Discussion between judge and lawyers deprived accused of right to be present
An in-chambers meeting the excluded a self-represented accused, during which the judge commented on the quality of the evidence and urged the lawyers to reach a resolution, breached the accused’s right to be present at his own trial, the Ontario Court of Appeal has found.
The appellant in R. v. S.M., 2022 ONCA 765 faced the following charges under the Criminal Code relating to his two daughters: one count of incest, two counts of sexual assault, and two counts of sexual exploitation.
On the day that the trial was scheduled to start, defence counsel requested removal from the record based on a breakdown in the solicitor-client relationship. The trial judge granted the removal and denied the appellant’s request for an adjournment for him to retain a new lawyer.
The appellant was self-represented at trial. The judge appointed a lawyer as amicus curiae and also appointed counsel to cross-examine the complainants under s. 486.3 of the code.
During the trial’s second week, the judge invited the Crown, amicus curiae, and s. 486.3 counsel into his chambers to express his concern about the Crown’s case on the incest charge and to urge the lawyers to resolve the matter via a guilty plea. After this meeting, the Crown and amicus curiae worked out the details of a potential plea. Later that same day, the judge held a second in-chambers meeting with all three counsel to canvas the proposed resolution. He said that he had no issue with the proposal.
The appellant pled guilty to all charges except the incest count. The parties agreed that the appellant would admit to sexually abusing both daughters but that the incest charge would be dismissed.
The appellant, still self-represented, appealed his convictions and sentence. He made numerous complaints about amicus curiae’s performance. The Lawyers’ Professional Indemnity Company (LAWPRO) appointed counsel to represent amicus curiae. During the cross-examination stage, LAWPRO counsel stated that he had just learned about the in-chambers discussions.
On appeal, the appellant argued that the in-chambers meetings deprived him of his right to be present in court at his own trial under s. 650 of the code. The Crown conceded solely based on the in-chambers discussions.
Right to be present breached
The Court of Appeal accepted the Crown’s concession, allowed the appeal, set aside the convictions on the two counts of sexual assault, and ordered a new trial on the basis that the in-chambers meetings clearly violated s. 650 in two ways.
First, the appellate court ruled that participating in resolution discussions while the appellant was absent was improper. Second, the court held that the trial judge should not have adversely commented on the evidence of one of the daughters. The breach was more serious in this case since the appellant was self-represented and there was no record of the in-chambers discussions, the court said.
Next, the Court of Appeal determined that s. 686(1)(b)(iv) of the code, the curative proviso, could not save the serious procedural irregularity arising due to the in-chambers meetings. Almost all the factors in R. v. Simon, 2010 ONCA 754, favoured the appellant, the appellate court said.
The presence of amicus curiae and s. 486.3 counsel during the discussions did not mitigate the irregularity because they were not able to represent the appellant’s interests, the appellate court explained. Amicus curiae did not tell the appellant about the meetings after the Crown asked him to do so. During cross-examination, amicus curiae said that he did not think that the meetings were consequential. On the other hand, s. 486.3 counsel did not remember being in chambers.
The Court of Appeal also noted that the judge intentionally excluded the appellant from an important part of his trial and that the in-chambers discussions were substantive in nature.