the fact that [the offender] would have signed a paper copy of my probation Order in the presence of court staff." [par. 7] But traditions, even in the justice system, ought not to be blindly followed as if they were somehow required for court decisions to be valid.
Considering that proximity can spread the virus [par. 5 and 8], having the offender "attend the courthouse to sign his probation order increases the risk that the virus could be transmitted, either way, between himself and the handful of police officers and court staff that he would inevitably have to come into contact with." [par. 8] As such, the Court "dispensed with the requirement that [the offender] attend the courthouse to sign his order." [par. 9]
Most importantly, it decided that such a signature was not even a requirement. Indeed, "there is nothing in the Criminal Code which requires a probation order to be signed by the person whom it governs. The probation order was valid once made." [par. 13] It is merely a "best practice", which is not necessary when the Court is satisfied that the offender understands the terms of the order [par. 17].
Instead, after the required explanations during the audioconference, Judge Donald ordered that a copy of the paperwork be sent electronically to the offender [par. 9]. This way of proceeding complied with section 732.1(5) of the Criminal Code [par. 10], which in any case wouldn't have affected the validity of the probation order given s. 732.1(6) C.C. [par. 11].
Satisfied that his sentence respected the statutory requirements, the Court turned its mind to its enforceability. Noting that "the signature on the page has always been somewhat of an illusory method of proving an accused’s awareness of the terms contained in the order" [par. 15], Judge Donald suggested that "[t]o the extent that his lack of signature could allow [the offender] to argue that he was not aware of his conditions and thus cannot be held responsible for his non-compliance", "a transcript of the proceedings offers a full answer to those concerns." [par. 13]
The signature is at best a secondary concern. As is put in the reasons, "the task of a sentencing judge is to ensure that each individual we sentence understands the restrictions of liberty, obligations and risks, penal and otherwise that we impose through the orders we make. Communication is key. While obtaining signatures may serve to confirm that we have effectively communicated the terms of our orders, the former does not guarantee the latter." [par. 16]
One of the rare good things to come out of the pandemic is how it has forced us to reflect on how we have done things in the past, and to ponder whether a different way to get there is possible, now and in the future. As here, when things can be done more efficiently, nonetheless without sacrificing the integrity of the system, changing the problematic practice is absolutely warranted.
Even without the health concerns that animated the decision in this case to dispense with the signature, we hope that it will be followed in more normal times. Offenders often have to wait long periods of times for paper copies of documents that they needlessly sign and promptly lose. Judge Donald's method seems infinitely more desirable, efficient and respectful.