R. v. S.M., 2022 ONCA 765

WHAT YOU NEED TO KNOW

 - Section 650 of the Code entitles an accused to be present during the entirety of their trial

- While not all in-chamber discussions will violate s. 650, the default position in criminal trials is that any conversation involving trial counsel ought to take place in the appellant’s presence, in open court and on the record.

- In this case, in-chamber discussions, in the absence of a self-represented accused, involving comments on the quality of evidence and possible resolution, violated the appellant’s right to be present under s. 650.

- A violation of s. 650 can sometimes be remedied under the curative proviso where the appellant has not suffered prejudice as a result of the violation. The factors in R. v. Simon, 2010 ONCA 754, are a helpful framework for assessing whether or not the curative proviso should apply in a given case to remedy a s. 650 violation.

BACKGROUND

The appellant was charged with sexual offences against his two daughters including incest, sexual assault and sexual exploitation.

The appellant was initially represented by counsel. In the month leading up to trial, defence counsel, the Crown and the trial judge exchanged e-mails. In one of these e-mails, defence counsel notified the trial judge that the appellant intended to plead guilty to the sexual assault and exploitation charges but would be proceeding to trial on the incest charge.

On the first day of trial, defence counsel asked to be removed from the record. As a result, the trial judge appointed amicus curiae to represent the interests of the defence, and appointed counsel to cross-examine the complainants pursuant to s. 486.3 of the Criminal Code.

The second week of trial, the trial judge asked all three counsel (the Crown, amicus and s. 486.3 counsel) to meet in-chambers. Referencing the e-mail discussed above, the trial judge inquired about the possibility of the matter resolving noting some concerns about one of the complainant’s evidence. As a result, amicus and the Crown spent the afternoon working out a potential plea. The three counsel then met again in-chambers to discuss the proposed resolution with the trial judge. The Crown asked amicus to notify the appellant of the in-chambers discussion; seemingly, amicus failed to do so. The trial judge noted he had no problem with the proposed resolution, but that if it did not go ahead, he would continue the trial.

Following this second meeting, court resumed. No mention was made of the in-chambers meetings. After some discussion, the appellant indicated he would plead guilty to all counts except the incest count. During the plea inquiry, the appellant indicated that he had decided to plea “a long time ago”.

Ultimately, the appellant pleaded guilty on the remaining counts and incest count was dismissed. As part of this plea, the appellant admitted to sexually abusing his daughters but did not agree that there was any penetration.

He was then designated a dangerous offender and received an indeterminate sentence.

The appellant appealed against his convictions and sentence largely taking issue with the performance of amicus at trial. During the cross-examination of amicus, the in-chambers meetings came to light – 4 years into the appellant’s sentence.

THE E-MAILS

Forecasting potential guilty pleas to a trial judge, particularly where a matter is scheduled to proceed as a judge-alone trial, risks placing the judge in a difficult position. In an effort to maintain impartiality, trial judges are typically not privy to resolution discussions. An accused person may also have a change of heart and decide not to plead guilty. While this is the accused person’s right and choice, the trial judge, having been privy to the previous intention to plea, was informed that the appellant, at one time, was prepared to admit to sexually abusing his daughters.

THE IN-CHAMBER MEETINGS & THE RIGHT TO BE PRESENT

This appeal demonstrates the dangers of trial judges conducting in-chambers discussion with counsel during trial.

By virtue of s. 650 of the Code, an accused has the right to be present in court during the whole of their trial:

“The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heard it, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring firsthand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overriding principle underlying those decisions.”

R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.) at p. 537.

Not every in-chambers meeting, however, will violate s. 650. Whether s. 650 is infringed depends on whether the context and contents of the discussion involved or affected the vital interests of the accused or whether any decision made affected the “substantive conduct of the trial”.

The default position, however, in all criminal trials is that any conversation involving trial counsel ought to take place in the appellant’s presence, in open court and on the record.

APPLICATION

(1)    The appellant’s right to be present was breached

The Crown in this case rightfully conceded that the in-chambers meetings ran afoul of s. 650 of the Code and could not be remedied under the proviso (s. 686(1)(b)(iv)).

It was improper to engage in resolution discussions in the absence of the appellant, this evidently implicated his vital interests. Comments on the quality of evidence, in this context, are clearly meant to encourage plea discussions. Both are improper. These types of comments become particularly problematic if resolution is not ultimately achieved and the trial continued. The appearance of impartiality is lost.

The impropriety of these in-chamber discussions was compounded by the fact that the appellant was self-represented and that there was no record of these discussions.

(2)    The Curative Proviso does not apply

Pursuant to s. 686(1)(b)(iv) of the Code, the Court of Appeal may dismiss an appeal where, notwithstanding any procedural irregularity at trial, the Court of Appeal is of the opinion that the appellant suffered no prejudice.

In the context of s. 686(1)(b)(iv), “prejudice” may include (a) prejudice to the ability of an accused to properly respond to the Crown’s case and to receive a fair trial; and (b) prejudice to the appearance of the due administration of justice. The latter applies to this case.

R. v. Simon, 2010 ONCA 754, sets out a number of factors to consider in assessing whether or not a s. 650 violation should be saved by the proviso:

To determine whether a breach of s. 650(1) may be salvaged by the application of the proviso in s. 686(1)(b)(iv) requires a consideration of all the circumstances surrounding the violation. Relevant factors may include, but are not limited to,

(i) the nature and extent of the exclusion, including whether it was inadvertent or deliberate;

(ii) the role or position of the defence counsel in initiating or concurring in the exclusion;

(iii)whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused;

(iv) whether any discussions in the accused's absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters;

(v) the effect, if any, of the discussions on the apparent fairness of trial proceedings; and

(vi) the effect, if any, of the discussions on decisions about the conduct of the defence.

The “Simon factors” in this case overwhelmingly favour the appellant:

  • The trial judge intentionally excluded the appellant from an important part of his trial by inviting counsel into his chambers;

  • The meetings were never referred to on the record, and the appellant was not advised that they took place;

  • The discussions were substantive in nature; and

  • Given it is a judge-alone trial, the conversations prejudiced the fair trial interests of the accused.

As a result, the violation of s. 650 in this case cannot be saved by the proviso.

Disposition – Appeal allowed; New trial ordered.

Read the full decision here.

Sara Littleright to be present, curative proviso, s. 650, in chamber discussionsComment