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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
DATE: 20211122 DOCKET: C68138
MacPherson, Simmons and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
D.Q. Appellant
Counsel: Andrew Furgiuele, for the appellant Frank Au, for the respondent
Heard: November 1, 2021 by video conference
On appeal from the convictions entered on November 20, 2019 by Justice Robert B. Reid of the Superior Court of Justice.
A. Introduction
1The appellant was convicted of several sexual offences. At his trial, the appellant testified. During his testimony, the Crown proposed to ask him questions about prior sexual activity. Defence counsel objected. The Crown suggested that the appellant should be excluded from the courtroom while the objection was being discussed. The trial judge agreed. Defence counsel did not object. The trial judge ordered the appellant to leave the courtroom. After very brief submissions (probably a minute at most), the trial judge made a brief ruling (one paragraph) prohibiting the proposed line of questions. The trial continued.
2The parties agree that the exclusion of the appellant during a portion of his trial was a clear violation of s. 650(1) of the Criminal Code which provides, in relevant parts, “an accused … shall be present in court during the whole of his or her trial.”
3The respondent Crown seeks to save the conviction on the basis of the proviso in s. 686(1)(b)(iv) of the Criminal Code. The appellant resists this argument on the merits. In the alternative, the appellant contends that this should not be considered under the proviso rubric; rather, relying on a fairly recent decision of the New Brunswick Court of Appeal, the appellant contends that the proper analytical framework for this and similar cases should be a combination of sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms.
B. Facts
(1) The parties and events
4The appellant was charged with one count each of sexual assault, sexual interference, and invitation to sexual touching. The appellant was in high school at the time of the alleged incidents and was around 16 or 17 years old. The complainant was about 10 to 12 years old at the same time.
5The appellant was a babysitter for the complainant and his younger brother at the time of the incidents. The evidence was that the younger brother was asleep during the incidents and no one else was at home.
6The complainant’s testimony at trial was that the appellant told him about a “game of truth or dare” that he played with some of his teenage friends. The appellant used this game as a basis for suggesting to the complainant that they engage in various sexual activities. According to the complainant, sexual activities included the complainant stroking the appellant’s erect penis and putting his mouth on it. The complainant also testified that the appellant would perform oral sex on him. These activities took place in several locations throughout the house, including a living room chair, the basement, a bathtub, and the complainant's bedroom.
7The complainant testified that the appellant was never violent or abusive; he was simply a nice and pleasant guy. The complainant felt he had no choice but to participate. Aside from mentioning one incident to the appellant’s brother, the complainant did not tell anyone about the sexual incidents until 21 years later.
(2) The appellant’s exclusion from the trial
8The appellant testified at trial. He strongly denied all of the complainant’s allegations. During his cross-examination, the Crown introduced the topic of the appellant’s prior sexual history when he was a younger teenager and even pre-teen. This led to an objection by defence counsel, a request by the Crown, and a ruling by the trial judge. All of this took place in about two or three minutes and is recorded in two pages of trial transcript, which I set out as follows:
Q. Were you ever sexually active with her? [a previous elementary school girlfriend]
A. I mean, we were very young so to say sexually active, I mean, we kissed, we held hands. Very light petting.
Q. What's – what is "petting" mean?
[Defence counsel]: I don't know – I don't know how relevant all of this is, Your Honour; where my...
THE COURT: [Crown]?
[Defence counsel]: ...friend is going with this.
[Crown]: It's – well, perhaps we can ask the witness to step out.
THE COURT: All right.
[Defence counsel]: Well, these.....
THE COURT: [D.Q.], perhaps you can just step outside the courtroom. Don’t go far away.
A. Okay.
THE COURT: We'll have a discussion and we'll get you back in.
...WITNESS IS EXCUSED
[Crown]: Your Honour, I think [D.Q.]’s sexual history, particularly as a young child, a teen, preteen, a teenager, is relevant to whether or not he would be sexually active at 17 – at 18 years old, for instance, when these allegations were made. So I just want to know if he is – was sexually active throughout his younger years. The allegations are that he was having oral sex and masturbating the complainant. I think it's relevant to know when he became sexual active. And if he was, when he was babysitting or during the time period he was babysitting the – the complainant.
[Defence counsel]: Does my friend suggest if he was an active sexual teenage boy, that he's more likely to have sexually assaulted a young boy? I mean, that – there's no connection to that. I mean, if he's a teenager where he's sexually active, does that make him more likely to have committed this offence? There's no correlation, in my respectful submission.
R U L I N G
[Trial judge] (Orally)
We have an individual, who at that age of 16 or 17, has said that he had a relationship most of his high school years and prior to that had another relationship during elementary school. When he became sexual active, it seems to me, is of very minimal, if any, relevance to this inquiry. It would not be surprising that any 16 or 17 year old boy in high school with a relationship with another individual is engaged in some form of sexual activity. I'm not suggesting intimate sexual activity. That's just the way it goes. And I think I can take judicial notice of that. When or whether that relationship existed with another person in elementary school, I think has no bearing on this inquiry.
[Crown]: Thank you, Your Honour.
[Defence counsel]: Thank you.
THE COURT: Let's have [D.Q.] back in the courtroom, please.
...WITNESS RESUMES STAND
9The appellant’s sole ground of appeal relates to the trial judge’s ruling excluding him from a portion of his trial.
C. Issues
10Although there is substantial intersection and overlap between the two issues advanced by the appellant on this appeal, I propose to address them in this order:
Did the exclusion of the appellant from a portion of his trial violate s. 650(1) of the Criminal Code and, if so, should this error be remedied by application of s. 686(1)(b)(iv) of the Criminal Code?
Did the exclusion of the appellant from a portion of his trial violate ss. 7 and 11(d) of the Charter and, if so, should this error be remedied by an application of s. 24(1) of the Charter?
D. Analysis
(1) The proviso issue
11The parties agree that s. 650(1) of the Criminal Code was breached in the appellant’s trial. The Crown should not have requested that the appellant be ordered to leave the courtroom during his own testimony. Defence counsel should have opposed this request. The trial judge should not have made the order.
12The Crown’s sole response to this state of affairs is reliance on s. 686(1)(b)(iv) of the Criminal Code which provides:
686(1) On the hearing of an appeal against a conviction … the court of appeal
(b) may dismiss the appeal where
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby ….
13The Crown’s position is that the trial judge’s order briefly excluding the appellant from his trial caused him “no prejudice”.
14Fortunately, there is a good deal of case law from the Supreme Court of Canada, this court, and other provincial appeal courts dealing with the interplay between ss. 650 and 686(1)(b)(iv) of the Criminal Code. I propose to consider some of that case law and then apply it to this appeal.
15An early leading case was the decision of this court in R. v. Hertrich (1982), 67 C.C.C. (3d) 510 (Ont. C.A.), a case involving a trial judge interviewing, without the accused being present, two jurors about two anonymous telephone calls one of them had received the day before. Martin J.A. eloquently described the underlying rationale for s. 577, the predecessor section to the present s. 650 of the Criminal Code, at para. 81:
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. … 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.
16The leading decision of the Supreme Court of Canada in this domain is R. v. Barrow, [1987] 2 S.C.R. 694, a case involving a trial judge considering claims for exemption from the jury panel in the courtroom but out of earshot of all counsel and the accused. [1] In Barrow, at para. 20, Dickson C.J. endorsed Martin J.A.’s “two important principles that underlie s. 577”, and continued, at para. 48:
It is important for the accused to see and hear the entire process by which he or she is tried so that he or she sees that the trial is fair. … The public perception of the fairness of the trial process would be damaged if potential jurors were excluded after private conversations with the judge. … Finally, the trial judge’s error in this case was of a fundamental nature and therefore the curative provisions in … the Code should not be applied.
17In Ontario, there are three leading cases dealing with the interplay between ss. 650 and 686(1)(b)(iv) of the Criminal Code.
18In R. v. Simon, 2010 ONCA 754, in a second degree murder trial, the trial judge discussed his proposed jury instructions in chambers with counsel but without the accused.
19Watt J.A. determined that the chambers discussion was part of the trial; he said, at para. 109:
To determine whether something that happened in the course of a trial was part of the “trial” for the purposes of s. 650(1) requires an examination of whether what occurred affected the “vital interests” of the accused. No one can gainsay that what was discussed here, the contents of final jury instructions, affected the vital interests of the appellant.
20Turning to the potential application of the proviso, Watt J.A. said, at paras. 118-19:
Where something takes place in the absence of the accused that is part of the “trial” for s. 650(1) purposes, it does not inevitably follow that a new trial must be ordered if the accused is convicted.
Section 686(1)(b)(iv) of the Criminal Code came into force on December 4, 1985. Its real focus seems to have been to inter the jurisprudence that regarded procedural errors that caused trial courts to lose jurisdiction as incurable, even on appeal: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 12. Its embrace includes but is not limited to the procedural irregularity caused by the absence of the accused during his or her trial.
21Watt J.A. continued by articulating a test that could be applied when considering whether the proviso should be applied in a case where s. 650 of the Criminal Code has been breached. He said, at para. 123:
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.
22In the second Ontario case, R. v. E. (F.E.), 2011 ONCA 783, the accused was excluded during the entire pre-jury charge conference in the trial judge’s chambers. He was also excluded during a brief period (about nine minutes) regarding discussions about a potential question being put to him during cross-examination.
23On the broader issue, Watt J.A. spoke bluntly and ordered a new trial. He said, at para. 52:
Final instructions to a jury in a criminal case are of the utmost importance to the person whose liberty is at stake. Those instructions explain the basis upon which the accused’s liability will be decided and his or her defence assessed. An accused is entitled to hear why some instructions are included and others are omitted from the charge – first-hand, the complete version and not a synopsis after the fact. The exclusion of an accused from the entire pre-charge conference undermines both the appearance and the reality of the due administration of justice.
24On the narrower issue, which is very similar to the issue on this appeal, the court reached a different conclusion. Watt J.A. said, at para. 44:
What happened here was that the intentional and understandable exclusion of a witness resulted in the exclusion of the appellant and a breach of s. 650(1) of the Criminal Code. This should not have occurred. An accused has the right to be present throughout the entirety of his or her trial, including during discussions pertaining to cross-examination. Nonetheless, in the circumstances of this case as I have described them, if this nine-minute exclusion stood alone, I would apply s. 686(1)(b)(iv) to the procedural irregularity and preserve the finding of guilt on the ground that the appellant suffered no prejudice from it.
25In the third Ontario case, R. v. D.B., 2012 ONCA 301, as in E. (F.E.) the accused was excluded from the courtroom during his cross-examination by the Crown while counsel made submissions about certain questions the Crown proposed to put to him. The trial judge permitted some of the questions to be asked. Later, the Crown brought the improper exclusion of the accused to the attention of the court. Defence counsel did not seek a mistrial or any other remedy.
26On appeal, the Crown conceded that the accused should not have been asked to leave the courtroom. However, the court applied the proviso. Doherty J.A. said, at para. 17, that the questions asked after the accused returned to the stand were “inconsequential to the result of the trial”. He applied E. (F.E.) and concluded, at para. 19, that “the appellant was not in any way prejudiced by his relatively brief absence from the courtroom during the trial.”
27Against this backdrop of relevant case law over an extended period, I turn to the application of the governing principles to the facts of this case. In my view, the best path forward is to apply the six factors identified by Watt J.A. in Simon.
28The first factor – whether the exclusion of the accused was inadvertent or deliberate – favours the Crown. The exclusion was surely inadvertent in the sense that all three of the trial judge, Crown counsel and defence counsel simply forgot about s. 650 of the Criminal Code. If any one of them had remembered s. 650, the exclusion of the appellant would not have happened.
29The second factor favours the Crown. Defence counsel did not object to the brief exclusion of his client during his cross-examination.
30The third factor favours the appellant. It appears that when he returned to the stand after his brief departure, nothing about the subject discussed during his absence was put on the record or reported to him.
31The fourth factor favours the appellant. The discussion in the absence of the accused related to an evidentiary matter – namely, would the Crown be allowed to ask him questions about possible sexual activity in his elementary school years.
32The fifth factor overwhelmingly favours the Crown. The accused was out of the courtroom for about two minutes. The trial judge’s ruling was 100 percent in his favour; the Crown was prohibited from asking questions of the accused in the category he proposed.
33The sixth factor also strongly favours the Crown. The very brief discussion in the courtroom in the absence of the accused and the trial judge’s ruling entirely in his favour had no effect on the conduct of the defence. Indeed, the trial judge’s ruling helped the defence.
34Stepping back and considering these factors together, I conclude that they strongly support application of the proviso in this case. In the words of the sports community, “No harm, no foul”. Or, as expressed more elegantly by Hall J.A. in a leading case dealing with the proviso in British Columbia, R. v. Bagadiong, 2013 BCCA 538, at para. 40: “a refusal to apply the curative provision in the present case would be a triumph of form over substance.”
(2) The Charter issue
35The appellant’s alternative submission is that his exclusion for a portion of his trial violates ss. 7 (“liberty … and the right not to be deprived thereof except in accordance with the principles of fundamental justice”) and 11(d) (“fair and public hearing”) of the Charter. In making this submission, the appellant relies on a decision of the New Brunswick Court of Appeal, R. v. Dedam, 2018 NBCA 52.
36In Dedam, the appellant was excluded from his trial on nine separate occasions and for a variety of reasons. As explained by Quigg J.A., at paras. 1 and 5:
[O]n no less than nine occasions Mr. Dedam was excluded from his trial.
The occasions of exclusion can be divided into four types: (1) when scheduling issues were addressed in the judge’s chambers; (2) during legal arguments; (3) once when the judge and counsel engaged in a discussion the particulars of which are unknown; and (4) during the course of Mr. Dedam’s own testimony. [Emphasis in original.]
37I note that on four of the nine occasions, the appellant was excluded from his trial while he was testifying.
38Against this backdrop, Quigg J.A. considered relevant case law relating to ss. 7 and 11(d) of the Charter and concluded, at paras. 52 and 54:
[I]n certain instances, a violation of s. 650(1) can amount to breaches of both ss. 7 and 11(d) of the Charter. The egregious nature of some of the incidents where Mr. Dedam was excluded, particularly in the course of his testifying, raises the violations of s. 650(1) to the level of Charter breaches.
In this particular case, there is no remedy short of setting aside the verdict and ordering a new trial that can correct the violations. Mr. Dedam’s repeated exclusions in the circumstances described above were egregious. It may be that, in other circumstances, a different remedy would be appropriate, but that is not the case with respect to Mr. Dedam. [Emphasis added.]
39In my view, it is not necessary to determine in this appeal whether there is a Charter route for considering the consequences of a judge’s exclusion of an accused from a portion of their trial, including, especially, during their testimony. I say this for two reasons.
40First, the remedial framework under s. 686(1)(b)(iv) of the Criminal Code is well-established and appropriate. For more than 30 years, courts from across the country, including the Supreme Court of Canada, this court, and other appellate courts, have considered the issue of a breach of s. 650 of the Criminal Code under the rubric of the proviso in s. 686 of the Code: see Barrow (1987), Simon (2010), E. (F.E.) (2011), D.B. (2012) and Bagadiong (2013). Resort to the Charter is, therefore, not necessary to fashion a remedy in appropriate cases.
41Second, I observe that in the only case that applies a Charter ss. 7, 11(d) and 24(1) analysis, Dedam, the language used to lead to a s. 24(1) result was anchored in observations such as: “The egregious nature of some of the incidents where Mr. Dedam was excluded … raises the violations of s. 650(1) to the level of Charter breaches”; “Dedam’s repeated exclusions in the circumstances described above were egregious”. Obviously, there was nothing egregious about the single brief mistake that was made during the appellant’s trial. Accordingly, it is not necessary to consider what might constitute a s. 7 or 11(d) breach and a s. 24(1) remedy in a different case.
E. Disposition
42I would dismiss the appeal.
Released: November 22, 2021 “J.C.M.” “J.C. MacPherson J.A.” “I agree. Janet Simmons J.A.” “I agree. I.V.B. Nordheimer J.A.”
1The events in Barrow took place in April 1983, which was prior to the 1985 enactment of the language in the current s. 686(1)(b)(iv) of the Criminal Code.