Her Majesty the Queen v. James [Indexed as: R. v. James]

95 O.R. (3d) 321

Court of Appeal for Ontario,

Rosenberg, Watt and G.J. Epstein JJ.A.

May 5, 2009

Criminal law -- Trial -- Presence of accused -- Trial judge adjourning for lunch during cross-examination of one complainant in sexual assault trial and inviting counsel into chambers in absence of accused and with no court reporter present -- Trial judge expressing his view that could not convict based on evidence of that complainant due to her failure to answer questions and her apparent motive to fabricate -- In fresh evidence Crown's recollection indicating that judge added that would acquit on that count if accused testified and was "somewhat" credible -- Judge asking Crown if would withdraw charge regarding that complainant due to the quality of the evidence -- Crown refusing and judge assuring Crown that he had not yet made up his mind -- Defence counsel not recalling any reference to whether accused testifying and not telling accused about this portion of judge's alleged remarks -- Defence counsel reporting conversation to accused and accused deciding not to testify -- Accused convicted -- Accused's appeal allowed on basis that trial judge violated his right under s. 650 of Code to be present during trial -- In-chambers discussion being part of trial -- Accused's ability to make full answer and defence affected -- Application of proviso in s. 686(1)(b)(iv) of Code not appropriate as meeting in chambers in absence of accused had potential to undermine confidence in administration of criminal justice -- Criminal Code, R.S.C. 1985, c. C-46, ss. 650, 686(1)(b)(iv).

The accused was charged with sexually assaulting two complainants. During the cross-examination of one of the complainants, G, the trial judge adjourned for lunch and asked counsel to join him in chambers. The accused was not present, nor was a court reporter. The trial judge indicated that he could not convict on the charge relating to G as she had failed to answer certain questions and she had an apparent motive to fabricate. He asked the Crown to consider withdrawing this count because of the quality of the evidence. According to Crown counsel, the trial judge stated that if the accused took the stand and was somewhat credible, there would likely be an acquittal. Defence counsel did not recall that remark. Defence counsel informed the accused of that conversation and they decided that nothing would be gained by the accused testifying. The accused was convicted on both counts. He appealed.

Held, the appeal should be allowed.

The trial judge breached the accused's right under s. 650 of the Criminal Code to be present at his trial. The in-chambers discussion was part of the trial. The trial judge, who in this judge-alone trial was the trier of fact, expressed his strong views as to the credibility of one of the two Crown witnesses. That this discussion affected the accused's vital interests was demonstrated by the impact it had on the course of the trial and, in particular, on the accused's decision not to testify. If Crown counsel's recollection was correct, the judge added that he would acquit on this count if the accused testified and was "somewhat credible", thus making the trial judge's comment about the witness' credibility dependent on the accused's evidence, the accused was misled by his own counsel. He acted upon erroneous information and advice because he was not present for that part of the trial. His ability to make full answer and defence was affected by what occurred in the [page322] chambers meeting. Even if the accused were not prejudiced, this was not an appropriate case for the application of s. 686(1)(b)(iv) of the Code. The procedure adopted by the trial judge was not only ill-advised, it had the potential to undermine confidence in the administration of criminal justice.

APPEAL from the conviction by Hamilton J. of the Superior Court of Justice dated December 9, 2004 for sexual assault.

Cases referred to R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 27 O.A.C. 246, 43 C.C.C. (3d) 35, 4 W.C.B. (2d) 300 (C.A.); R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, [1998] O.J. No. 3623, 165 D.L.R. (4th) 301, 112 O.A.C. 353, 128 C.C.C. (3d) 516, 18 C.R. (5th) 257, 56 C.R.R. (2d) 1, 39 W.C.B. (2d) 501 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 650 [as am.], (1) [as am.], 686(1)(b)(iv)

Michael W. Lacy, for appellant. John McInnes, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- At the conclusion of argument in this case, the court allowed the appeal, set aside the appellant's convictions and ordered a new trial. The court indicated that it would provide written reasons for this disposition. These are the reasons.

[2] While the appellant raised several grounds of appeal from his conviction on charges of sexual assault and theft by Hamilton J., this appeal can be resolved on the basis that the trial judge breached the appellant's right to be present at his trial as required by s. 650 of the Criminal Code, R.S.C. 1985, c. C-46. Since the appellant was prejudiced by this error, the convictions cannot stand. The Facts of the Offences

[3] The charges against the appellant arose out of two incidents that allegedly occurred on January 3, 2004 in an apartment building in Toronto. K.B. testified that she encountered the appellant when she was waiting for the elevator. She recognized the appellant as a friend of a friend, but she had never met him. They went to the apartment of this mutual friend. Upon discovering that their friend was not home, K.B. attempted to negotiate the purchase of narcotics from the appellant. According to K.B., the appellant forced her to perform fellatio on [page323] him and then have sexual intercourse. It is alleged that this activity took place in the stairwell of the apartment. The assault was interrupted on several occasions by the complainant's cellphone ringing and someone coming into the stairwell. The appellant abruptly stopped the sexual assault, took K.B.'s cellphone and money and ran down the stairs. K.B. chased the appellant but when she could not find him, she reported to the security office that she had been sexually assaulted.

[4] Some hours later, the appellant visited the apartment where the second complainant, C.G., was living. Numerous friends, including the appellant, visited C.G. and her roommate at this apartment and stayed overnight. C.G. testified that she was asleep on the living room couch when the appellant woke her and dragged her into the bedroom. There the appellant sexually assaulted the complainant for half an hour. While the appellant had a shower, the complainant left the apartment and called a family member and reported the assault. She stayed the night with her boyfriend and also told him about the assault. Some days later, C.G. was contacted by the police and complained to them about the sexual assault. C.G. conceded that at one time she had had a crush on the appellant. She also testified that earlier on the same day as the alleged sexual assault, she had walked in on the appellant having sexual intercourse with her cousin. The transcript indicates that, on several occasions, C.G., who seems to be somewhat intellectually challenged, took long pauses before answering questions put to her in cross- examination

[5] The appellant did not testify and did not call any evidence. Procedural Issues

[6] At the opening of the trial, the appellant applied to sever the counts relating to the two complainants. At the same time, the Crown applied to have the evidence concerning the two complainants admitted as similar fact evidence. The trial judge did not rule on the similar fact evidence issue at the time but dismissed the severance motion.

[7] Crown counsel called C.G. as her first witness. In the course of the cross-examination of C.G., the trial judge adjourned for lunch early and asked counsel to join him in his retiring room. The appellant was not present during this meeting, nor was a court reporter. As fresh evidence on appeal, the parties provided an agreed statement of facts as to what occurred during this meeting. As well, the appellant and his trial counsel, not Mr. Lacy, provided affidavits. Trial counsel was [page324] cross-examined on his affidavit; the appellant was not. I will summarize that evidence below.

[8] After the lunch break, the trial resumed. Trial counsel continued his cross-examination of C.G. Crown counsel then called K.B. and she was cross-examined. As indicated, the appellant did not call any evidence.

[9] In the course of submissions at the conclusion of the trial, the trial judge indicated that he would not use the evidence of each complainant as similar fact in relation to the other complainant. He also stated that he may have erred in dismissing the severance application. Reasons for Judgment

[10] The trial judge reviewed the evidence of the two complainants. He rejected the submission that the complainants consented and that their evidence was unreliable. In the course of his brief reasons, the trial judge mentioned on four occasions that the appellant did not testify or call any evidence. The Fresh Evidence

[11] The agreed statement of facts may be summarized as follows. In the course of C.G.'s testimony, the trial judge recessed court and directed counsel to see him in chambers. Counsel agree that the trial judge said words to the effect that he could not convict on the charge relating to C.G. because of the witness's refusal to answer questions and her apparent motive to fabricate. Crown counsel also recalls that the trial judge said he would not convict on this evidence and that "if the accused took the stand and was somewhat credible, there would likely be an acquittal". Defence counsel does not recall the remark about the appellant having to testify to secure his acquittal. Both counsel do recall the trial judge asking Crown counsel to consider withdrawing the charge because of the quality of the evidence. Crown counsel responded to the effect that there was still re-examination, as well as other evidence, and she hoped that after hearing all the evidence and considering the similar fact application the trial judge would change his mind. The trial judge stated that he had never seen anyone win a case on re-examination. At that point, Crown counsel asked the trial judge if had already decided the case; he responded that he had not and that he would keep an open mind.

[12] In his affidavit, the appellant's trial counsel stated that after the lunch break he informed his client of the contents of the chambers conversation. He also stated that with his client's consent, he cut short his cross-examination of C.G. However, it [page325] should be said that the transcript discloses that the cross-examination continued for some time and it is unclear what areas of the complainant's evidence were allegedly not explored by counsel. Trial counsel also stated the following:

My advice to my client throughout the trial after the out of court discussions with the trial judge and my client's decision not to testify was in large part based upon the comments made by the trial judge [in chambers].

[13] In his affidavit, the appellant stated that after the meeting in chambers, his counsel informed him that the trial judge had questioned why the trial was happening in the first place and stated that he could not convict on the testimony offered thus far. He also stated this:

In consultation with my lawyer, we decided that nothing would be gained from testifying in light of the comments by the Judge. Although we re-assessed that situation after the second witness testified, we remained of the belief that it was not necessary to testify because the Judge had given an indication that he could not convict. Analysis

The right to be present at trial

[14] Subject to certain exceptions that do not apply in this case, an accused is entitled to be present at his trial. This fundamental principle is set out in s. 650(1) of the Criminal Code, which provides as follows:

650(1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

[15] This court has held that not everything that occurs during the trial is part of the "trial" for the purposes of s. 650(1). The most complete discussion of this issue is by Martin J.A. in R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.). As he said, the essential reason an accused needs to be present at trial is so that the accused can hear the case made out against them and have the opportunity to answer it. This right also gives effect to the fundamental values of fairness and openness. As Martin J.A. said, at p. 537 C.C.C.:

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.

[16] Given these principles, Martin J.A. held that the accused had the right "to have direct knowledge of anything that transpires in the course of his trial which could involve his [page326] vital interests": Hertrich, at p. 539 C.C.C. Subsequent cases have adopted an expansive view of what constitutes part of the trial to vindicate these policies: see R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at p. 704 S.C.R., and R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, [1998] O.J. No. 3623 (C.A.), at p. 521 O.R.

[17] In my view, the in-chambers discussion was part of the trial. The trial judge, who in this judge-alone trial was the trier of fact, expressed his strong, if premature, views as to the credibility of one of the two Crown witnesses. That this discussion affected the appellant's vital interests is demonstrated by the impact it had on the course of the trial and, in particular, on the appellant's decision not to testify. The danger of holding such meetings where the accused does not have first-hand knowledge of the discussion and where, with the absence of the court reporter, no accurate record is kept, is manifest in the disagreement between counsel as to what was said. If Crown counsel is correct and the trial judge's view of the Crown witness's credibility depended on the accused testifying, the accused was misled by his own counsel. He acted upon erroneous information and advice because he was not present for this part of the trial. In short, the appellant's ability to make full answer and defence was affected by what occurred in the chambers meeting. Given the outcome of the trial, and the trial judge's repeated reference in his reasons to the appellant's failure to testify, the appellant could well have a justifiable sense of injustice. Application of the Proviso

[18] Section 686(1)(b)(iv) of the Criminal Code provides that 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. In R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 43 C.C.C. (3d) 35 (C.A.), at p. 51 C.C.C., Goodman J.A. held that the words "suffered no prejudice thereby" means in the context of s. 650(1), "that the exclusion of the appellant did not affect the outcome of the trial adversely to him".

[19] The statement in the appellant's affidavit that he did not testify because of what he had been told about the trial judge's comments demonstrates that his exclusion did affect the outcome of the trial adversely to him. Even if those comments were merely one factor that the appellant took into account in making his decision, he was prejudiced by the error.

[20] In Cloutier, Goodman J.A. also held that the court may refuse to apply the proviso in s. 686(1)(b)(iv), even if exclusion of the accused from the trial created no prejudice, "so that justice [page327] will not only be done but will be seen to be done": at p. 52 C.C.C. In my view, this is the kind of case where this court should exercise its discretion not to apply the proviso even if there were no prejudice. The words of this court in Laws, at p. 525 O.R., apply to what occurred here:

The perceived fairness of the criminal justice system is its most vital characteristic. Public confidence requires public scrutiny wherever possible. Private trials which exclude the accused are antithetical to this core value. Where the circumstances of the exclusion of the accused are such as to inflict significant damage on the appearance of justice, the question is not whether there is prejudice to the accused. Rather, the issue is the harm to the criminal justice system itself. In such cases the court should refuse to apply this proviso.

[21] The trial judge expressed opinions about the credibility of one of two critical Crown witnesses while she was still testifying, before he had heard all the evidence the Crown intended to call and before he had heard submissions from counsel. He appears to have commented on one of the fundamental choices an accused must make, the decision whether or not to testify. All of this took place in private when both the accused and the public were excluded. This procedure was not only ill advised, it had the potential to undermine confidence in the administration of criminal justice. Disposition

[22] As noted above, at the conclusion of oral argument, the court indicated that the appeal was allowed, the convictions set aside and a new trial ordered. Having regard to the nature of the error that led to that disposition and that the appellant has served the sentence imposed, the Crown will want to consider whether or not it would be in the interests of justice to proceed with a new trial.

Appeal allowed.