I am sitting in a courtroom at the Old City Hall courthouse in Toronto watching a trial for someone we’ll call Jim.
I don’t know Jim. There’s a high probability he was homeless because it’s provincial offences court, which covers “public nuisance” charges under the Provincial Offences Act, such as panhandling, but the consequences are real: they can include jail time.
However, Jim, the accused, is not present and has no idea the trial is taking place.
There is no defence counsel. The prosecutor calls witnesses to provide evidence. The statements they provide are unquestioned as there is no one to conduct cross-examinations.
There are no defence witnesses called. The prosecutor makes closing submissions but there is no one to make closing submissions on Jim’s behalf. If Jim is found guilty, the prosecutor will make sentencing submissions. There is no one in the courtroom to shed light on Jim’s background, the circumstances surrounding the commission of the alleged offence or any mitigating factors. And if this a second offence, Jim could be sentenced to jail.
This is what a trial in absentia — without the accused being present — looks like.
The right to be present at one’s trial and to conduct a defence is enshrined in international law. Surprisingly, these procedural protections do not exist in Ontario for accused persons charged with provincial offences even when there is a possibility of incarceration.
The Provincial Offences Act permits these types of trials to occur under certain circumstances. If you find this shocking, you are not alone. This could happen to any of us. Yet there is one segment of our society who are disproportionately impacted by these proceedings. In Toronto alone, hundreds of homeless accused have been tried and convicted of provincial offences without having ever stepped foot in a courtroom.
We don’t have statistics on how often trials in absentia happen in Ontario — though such stats would be useful for everyone. However, I have seen them occur in provincial offence courts with surprising frequency.
As a staff lawyer with Legal Aid Ontario I facilitate a project at the Old City Hall courthouse that provides legal representation to homeless accused who have been summoned to Provincial Offences court and are facing “nuisance charges.” Our project has intervened on trials being conducted without the accused present at least 150 times over the past two years, and that’s in just one courthouse.
My clients live with mental health disabilities and are struggling to survive. More than 20 per cent self-identify as Indigenous. In the face of the current housing crisis, many cannot find a bed in a shelter. They are charged for sleeping on the street or for asking for help from a passerby.
For every homeless accused I represent, there are a many others who are tried and convicted in absentia. The stakes for accused people who are being charged with provincial offences can include imprisonment, exorbitant fines or probation.
Shockingly, on second conviction a defendant charged with panhandling under the Safe Streets Act can face up to six months in jail. Burdened with unpaid fines, totalling tens and hundreds of thousands of dollars, my clients will find it difficult, if not impossible, to obtain a drivers’ license, employment, credit or a criminal record suspension in the future.
In the wake of the city’s budget talks and in the face of an ongoing housing crisis, we might question why we invest limited resources into policing, prosecuting and punishing people living in extreme poverty rather than allocating resources to lift them out.
We also might question what we lose as a democratic society that claims to uphold the rule of law when hundreds of homeless accused are tried and convicted in their absence.
As for Jim, if he’s sentenced with incarceration, the next time he interacts with the police he will be possibly picked up and then sent directly to jail to serve his sentence. No bail. No trial.
Amy Slotek
Toronto Star - Opinion
Mar 26, 2018