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Criminal - Trial - Mandatory Attendence by Defendant [CCC 650(1)]. R. v. Colley
In R. v. Colley (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal in a child murder.
Here the court considers 'mandatory attendece by defendant' at trial under CCC 650:(3) The Right to Be Present Was Violated
(a) The Scope of s. 650(1) of the Criminal Code
[86] We also allow the appeal on the related ground that the trial judge excluded the appellants from their trial, contrary to s. 650(1) of the Criminal Code. This section provides that, subject to certain exceptions that have no application in this case, “an accused … shall be present in court during the whole of their trial.”
[87] The courts have taken an expansive view as to what constitutes part of the trial for the purposes of s. 650(1): see James; R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 137 D.L.R. (3d) 400 (Ont. C.A.), at p. 426; and R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694. In R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at para. 60, Watt J.A. said: “Few words are required to explain the combined effect of ss. 650(1) and 650.1 of the Criminal Code. In court. On the record. In the presence of the accused. No more is required. Nothing less will do.”
[88] The “whole of their trial” may extend to what transpires in a trial judge’s chambers. In Poulos, LaForme J.A. said the following, at paras. 18-20:Not every in-chambers discussion will constitute part of the accused’s “trial”. The classification of an in-chambers discussion as part of the trial will depend on whether the context and contents of the discussion involved or affected the vital interests of the accused or whether any decision made bore on “the substantive conduct of the trial”: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 116, leave to appeal refused, [2010] S.C.C.A. No. 459.
In this case, the discussion of the evidence and of a possible plea bargain involved or affected the vital interests of the appellant. This inevitably arose once the trial judge expressed a view about the complainants’ testimony and proposed that the accused enter a guilty plea, although to a lesser and included offence.
This court has warned that “the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the [accused’s] presence, in open court, and on the record”: R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at para. 68. Such a practice would avoid the time-consuming and occasionally discomforting inquiry into whether this court can salvage a verdict tainted by a s. 650(1) violation through resort to the curative proviso. [Emphasis added.] There are numerous examples in the case law where appellate courts have held that similar in-chambers discussions about bringing about a resolution breach s. 650(1) of the Criminal Code: see Walker, at para. 22; Roy, at pp. 98-99; James, at para. 21; S.M., at paras. 36-37; Dayes, at para. 68; and Schofield.[2]
[89] There can be little doubt in this case that the trial judge’s request that counsel attend chambers so that he could deliver his unsolicited assessment of the appellants’ fortunes at trial, and his encouragement to plead guilty, impacted on their vital interests for the purpose of s. 650(1). Contrary to the respondent’s submissions, there was nothing “preliminary” about these in-chambers meetings. The trial judge addressed the essential issue at trial – the appellants’ guilt. He stressed that the evidence against them was overwhelming. He pre-judged a live issue on one of the motions that was before him – whether the prejudicial impact of the video of Jaelin outweighed its probative value.
[90] This brings us to the trial judge’s comment in his ruling in which he dismissed the mistrial/recusal motion: “I did not discuss trial evidence, as I have not heard any.” This is not accurate. The trial judge may not have heard evidence alongside the jury as part of the trial proper, but he had clearly heard and analyzed evidence. He was engaged in pre-trial motions to determine the admissibility of certain critical pieces of evidence. He heard and saw the appellants’ statements and the video of Jaelin, which he characterized as a “fucking disaster”. All of this evidence was admitted and subsequently presented in the presence of the jury. The vital interests of the appellants were squarely engaged.
[91] The message was made clear over 30 years ago that trial judges should not conduct resolution discussions in chambers. In Hon. G.A. Martin (Chair), Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Queen’s Printer for Ontario, 1993) (“the Committee”) the Committee made the following recommendation, at p. 378:77. The Committee is of the view that, absent exceptional circumstances, it is inappropriate to engage in resolution discussions with the trial judge in Chambers. [92] The Committee was concerned about the appearance of impropriety and the loss of the perception of impartiality: at pp. 378-382. See also Patrick Curran, “Discussions in the Judge’s Private Room”, [1991] Crim. L.R. 79. As noted in the discussion above, this court has on numerous occasions discouraged what happened in this case.
[93] Section 650(1) of the Criminal Code was infringed in the circumstances of this case.
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[96] In R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, Watt J.A. provided, at para. 123, a list of considerations for determining whether a breach of s. 650(1) may be salvaged by this curative proviso: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. . R. v. Mills
In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident".
Here the court considers CCC 650(1) - which requires a defendant to be "present in court during the whole of their trial" - and related procedural facts:[28] Section 650(1) of the Criminal Code requires an accused person to be “present in court during the whole of their trial”. This includes sentencing proceedings: see e.g., R. v. Petrovic (1984), 1984 CanLII 2003 (ON CA), 13 C.C.C. (3d) 416 (Ont. C.A.), at pp. 425-26. As Martin J.A. explained in R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 537, leave to appeal refused, [1982] S.C.C.A. No. 124:[T]he characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests. [29] This court has previously observed that s. 650 codifies a pre-existing common law right (see R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 34-35), and that “[t]he right to be present at one’s trial also has a constitutional footing”: R. v. S.M., 2022 ONCA 765, at para. 33; see also R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.
[30] The right to be present at trial in s. 650(1) is subject to a number of statutory exceptions. Most notably for present purposes, s. 650.01(1) permits criminal defendants to “appoint counsel to represent [them] for any proceedings under this Act by filing a designation with the court”. Section 650.01(3) then sets out the circumstances in which an accused person may appear by designated counsel rather than by appearing personally, while s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.
[31] In this case, the June 29, 2021 appearance before the trial judge plainly engaged the appellant’s vital interests. The trial judge was evidently concerned about the possibility that his guilty plea three months earlier had not been adequately informed, and had arranged the June 29, 2021 appearance in order to conduct what would have effectively been a further plea inquiry.
[32] Although the trial judge had specifically requested that the appellant appear personally on June 29, 2021, the Crown argues that s. 650.01(3) nevertheless gave her jurisdiction to proceed in his absence, because his counsel had previously filed a designation, and because s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.
[33] Even assuming that the appellant’s absence on June 29, 2021 did not cause the trial judge to lose jurisdiction, by virtue of s. 650.01, we are not satisfied that the existence of a designation cures the broader problem that arose when the trial judge conducted what was effectively a further plea inquiry with the appellant’s counsel, in the appellant’s absence. We reach this conclusion for four main reasons.
[34] First, while s. 650.01(3) permits guilty pleas to be taken in the accused’s absence, s. 650.01(3)(c) also creates a default presumption that the accused should be present, “unless the court orders otherwise”. Although the appellant had already entered his guilty plea months earlier, the trial judge evidently meant to use the June 29, 2021 appearance to conduct what would in effect be a further plea inquiry. She had also specifically directed that the appellant should attend personally by videoconference.
[35] Second, it is undisputed that the appellant’s trial counsel never told the appellant about the June 29, 2021 appearance. As far as the appellant knew, his case had gone over to August 5, 2021 for sentencing. Even though the appellant had previously signed a designation of counsel, it is debateable whether this gave trial counsel the authority to appear on the appellant’s behalf, without specific instructions, at a court appearance that the appellant had no idea was taking place.
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[41] Fourth, in our view, the June 29, 2021 proceedings squarely engaged the animating purpose of the common law and statutory “presence” requirement. As Martin J.A. observed in Hertrich, at p. 537: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 first-hand 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. See also R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at p. 706; R. v. M.C., at para. 37.
[42] The appellant ought to have been afforded the opportunity to be present on June 29, 2021. In her reasons for sentence given on August 5, 2021, the trial judge stated that she had heard “further submissions”, and that these submissions had satisfied her that the appellant:... was aware of the impact this conviction could have on his immigration status and had given his counsel … informed instructions to continue with this sentencing process. [43] The appellant was unaware that there had been a further court appearance where his knowledge of the impact of a conviction and sentence on his immigration status had been discussed in his absence. The submissions made on this occasion led the trial judge to incorrectly believe that the appellant had received immigration law advice from his trial counsel. Since he was not present at this appearance, the appellant had no opportunity to correct the record.
[44] Section 686(1)(a)(iii) permits us to allow a conviction appeal “on any ground where there was a miscarriage of justice”. We need not decide whether the appellant’s absence during the June 29, 2021 appearance violated his statutory right to be present during the whole of his trial under s. 650 of the Criminal Code, because we are satisfied that the proceedings that took place in his absence on this occasion gave rise to a miscarriage of justice: see R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 44.
[45] The Crown argues that even if the trial judge was misled about the appellant’s knowledge of the potential collateral immigration consequences of his guilty plea, “that does not undermine his designation, nor ought it to convert a procedural irregularity into a fatal breach of the [a]ppellant’s rights”.
[46] We disagree. Even if we assume that trial counsel had the authority under s. 650.01 to appear on the appellant’s behalf at the June 29, 2021 appearance pursuant to the designation, we are not persuaded that the appellant’s absence caused him no prejudice. It is possible that the appellant’s guilty plea might have been struck. Furthermore, the appellant’s absence at the June 29, 2021 appearance affected “the apparent fairness” of the proceedings: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 123, leave to appeal refused, [2010] S.C.C.A. No. 459.
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