WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b)     on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

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

DATE: 20221109

DOCKET: C59439

Trotter, Thorburn and Favreau JJ.A.

BETWEEN

His Majesty the King

Respondent

and

S.M.

Appellant

S.M., acting in person (via videoconference)

Mabel Lai, for the respondent

Dan Stein, appearing as amicus curiae

Heard: October 14, 2022

On appeal from the convictions entered by Justice Douglas J.A. Rutherford of the Superior Court of Justice on January 31, 2013.

Trotter J.A.:

A.           introduction

[1]          This appeal demonstrates the hazards of trial judges conducting in-chambers discussions with counsel during a criminal trial.

[2]          The appellant was charged with sexual offences against his two daughters. He was self-represented at trial, although the trial judge appointed amicus curiae (not Mr. Stein). He also appointed counsel to cross-examine the complainants, pursuant to s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46.

[3]          During the second week of the trial, the trial judge invited the Crown, amicus curiae, and s. 486.3 counsel into his chambers. He expressed concern about the Crown’s case on one of the counts. He encouraged the lawyers to resolve the case by way of a guilty plea. Following another in-chambers meeting later that same day, the appellant pled guilty to four of the five charges that he faced. On August 27, 2014, he was designated a dangerous offender and received an indeterminate sentence: see R. v. S.M., 2014 ONSC 4954.

[4]          There was no mention of the in-chambers meetings in open court. Amicus curiae did not tell the appellant about the meetings. It was not until four years into his sentence that the appellant first learned of these meetings with the trial judge.

[5]          The appellant challenges his convictions on the basis that the in-chambers meetings deprived him of the right to be present at his own trial, in violation of s. 650 of the Criminal Code. The Crown acknowledges the breach. It does not purport to rely on the curative proviso in s. 686(1)(b)(iv).

[6]          In my view, s. 650 was clearly breached by what happened in this case. This amounted to a serious procedural irregularity that cannot be saved by s. 686(1)(b)(iv). I would accept the Crown’s concession, set aside the convictions, and order a new trial.

B.           background

(1)         Introduction

[7]          The following factual backdrop is gleaned from court transcripts and the fresh evidence that was gathered for this appeal.

[8]          The appellant’s notice of appeal listed numerous grounds of appeal, some of which implicated the conduct of amicus curiae. It was during the cross-examination of this lawyer on his affidavit that the in-chambers discussions with the trial judge were revealed for the first time.

[9]          This revelation took the appeal in a different direction. The Crown and amicus curiae appointed on appeal (Mr. Stein) compiled a record relating to this issue. As noted below, counsel agree that the best account of the in-chambers meetings comes from the detailed notes made by the trial Crown around the time that these events transpired.

(2)         The Charges

[10]       Given that there must be a new trial, and because the facts the appellant agreed to at the time of his guilty plea fall far short of the complainants’ allegations, it is best not to discuss the charges in great detail. However, some context is important.

[11]       The appellant was charged with one count of incest (Criminal Code, s. 155), two counts of sexual assault (Criminal Code, s. 271), and two counts of sexual exploitation (Criminal Code, s. 153). He is alleged to have sexually violated his two daughters, V.M. and M.M. The offences are alleged to have taken place in 1995 and 1996 as well as in 2001 and 2002 when V.M. was six to eight years old and M.M. was nine to ten years old.

[12]       The assaults occurred in different homes in which the family lived. M.M. also alleged that the appellant sexually assaulted her in a Private Family Visit unit on the grounds of Bath Institution (where the appellant was serving a penitentiary sentence). Both daughters alleged that, in the course of these assaults, the appellant vaginally penetrated them. However, when the appellant entered his guilty pleas, he did not admit to penetrating either girl.

(3)         Events Leading Up to the Trial

[13]       The appellant was initially represented by counsel, but this would change.

[14]       On November 28, 2012, roughly a month before the trial was scheduled to start, the trial judge sent an email to the trial Crown and defence counsel. He introduced himself as the judge assigned to preside over the trial and then asked the following questions:

Are there any motions to be brought or issues that may arise at trial that under the Criminal Proceedings Rules require Notice of Motion and factums? Are there any special issues that you foresee my having to rule on that would benefit from my having read any particular authorities in advance?

[15]       Defence counsel responded and indicated that she was attempting to “narrow the issues” with the Crown. The trial judge wrote again to thank both counsel and said, “I look forward to a more detailed response when you and [the trial Crown] have further discussions, hopefully narrowing the outstanding issues.”

[16]       On December 9, 2012, defence counsel sent a further email to the trial judge advising him that counsel were unable to narrow the issues. She also wrote:

Notwithstanding that, I have instructions from my client that he intends to enter pleas of Guilty to the counts of sexual assault and sexual interference and to admit the facts contained in his incriminating statements to various correctional authorities.

I am given to understand that the Crown will be proceeding on Count #1 of the Indictment, to wit, incest, and the plea to that will be Not Guilty.

[17]       I pause to note that this email is at the root of what subsequently went wrong in this case. Forecasting of this type of information to a trial judge, especially when the case is scheduled to proceed as a judge alone trial, risks placing the judge in a difficult position. In order to maintain impartiality, trial judges are typically not privy to resolution discussions. Many things can happen in the lead-up to a trial. The anticipated evidentiary foundation may shift in a way that discourages the intended guilty plea. Moreover, an accused person may have a change of heart and decide not to plead guilty. That is what happened in this case. The case ended up proceeding to trial; but in the meantime, the trial judge had been informed that the appellant was, at one time, prepared to admit to sexually abusing both daughters. This disclosure took on great significance once the trial commenced.

(4)         The Trial

[18]       The trial did not get off to a smooth start. On the day that trial was set to begin, defence counsel asked to be removed from the record on the basis of a breakdown in the solicitor-client relationship. The trial judge acceded to this request. The appellant requested an adjournment to allow him to retain a new lawyer. The trial judge denied this request, presumably because previous trial dates were vacated when the appellant discharged counsel.

[19]       There was some discussion about trial counsel accepting an appointment as amicus curiae, but this did not occur. First, the appellant objected to the same lawyer acting in this role. Also, trial counsel was not willing to accept this appointment at legal aid rates. Consequently, a different lawyer was appointed as amicus curiae. The trial judge gave him a broad mandate, including, “to assist the Court, and not to act directly on the instructions of the defence, but to act in the interest of the defence.” As noted above, another lawyer was appointed under s. 486.3 of the Criminal Code.

(5)         The Meetings in Chambers

[20]       Counsel on the appeal agree that an accurate rendition of what transpired in chambers comes from the trial Crown’s contemporaneous notes. This version of events is not materially disputed by amicus curiae at trial. Counsel appointed under s. 486.3 reported no recollection of in-chambers discussions.

[21]       The two in-chambers meetings happened during the second week of trial. After lunch on January 31, 2013, a court officer advised all three counsel that the trial judge wished to see them in chambers. At the time, V.M. had completed her testimony and M.M. was still under cross-examination.

[22]       When counsel arrived in the trial judge’s chambers, the Crown expressed concerns about the propriety of being there. The trial judge interrupted him and told him not to worry because nothing was going to be decided.

[23]       The trial judge then referred to the email from trial counsel reproduced in para. 16, above. As the trial Crown remembered it:

The judge asked semi rhetorically what the issue was at this trial and then asked if something could be worked out between amicus acting on [the appellant’s] behalf and Crown. The Judge didn’t get into specifics on evidence and only asked whether or not something could be worked out. The Judge did indicate he thought that there was grave or real doubt on the incest part [sic, charge?].

[24]       The Crown was careful to note that the trial judge did not exert any pressure on counsel to resolve matters; “he just wondered if there was any possibility.”

[25]       After this meeting, the trial Crown and amicus curiae spent the afternoon working out the details of a potential plea. Amicus curiae facilitated negotiations with the appellant and the Crown by acting as a go-between. The second in-chambers meeting then took place when all three counsel met with the trial judge to canvas the proposed resolution. Importantly, the Crown recalled asking amicus curiae to let the appellant know that they would be seeing the trial judge in chambers, but this did not happen. At this second meeting, the trial judge indicated that he had no problem with the resolution, but if it did not go ahead, he would continue the trial.

(6)         The Guilty Plea

[26]       Following the second meeting, court resumed. No mention was made of the in-chambers meetings. The Crown simply advised the trial judge that he understood that the appellant wished to change his plea to guilty on four counts. The appellant initially resisted, claiming that he did not wish to plead guilty. The trial judge permitted a brief recess so that amicus curiae could have further discussions with the appellant. After this meeting, the appellant indicated that he would plead guilty to all counts except the incest count.

[27]       The trial judge engaged in a plea comprehension inquiry. In the course of this exchange with the appellant, the trial judge asked, “And is it a decision that you have arrived at in your own mind voluntarily?” The appellant answered: “Long ago; long ago”. When asked to repeat his response, he said: “I said a long time ago.” During the same discussion, the appellant said that his “whole purpose for this trial” was to defend against the incest charge.

[28]       The plea proceeded. It was agreed that the incest charge would be dismissed and that the appellant would admit to sexually abusing both daughters. However, he did not agree that there was any penetration. The appellant was found guilty on this basis.

(7)         Post-Trial Events

[29]       The appellant appealed his convictions and sentence. He is self-represented. The appellant made various complaints about the performance of amicus curiae. The appellant swore an affidavit and was cross-examined. Amicus curiae swore an affidavit in which he responded to these complaints. He made no mention of the in-chambers meetings with the trial judge.

[30]       Amicus curiae was cross-examined by the appellant. Because the appellant was self-represented, the cross-examination took place in front of a Superior Court judge. By this time, amicus curiae was represented by counsel appointed by the Lawyers’ Professional Indemnity Company (“LAWPRO”). After consulting with amicus curiae, LAWPRO counsel advised everyone in court that he had just learned about the in-chambers meetings. The cross-examination continued. When the appellant asked amicus curiae why he did not advise him of these discussions, he answered: “I didn’t think it was consequential.”

[31]       Following the cross-examinations, Mr. Stein was appointed as amicus curiae for the appeal. The Crown eventually decided to concede the appeal, based solely on the in-chambers discussions with the trial judge. MacPherson J.A. ordered that the appeal be bifurcated so that a panel of this court could determine whether the appeal should be allowed on this basis alone.

C.           analysis

[32]       I would accept the Crown’s concession that the appeal should be allowed. The following reasons explain why I agree that: (a) the appellant was improperly excluded from his trial, contrary to s. 650 of the Criminal Code; and (b) this procedural irregularity cannot be saved under s. 686(1)(b)(iv).

(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), 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] 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), 32 C.C.C. (2d) 97 (Ont. C.A.), at pp. 98-99; R. v. James (2009), 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.

(2)         The Curative Proviso Does Not Apply

[42]       I agree with counsel that the violation of s. 650(1) in this case cannot be saved by s. 686(1)(b)(iv) of the Criminal Code, which provides that a court of appeal may dismiss an appeal where,

(iv)     notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of the offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby (emphasis added).

[43]       The scope of this provision has been discussed in many decisions of this court, often in relation to infringements of s. 650.

[44]       It is not disputed that the trial court had jurisdiction over the class of offence of which the appellant was convicted, an issue recently considered in R. v. Esseghaier, 2021 SCC 9, 396 C.C.C. (3d) 326. The only aspect of s. 686(1)(b)(iv) at issue in this appeal is whether the appellant suffered “prejudice” by virtue of the s. 650 breach.

[45]       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”: Burnett, at para. 64; R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 33. In accordance with the Crown’s concession, I would rest my decision on the second prong – prejudice to the appearance of the due administration of justice.

[46]       In Simon, at para. 123, Watt J.A. developed a useful framework for evaluating the impact of a s. 650 violation under s. 686(1)(b)(iv):

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.

This framework was applied in Schofield, at paras. 25-32, and R. v. D.Q., 2021 ONCA 827, 411 C.C.C. (3d) 292, at paras. 27-34.

[47]       I agree with the Crown that almost all of the Simon factors favour the appellant. The trial judge intentionally excluded the appellant from an important part of his trial by inviting counsel into his chambers. The presence of amicus curiae and s. 486.3 counsel did not mitigate the scenario because they were not able to represent the interests of the appellant. Nothing of what transpired in chambers was referred to on the record, nor was the appellant advised of what happened. The discussions in chambers were substantive in nature. As LaForme J.A. said in Poulos, at para. 12: “In a judge-alone criminal trial, such a conversation will always prejudice the fair trial interests of the accused.”

[48]       It may be that the situation could have been sufficiently mitigated had amicus curiae advised the appellant – in real time – about these meetings. Similarly, repeating what had happened on the record may have gone some distance to undoing the damage. But neither happened in this case.

[49]       The only Simon factor that might favour the Crown (or be neutral) is whether what happened had any impact on the conduct of the defence. On the one hand, the record establishes that the appellant had long wished to plead guilty, but only if he could avoid a conviction for incest. The first inkling of this objective is found in defence counsel’s ill-fated email to the trial judge.

[50]       On appeal, the appellant disputes that he told trial counsel that he wished to plead guilty. However, the appellant’s responses during the plea comprehension inquiry tend to confirm trial counsel’s communication. As noted above, at para. 27, when asked by the trial judge whether his decision was voluntary, the appellant indicated that he wished to resolve the case in the proposed manner “Long ago; long ago” or a “long time ago.”

[51]       Consequently, on one view of the record, by pleading guilty, the appellant achieved exactly what he had wanted in the first place – a resolution that did not involve an admission nor a finding that he penetrated either of his daughters.

[52]       On the other hand, had the appellant been apprised of the trial judge’s comments about the quality of V.M.’s evidence on the incest count, it may have impacted on his decision to plead guilty to the other two counts relating to V.M. Moreover, as noted above, this all happened before the cross-examination of M.M. had been completed. The trial judge’s comments may have impacted on the appellant’s decision to plead guilty to the counts relating to M.M.

[53]       In the end, it is not necessary to decide whether this factor pulls in favour of the Crown because, in combination, the rest of the Simon factors overwhelmingly favour the appellant.

[54]       Section 686(1)(b)(iv) cannot salvage what happened in this case.

D.           Conclusion and disposition

[55]       It is more than unfortunate that a new trial must be ordered in this case. A long period has elapsed since trial. Significant resources went into conducting the dangerous offender hearing. The impact on the appellant, the complainants, and others will be dramatic. But the damage to the appearance of the administration of justice cannot be excused; it can only be remedied by setting aside the appellant’s convictions. Consequently, I would allow the appeal and order a new trial on the two counts of sexual assault.[1]

[56]       I wish to acknowledge the invaluable assistance provided to the court by amicus curiae, Mr. Stein. Equally, Ms. Lai has shown great skill and fairness in discharging her duties as Crown Counsel.

Released: November 9, 2022 “G.T.T.”

“G.T. Trotter J.A.”

“I agree. Thorburn J.A.”

“I agree. L. Favreau J.A.”