R. v. M.C., 2023 ONCA 611

what you need to know

-production applications (including s. 278.3 application) will generally be part of the trial, requiring the attendance of the accused, pursuant to s. 650.

background & FACTS

Following a jury trial, the appellant was convicted of child luring. The charge arose from communications the appellant had with a police officer posing as a 14-year-old female. At trial, the appellant claimed he did not believe the subject was under 18-years of age and that he believed the ad was likely posted by persons intending to rob or rip off patrons, or was possibly an ad posted by police officers. He stated he intended to investigate the poster with the intention of exposing the scam or reporting any under-age sex worker he may encounter. In support of his defence, he presented evidence in support of his “history of opposing child sex work” including sending reports to “abuse@backpage.com”, posting “warning ads” and submitting Crime Stoppers about scams and suspected underage prostitution. The Crown took the position that the evidence made clear the appellant was not concerned about children being exploited but rather about being robbed or ripped off.

Prior to trial, in anticipation of the Crown’s position, the defence brought a third-party records application pursuant to s. 278.3 of the Criminal Code in relation to, amongst other things, documents in the possession of Crime Stoppers.

On appeal, the appellant argues that the trial judge erred, contrary to s. 650 of the Criminal Code, in excluding him from his trial when the trial judge received ex parte submissions from a third-party records holding during a s. 278 application he had brought in aid of his defence.

Disposition - Appeal allowed; new trial ordered.

ISSUE ON APPEAL

Did the trial judge err, contrary to s. 650 of the Code, by receiving ex parte submissions during a third-party records application? - Yes.

ANALYSIS

Section 278.3 Applications

Section 278.3 applications are conducted in two stages. At stage 1, an applicant must establish: (1) that their application conforms to s. 278.3(2)-(6), (2) that the record is “likely relevant”, and (3) that its production is “necessary in the interests of justice": s. 278.5.

The “interests of justice” requires the judge to inquire, as best as can be done in the absence of having seen the record, into the “extent to which the record is necessary for the accused to make full answer and defence” (s. 278.5(2)(a)) and “the probative value of the record” (s. 178.5.2(2)(b)).

The judge is also required to consider any opposing interests and the preservation of the integrity of the trial process.

If the applicant does not meet these requirements, the application fails. If it does, the judge must order the production of the record for review “in the absence of the parties” to determine whether the record should be produced to the applicant: s. 278.6(1).

Stage 2, which is only undertaken if the applicant meets their stage 1 burden, involves the review of the records by the judge to determine whether to produce records to the applicant. Section 278.7(1) sets out the pre-requisites to producing the records to an applicant. One of which is again “likely relevance” - at this stage, however, the focus is on whether the contents of the records are likely relevant to “likely” issues. Before ordering production, the judge must also be satisfied that production is “necessary in the interests of justice”.

Application to this Case

In this case, the trial judge heard submissions relating to both stages of the s. 278.3 application at the same time. During those submissions counsel for Crime Stoppers argued that the records would not be “likely relevant” unless they relate to an issue that is contested between the parties and they contain evidence that the Crime Stoppers tips were about under-age sexual services. The other parties expressed agreement with the latter “likely relevance” submission but made no comment on whether, to be relevant, evidence must relate to an issue that is contested.

Counsel for Crime Stoppers also argued that if the trial judge found the evidence to be “likely relevant”, the proceedings should move in camera for stage 2 and the court should invite submissions, and that during the in camera hearing the accused and his counsel are to be excluded. Only he could attend.

The appellant’s counsel objected strongly to proceeding in this way. He argued that since the s. 278 application was part of his trial, neither the appellant nor his counsel could be excluded during stage 2 submissions.

At stage 1, the trial judge ruled that the “preliminary test” was met in that the “documents are a record, they exist and they may be relevant”. He did not address whether production of the records to the court was necessary in the interests of justice. He then proceeded to an in-camera proceeding in the absence of the Crown and defence to hear submissions from Crime Stoppers’ counsel. For nearly 10 minutes, the trial judge heard ex parte submissions from Crime Stoppers’ counsel; these submissions were held in camera and were not transcribed. The judge then returned and provided his stage 2 ruling finding that the records should not be produced to the accused thereby dismissing the appellant’s application.

The trial judge relied on s. 278.4 as authority for receiving the ex parte submissions.

Section 650 of the Code

Under s. 650 of the Code, accused persons have the right to be present at their own trial - it is not merely an entitlement, but an imperative that the accused shall be present in court during the whole of their trial. Similarly, at common law, it has long been held that the “right to be personally present at one’s trial of an indictable offence” is a “fundamental principle of criminal law”: R. v. Hertrich (1982), 137 D.L.R. (3d) 400 (Ont. C.A.).

This right serves two purposes: (1) attendance provides the accused with an opportunity to hear the case being made against them and to have an opportunity to answer it, and (2) provides an accused the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result, the denial of which may leave the accused with a justifiable sense of injustice.

Given the importance of this right, the failure to comply with s. 650 is not simply a legal error - it is a jurisdictional errors without the necessity of the accused showing that they suffered prejudice. Section 686(1)(b)(iv), however, makes it possible, under the curative proviso, for the Crown to cure breaches of s. 650 that amount to a “procedural irregularity at trial”.

Application to this Case

On appeal, the Crown argued that either (1) there was no contravention of s. 650 as the s. 278 application was not part of the trial, or (2) that the curative proviso applies.

The word “trial” in s. 650 is to be “liberally construed”.

The proper test to be applied is “whether an aspect or or procedural incident of or associated with a criminal trial is part of the trial depends upon whether: what occurred involved or affected the vital interests of the accused; or whether any decision made had a bearing on the substantive conduct of the trial”: R v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at para. 56.”

Importantly, this is not to be determined by asking whether the outcome would have been the same whether the accused had been present. The focus is on whether the proceeding involved a vital interest or issue related to the determination of the trial.

In this case, the trial judge received submissions from Crime Stoppers’ counsel clearly opposing the appellant’s application brought in support of his right to make full answer and defence. Those submissions were clearly directed at, and involved, the appellant’s vital interest. They were meant to prevent him from having the access to documentation he sought to assist in his case, and the decision that the trial judge was going to make after that hearing clearly had a bearing on the substantive conduct of the trial.

As a result of the failure of the s. 278 application, the Crown was able to challenge the appellant’s credibility by pointing to the absence of documentation supporting his claims, the very outcome the appellant was seeking to forestall. In my view, the fact that the Crown made submissions during trial relating to the credibility of the appellant’s defence that depended on the outcome of the application underscores the impact of the s. 278 application on the substantive conduct of the trial.

While a s. 278.3 application is a production motion, not an admissibility motion, production provides the gateway to admissible evidence. As this case shows, disclosure or production motions are not inherently remote from the issues in the trial or the manner in which it will be conducted and are not per se events that occur outside of the trial. Indeed, since production applications involve attempts to secure targeted information in order to present full answer and defence, production applications will generally be part of the trial, requiring the attendance of the accused, pursuant to s. 650.

The Court of Appeal also concluded that the trial judge erred in relying on s. 278.4 as authority for excluding the appellant.

Section 278.4 reads as follows:

s. 278(4)(1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

It can be seen that s. 278.4 provides for in camera proceedings, not ex parte hearings. There is a difference. During an in camera hearing the public is excluded. During an ex parte hearing one or more of the parties appear, to the exclusion of one or more of the other parties. Yet the trial judge relied on this provision as authority for hearing submissions from Crime Stoppers in the absence of the appellant., an authority s. 278.4 does not provide.

It is also important to point out that s. 278.4 applies to stage 1 hearings, not stage 2 hearings yet the trial judge erroneously relied upon it as governing the conduct of a stage 2 hearing. Section 278.4 specifies that an in camera hearing must be heard “to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge”, which, of course, is the determination that gets made at stage 1. Section 278.4 has no application to stage 2 hearings, where s. 278.6(2) applies.

CONCLUSION

Since stage 2 of the s. 278.3 hearing was part of the appellant’s trial, and no exception under s. 650 operated to permit the exclusion of the appellant and his counsel, the Court of Appeal concluded that there was a s. 650 error. The Court of Appeal went on to conclude that the error was not saved by the proviso under s. 686(1)(b)(iv) in this case.

For more information on “third-party records applications” check out Emond’s “Prosecuting and Defending Sexual Offence Cases, 2nd Edition”, chapters 4, 11, 12 and 17.