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Criminal - Trial - Virtual. R. v. M.Z.
In R. v. M.Z. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "two counts of sexual assault, and one count of forcible confinement".
The court considers the defendant's choice between appearing virtually or in person, here in an ineffective assistance of counsel context:(3) The Choice to Appear in Person
[52] The appellant’s third complaint is that trial counsel decided, on the appellant’s behalf, that he would appear virtually.
[53] The decision to testify virtually or in person was the appellant’s to make. Section 715.21 of the Criminal Code provides that in-person is the norm for criminal proceedings except where the court approves to proceed by videoconference.
[54] Section 715.23 requires the court to consider the accused’s right to a fair and public hearing when deciding whether to allow the accused to appear by videoconference. Section 715.233 further provides that an accused must consent to appear virtually when charged with an indictable offence (and cannot do so during a jury trial when evidence is being presented to a jury).
[55] This court has held that the difference between a virtual and an in-person proceeding is not insignificant: Woods (Re), 2021 ONCA 190, 154 O.R. (3d) 481, at para. 56.
[56] The decision to appear in person or virtually is an important decision to be made in the context of criminal proceedings and counsel’s failure to permit the appellant to make the decision, or to provide competent advice on the matter, can therefore raise questions of trial fairness: Fiorilli, at para. 56; Trought, at para. 50.
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[66] While trial counsel may have acted in what he believed to be the appellant’s best interest, the appellant had a right to make an informed choice about whether to appear at trial in person.
[67] I am therefore convinced that the appellant has satisfied the factual component of his allegations. He has demonstrated that he was not given the choice to testify in person, or at the very least, was not advised of the advantages and disadvantages of testifying over Zoom, such that a meaningful choice could be made.
[68] I am also persuaded that the appellant has established the performance component of his allegations. Given the circumstances which include the serious jeopardy facing the appellant, trial counsel’s conduct was deficient and could not have been the result of reasonable professional judgment.
[69] With respect to the prejudice component, the appellant’s virtual attendance was particularly problematic as the complainant and the Crown attended in person. The appellant’s evidence that he would have appeared in person if properly advised is sufficient to establish subjective prejudice beyond the simple loss of choice, amounting to trial unfairness: White, at para. 7.
[70] For these reasons, I conclude that the appellant was denied the right to make an informed choice and fundamental decision about the conduct of his defence which undermined trial fairness.
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