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Presentation - Criminal

. R. v. S.M.

In R. v. S.M. (Ont CA, 2022) the Court of Appeal considered a criminal principle of importance to defendants without counsel, here the right of a defendant to be present during all of their trial (here it was a meeting in chambers that he was not present for) [s.650 CCC]:
(1) The Right to be Present

[33] Subject to some exceptions that are not relevant to this case, s. 650 of the Criminal Code provides that an accused person “shall be present in court during the whole of his or her trial.” The right to be present at one’s trial also has a constitutional footing: see R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.

[34] In R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), Martin J.A. explained the importance of the right to be present at trial, at p. 537:
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 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. 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.
This passage was endorsed by Dickson C.J.C. in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at pp. 705-707, and more recently by MacPherson J.A. in R. v. Schofield, 2012 ONCA 120, 109 O.R. (3d) 161, at para. 16; see also R. v. Walker, 2010 SKCA 84, 258 C.C.C. (3d) 36, at para. 19.

[35] Not every in-chambers discussion forms part of the accused’s trial for the purposes of s. 650: Schofield, at para. 18. In R. v. Poulos, 2015 ONCA 182, 124 O.R. (3d) 675, LaForme J.A. held that, whether s. 650 is infringed “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’: at para 18, citing 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.

[36] It is not necessary to catalogue what may or may not be tolerated by s. 650. This court has repeatedly held that, “the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the appellant’s presence, in open court, and on the record. This should also apply to discussions held in a judge’s chambers, since the term ‘trial’ in s. 650(1) can include in-chambers discussions”: R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at para. 68; see also Simon, at para. 117. I would also endorse Watt J.A.’s views in Burnett, at para. 60, that few words are required to convey the command of s. 650: “In court. On the record. In the presence of the accused. No more is required. Nothing less will do.”

[37] I agree with both counsel that what happened in this case ran afoul of s. 650 of the Criminal Code in two ways. First, it was improper to engage in resolution discussions in the absence of the appellant. This clearly implicated his vital interests. Second, the trial judge should not have commented adversely on the evidence of V.M.

[38] This scenario – an in-chambers meeting in which a trial judge comments on the quality of the evidence and then encourages resolution discussions – has been criticized in numerous decisions of this court: see Schofield, at paras. 19-21; R. v. Roy (1977), 1976 CanLII 1396 (ON CA), 32 C.C.C. (2d) 97 (Ont. C.A.), at pp. 98-99; R. v. James (2009), 2009 ONCA 366 (CanLII), 95 O.R. (3d) 321, at para. 21; Poulos, at paras. 19-22; and Dayes, at paras. 69-70. In these situations, it is clear that the former (comments about the evidence) is meant to encourage the latter (plea discussions). Both are improper. In-chambers comments about the evidence are particularly problematic if resolution is not achieved and the trial continues. The appearance of impartiality is lost.

[39] As Richards J.A. of the Saskatchewan Court of Appeal said in Walker, at para. 38: “If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid-trial for the purpose of expressing their views about the substance of the proceedings and making inquiries about plea bargaining.”

[40] The infringement was made more serious in this case because, unlike some of the cases referred to above, there was no record of these in-chambers discussions. Unlike all of these cases, the appellant was self-represented. This reality was not ameliorated by the presence of amicus curiae or s. 486.3 counsel. The latter does not remember being in chambers. The former did not tell the appellant what had transpired, even after being asked to do so by the trial Crown. He did not believe that it was “consequential”.

[41] Section 650 of the Criminal Code was breached by the in-chambers discussions that were held in this case.
At paras 42-54 the court considers, and dismisses, the application of the CCC s.686(1)(b)(iv) curative proviso.


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