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

109 O.R. (3d) 161

2012 ONCA 120

Court of Appeal for Ontario,

O'Connor A.C.J.O., MacPherson and Rouleau JJ.A.

February 22, 2012

Criminal law -- Trial -- Accused's right to be present -- Trial judge meeting with counsel in his chambers mid-trial in absence of accused -- Trial judge making negative comments about accused's testimony and urging counsel to try to resolve case -- Accused's right under s. 650(1) of Criminal Code to be present during whole of his trial being violated -- Accused deliberately excluded, discussion in chambers not repeated on record and defence counsel taking no position regarding accused's presence in chambers -- In-chambers discussion affecting vital interests of accused -- Appearance of judicial impartiality compromised -- Even had accused been present comments on accused's credibility mid-trial having profound effect on apparent fairness of trial proceedings especially in judge-alone trial -- Application of proviso in s. 686(1)(b)(iv) of Code not appropriate -- Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1), 686(1)(b)(iv).

The accused was charged with four counts of indecent assault. After the accused had testified at trial, the trial judge convened a conference in his chambers. Both counsel were present, but the accused was not. The trial judge expressed his opinion about the weaknesses of the accused's testimony and some problems with the Crown's case and urged counsel to try to resolve the case. Although the discussion in chambers was not repeated in open court, in the accused's presence, he was told the substance of the remarks by defence counsel. The accused rejected the Crown's offer to plead guilty to three of the four counts and the trial resumed. The trial judge convicted the accused on two counts and acquitted him on two counts. The accused appealed.

Held, the appeal should be allowed.

The accused's right under s. 650(1) of the Criminal Code to be present during the whole of his trial was violated. Not every in-chambers discussion in the absence of the accused is prohibited. The test in each case is whether the context and contents of the in-chambers discussions involve the accused's vital interests. In this case, the in-chambers discussion about possible resolution affected the vital interests of the accused. There was a second, and equally serious, problem with the in-chambers conference. Even had the accused been present when the trial judge made negative comments about the accused's testimony, these comments seriously compromised the trial judge's impartiality, particularly since this was a judge-alone trial.

The Crown conceded the s. 650(1) error and that the discussion affected the vital interests of the accused but argued that this was an appropriate case for the application of the proviso in s. 686(1)(b)(iv) of the Code. The exclusion of the accused was deliberate. Defence counsel did not initiate the exclusion of his client, nor did he concur in the exclusion. The subjects discussed in chambers were not repeated on the record, although they were reported to the accused by defence counsel. The discussions involved very important substantive matters. The in-chambers discussion had a profound effect on the apparent fairness of the trial proceeding. The appearance of judicial impartiality was compromised. This [page162] was not an appropriate case for the application of the proviso. The convictions should be set aside and a new trial ordered.

APPEAL by the accused from the conviction entered by Sosna J. of the Superior Court of Justice dated May 22, 2009.

Cases referred to R. v. Barrow, 1987 CanLII 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. E. (F.E.) (2011), 108 O.R. (3d) 337, [2011] O.J. No. 5738, 2011 ONCA 783, 286 O.A.C. 109 (C.A.); R. v. Hertrich, 1982 CanLII 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. James (2009), 95 O.R. (3d) 321, [2009] O.J. No. 1803, 2009 ONCA 366, 244 C.C.C. (3d) 330, 248 O.A.C. 350 (C.A.); R. v. Roy, 1976 CanLII 1396 (ON CA), [1976] O.J. No. 912, 32 C.C.C. (2d) 97, 1 W.C.B. 13 (C.A.); R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 269 O.A.C. 359, 263 C.C.C. (3d) 59 (C.A.); R. v. Walker, [2010] S.J. No. 366, 2010 SKCA 84, [2010] 9 W.W.R. 1, 77 C.R. (6th) 331, 362 Sask. R. 169, 258 C.C.C. (3d) 36 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1) [as am.], 686(1)(b)(iv)

Brian H. Greenspan and Jill D. Makepeace, for appellant. Elise Nakelsky, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] In 2008, the appellant was charged with four counts of indecent assault. The Crown's position was that the appellant had sexually abused four young girls who had lived in his neighbourhood in the Oshawa area in the early 1970s. Following a 12-day judge-alone trial, the appellant was convicted on two charges and acquitted on two other charges. The trial judge imposed a sentence of 3 [cents] years' imprisonment.

[2] At the appeal hearing, the appellant's principal ground of appeal was that the trial judge had convened a mid-trial conference in his chambers involving himself and both counsel. The trial judge expressed his opinion about both the weakness of the appellant's testimony and some problems with the Crown case and urged counsel to try to resolve the case.

[3] The appellant was not present at this in-chambers conference. The appellant contends that this violated s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46, which provides that "an accused . . . shall be present in court during the whole of his or her trial". [page163]

[4] The Crown concedes that, given the contents of the discussion in the in-chambers conference, s. 650(1) of the Criminal Code was violated. However, the Crown contends that this is a proper case for the application of the proviso in s. 686(1)(b)(iv) of the Criminal Code to preserve the verdict.

[5] If the appellant was successful on this ground of appeal, the remedy would be an order for a new trial. However, the appellant also submits that the trial judge's conviction with respect to two complainants was an unreasonable verdict. If successful on this ground of appeal, the remedy would be an acquittal.

[6] At the conclusion of the oral argument at the appeal hearing, the court announced that the appeal would be allowed on the s. 650(1) issue, that the proviso would not be applied and that the unreasonable verdict ground of appeal failed. Accordingly, the court would order a new trial.

[7] The court indicated that reasons in support of these conclusions would follow shortly. These are the reasons.

B. Discussion

(1) The s. 650(1) issue

(a) Facts

[8] After the conclusion of the Crown case, including the testimony of the four complainants, the appellant chose to testify. As soon as he finished his testimony, his wife testified. After her testimony, the court rose for the lunch break.

[9] During the lunch break, the trial judge summoned both counsel to his chambers. The appellant did not attend.

[10] Both trial counsel were very experienced counsel. The Crown counsel, Paul Murray, had 17 years' experience; defence counsel, Alan Risen, had 34 years' experience.

[11] The chambers discussion was not recorded. Nor did anyone, judge or counsel, refer to it after court resumed in the afternoon. However, both counsel provided affidavits for the purpose of the appellant's fresh evidence application on the appeal and both were cross-examined on their affidavits. The result is a fairly clear and uncontentious description of the purpose and contents of the in-chambers conference initiated by the trial judge.

[12] In his affidavit, Mr. Risen states:

6. In the privacy of his chambers, the trial Judge initiated a discussion in which he encouraged me to resolve the case. Although I cannot remember the exact words that he used, the message which the trial Judge conveyed was unequivocal; that this was the last opportunity for the Applicant/Appellant to resolve the case, and to minimize the potential sentence [page164] that he would face if he were convicted at the conclusion of the trial. I clearly recall the trial Judge commenting that the Applicant/Appellant "didn't do too well in cross-examination", or words to that effect. In response, I advised the Judge that several defence witnesses would be called, who would confirm essential aspects of the Applicant/ Appellant's evidence and contradict the evidence of the complainants. I also pointed out that there were serious contradictions and inconsistencies in the evidence of the complainants. Notwithstanding my comments, I was left with the understanding that the trial Judge was strongly suggesting that the defence case had been seriously undermined by the poor performance of the Applicant/Appellant in the witness stand.

7. The trial Judge then indicated to the Crown that there were also some problems with the Crown's case. This appeared to me to be an attempt by the Judge to encourage the Crown to engage in resolution discussions with the defence.

8. The issue of sentence was not discussed and the trial Judge offered counsel the opportunity to speak to another jurist about a possible resolution. He advised that Justice Shaughnessy was free to discuss the matter. In light of subsequent instructions which I received from the Applicant/ Appellant, this was not pursued. The sole purpose of the trial Judge initiating the attendance of counsel in chambers was to encourage resolution. No other issues were raised by the trial Judge at this time.

[13] After the in-chambers conference, which lasted about five to ten minutes, counsel had a discussion outside chambers. Mr. Risen told Mr. Murray that he was uncomfortable with the meeting with the judge and felt that it put him in a very difficult position with his client who had just testified and had always maintained his innocence. Mr. Murray responded with an offer of a recommended conditional sentence if the accused pleaded guilty to three of the four offences. Mr. Risen discussed this option with his client and wife. The accused rejected the offer and the trial continued that afternoon with more defence witnesses.

(b) The law

[14] In its factum, the Crown says this:

The respondent concedes that the appellant should not have been excluded from the in-chambers discussion. Any conversation ought to have taken place in the appellant's presence, in open court, and on the record.

[15] In my view, this is an appropriate concession that flows naturally from the leading cases interpreting s. 650(1) of the Criminal Code.

[16] The leading case in this area is the decision of this court 30 years ago in R. v. Hertrich, 1982 CanLII 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400 (C.A.). In that case, Martin J.A. discussed the rationale for a predecessor to the current s. 650(1), at p. 426 D.L.R.:

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 [page165] 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. In R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 706-707 S.C.R., Dickson C.J.C. cited and specifically endorsed this passage from Hertrich.

[17] In several major cases, appellate courts have held that the openness principle set out in Hertrich requires the presence of the accused at discussions held in a judge's chambers: see, for example, R. v. James (2009), 95 O.R. (3d) 321, [2009] O.J. No. 1803, 2009 ONCA 366 (C.A.); R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754 (C.A.); R. v. E. (F.E.) (2011), 108 O.R. (3d) 337, [2011] O.J. No. 5738, 2011 ONCA 783, 286 O.A.C. 109 (C.A.); R. v. Walker, [2010] S.J. No. 366, 2010 SKCA 84, 258 C.C.C. (3d) 36 (C.A.).

[18] Not every in-chambers discussion is prohibited, "especially if the discussion is of a preliminary nature, does not involve any final determination and is recounted in open court in the presence of the accused": see Simon, at para. 117. The test in each case is whether the context and contents of the in-chambers discussions "involve [the accused's] vital interests": see Hertrich, at p. 428 D.L.R.

[19] In this case, the Crown concedes, properly in my view, that the in-chambers discussion about possible resolution affected the vital interests of the accused. It could hardly be otherwise, given the trial judge's explicit comments about his impressions of the accused's own testimony.

[20] Before leaving this issue, I want to make one other observation. The first problem with the in-chambers conference in this case is the one I have just discussed: because of s. 650(1), it needed to take place in the presence of the accused.

[21] In my view, there is a second, and equally serious, problem with the in-chambers conference. That problem is the actual contents of the discussion and, in particular, the trial judge's negative comments about the appellant's just-finished testimony. Those comments, even if they had been made in the presence of the appellant, seriously compromised the trial judge's impartiality, particularly since this was a judge-alone trial. [page166]

[22] An almost identical situation arose many years ago in R. v. Roy, 1976 CanLII 1396 (ON CA), [1976] O.J. No. 912, 32 C.C.C. (2d) 97 (C.A.). In mid- trial, a trial judge called counsel into his chambers, made comments about the evidence and encouraged counsel to consider a plea resolution. No resolution was achieved, the trial continued and the accused was convicted.

[23] On appeal, this court set aside the conviction and ordered a new trial. In reasoning that stands the test of time and, in my view, is apposite to this appeal, Brooke J.A. said, at pp. 98-99 C.C.C.:

A judge conducting a trial without the intervention of a jury is of course the trier of fact and determines the question of guilt or innocence. In my opinion he cannot initiate such a discussion after entering upon the trial and hearing evidence and still preserve the appearance of impartiality and being of an open mind, which qualities are so essential to a fair trial and the meaning of the presumption of innocence. The fact that he initiates such a discussion and sends counsel to the accused with talk of pleas of guilty and terms of sentence could reasonably result in apprehension by the accused that the judge presiding at his trial had reached some conclusions about the case. It does not hurt to repeat again that justice must appear to be done. This is not limited simply to what is seen from the floor of the courtroom or by the public but includes what transpired here. It is also vital that justice must appear to be done, to the accused man in particular. In those circumstances we think the trial lacked this quality and therefore it cannot stand.

(c) The proviso

[24] The Crown contends that the proviso in s. 686(1)(b)(iv) of the Criminal Code should be applied in this case because the appellant has failed to demonstrate any prejudice flowing from his absence at the in-chambers discussion, either in terms of his ability to properly defend himself and receive a fair trial or the broader sense of prejudice to the appearance of justice.

[25] The test for the application of the proviso was enunciated by Watt J.A. in Simon, 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; [page167] 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.

[26] The exclusion of the appellant from the in-chamber discussion was deliberate; the trial judge invited only counsel to the meeting.

[27] Defence counsel did not initiate the exclusion of his client, nor did he concur in the exclusion.

[28] The subjects discussed in-chambers in the absence of the accused were not repeated on the record; however, they were reported to the accused by his counsel.

[29] The discussions involved very important substantive matters, including the trial judge's stated impressions of the accused's testimony.

[30] In my view, the in-chambers discussion had a profound effect on the apparent fairness of the trial proceedings. On this point, I adopt what Richards J.A. said in Walker, at para. 36:

In my view, this is the sort of situation where larger concerns about the administration of justice operate to render s. 686(1)(b)(iv) inapplicable. The trial judge in this case no doubt acted innocently and there is no suggestion that she was biased or impartial in fact. However, this is not the point. The perception of fairness and impartiality is an essential characteristic of the criminal justice system and it must be guarded rigorously. The decision to provide counsel with an assessment of the case and inquire about the state of plea bargaining necessarily worked to significantly undercut the important notion that justice must not only be done, but must be seen to be done. The judge was presiding over a criminal trial. It was critical that she be perceived as being wholly impartial and as not having prejudged the outcome of the proceedings.

[31] On the final factor, there is no suggestion that the in- chambers discussion had any effect on decisions about the conduct of the defence. The trial continued and the defence called the rest of its witnesses.

[32] Taking these factors together, in my view, they tell strongly in favour of the appellant. He was excluded from an in-chambers conference where the trial judge explicitly discussed his testimony. Moreover, the trial judge's commentary about his testimony was negative. The result is that the appearance of judicial impartiality was compromised. Accordingly, the proviso in s. 686(1)(b)(iv) should not be applied. [page168]

(2) The unreasonable verdict issue

[33] It is necessary to address this issue because the result of the appellant's success on the first ground of appeal is an order for a new trial. If the appellant is successful on its unreasonable verdict ground of appeal, the result would be an acquittal.

[34] The appellant submits that the trial judge ignored vital defence evidence provided by witnesses other than the appellant that contradicted material aspects of the Crown case, erred by repeatedly ignoring or forgiving internal inconsistencies in the evidence of the Crown witnesses, and did not recognize that certain aspects of the complainants' allegations were highly improbable and warranted consideration by the trial judge as to their credibility and reliability.

[35] I do not accept this submission. This was a difficult trial. It involved events that took place about 35 years before the trial and related to alleged sexual activity involving very young girls. In my view, the trial judge was acutely aware of the difficulties of proof in such a case. His reasons are comprehensive and balanced and support the conclusions he reached. Indeed, on the record before him, the two acquittals and two convictions are entirely reasonable. Accordingly, I would dismiss this ground of appeal.

C. Disposition

[36] I would grant the appellant's application to admit the fresh evidence relating to the in-chambers conference, allow the appeal, set aside the convictions and order a new trial.

Appeal allowed.