A judge in Greater Sudbury has made a ruling on a thorny legal question that has cost the court system valuable time: what to do if a suspect refuses to attend court.
Justice Graham Jenner of the Ontario Court of Justice released his decision April 7, even though the suspect who was refusing to attend had, by then, agreed to show up.
The suspect, Pierre Gauthier, was facing criminal charges as well as an allegation that he had breached a conditional sentence order.
After he failed to appear for a hearing Nov. 20, 2024, he was arrested and appeared in bail court Dec. 13.
“Since that appearance, Mr. Gauthier has refused to be brought to court on Dec. 16, 17, 18, 19, and 23, 2024, and Jan. 22, 2025,” Jenner said in his decision.
“The Crown applied for an order pursuant to (section) 527 of the Criminal Code to have Mr. Gauthier brought to court, specifically requiring the superintendent of the Sudbury Jail to deliver him to the Greater Sudbury Police Services for that purpose.”
Because Gauthier was refusing to attend, the Crown sought a provision in the order “authorizing the use of reasonable force to compel Mr. Gauthier’s attendance,” the decision said.
“Such orders have been colloquially referred to as ‘extraction orders.’”
Jenner dealt with a similar case in Sudbury when a suspect in custody refused to leave his jail cell, despite a Section 527 order requiring him to attend.
“In that case, I received evidence from a staff sergeant at the Sudbury Jail that the jail’s practice is to ask a prisoner twice if they are willing to attend court,” the judge said.
“If they refuse twice, the prisoner is not forced to attend. The evidence established that, absent a specific clause authorizing the use of force, the jail staff will not use physical means to remove a prisoner from their cell to attend court.”
The case had Charter of Rights implications, Jenner wrote, in terms of the “security of the person interests of the accused and other prisoners in similar circumstances. They also implicated the duties of correctional services.”
Jenner appointed an ‘amicus’ – an impartial legal observer – to provide legal opinions and invited the superintendent of the jail to take part.
In that case, however, the suspect agreed to attend court after the amicus was appointed, “rendering the legal issues moot.”
“That said, when the identical issue arose with Mr. Gauthier, I made a new amicus appointment and renewed my invitation for the superintendent to participate,” Jenner wrote.
Still heard arguments
A hearing was to be held April 4, but on that day, Gauthier agreed to attend court and received an additional week in jail.
Jenner still heard arguments on the matter from the Crown, Gauthier’s lawyer, the amicus and the Ministry of the Solicitor General.
On the issue of whether the issue was again “moot,” after Gauthier decided to attend court, the judge ruled that since significant court resources had been invested in the hearing, and since it was a recurring issue, he would still hear the arguments.
“Both the Crown and amicus stated that prisoner attendance is a particular local concern,” Jenner wrote.
“If the court does not address the question until a prisoner refuses for a sufficiently lengthy period, various stakeholders will be left without clarity and guidance. Other proceedings may be derailed and delayed. There is a cost in the continued uncertainty of the law which ought to be avoided.”
In his decision, Jenner ruled that section 527 orders jail staff to deliver prisoners to court and authorizes them to use reasonable force to do so, as governed by the Criminal Code of Canada.
“The criminal justice system cannot be held hostage by a necessary participant who, despite being detained, refuses to attend.”
— Justice Graham Jenner of the Ontario Court of Justice
“Prisoners are not chattel,” he wrote in his ruling.
“But they are persons whose liberty is restricted by operation of law. They are detained, typically by virtue of a warrant of committal when sentenced, or where judicial interim release has not been granted, by a warrant of remand.”
Prisoners are not “invited” to attend court, they are brought to court and are required to attend. The law requires jail staff to deliver them to police so they can attend court.
“The criminal justice system cannot be held hostage by a necessary participant who, despite being detained, refuses to attend,” Jenner wrote.
“The mischief to the proper functioning of our legal system is not limited to serial non-attendances. A single non-attendance can impact other justice system participants and precipitate harmful delays.”
Tanya Walker, managing partner at Walker Law, said the judge in this case ruled that, as long as the force is reasonable, an accused person can be forced into the courtroom.
One of the major reasons mentioned in the ruling is the amount of court time wasted by people in custody repeatedly refusing to attend hearings.
Could cause more delays
But Walker said that forcing a prisoner to attend could be a source in itself of delays and cost more court resources.
“Correction officers may be assaulted when they compel one to attend court, which may cause more cases in the system, which is already overwhelmed with work,” she said.
Conversely, corrections officers could be accused of assault when they are in the process of forcibly removing someone from a jail cell to attend court.
Walker said she was surprised that alternatives to force weren’t considered, such as using technology.
“I was thinking when I read this, if an accused refuses -- or somebody who’s imprisoned -- refuses to attend court, why not bring a camera and a TV to their cell, turn it on and see if they’ll participate,” she said.
“Then you don’t need anyone to really touch anyone or to force anyone. And you can see whether or not this person will participate.”
Read the full decision here.
