Her Majesty the Queen v. Poulos\*

[Indexed as: R. v. Poulos]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Cronk and LaForme JJ.A.

March 17, 2015

124 O.R. (3d) 675 | 2015 ONCA 182

Case Summary

Criminal law — Trial — Accused's right to be present — Trial judge initiating meeting with counsel in his chambers after complainants had testified at accused's judge-alone sexual assault trial — Accused not present — Trial judge stating that complainants were good witnesses and suggesting plea bargain — Accused's right under s. 650(1) of Criminal Code to be present during trial violated — Trial fairness compromised — Curative proviso not applying — Criminal Code, R.S.C. 1985, c. C-46, s. 650(1).

The accused was convicted on two counts of sexual assault after a judge-alone trial. At the conclusion of the complainants' testimony, the trial judge asked counsel to meet with him in chambers. He expressed a positive view of the complainants' evidence and suggested that the accused plead guilty to common assault. The accused was not present, and the matters discussed in his absence were not repeated on the record. Experienced defence counsel raised no objection to the accused's absence nor was a mistrial sought. The accused appealed and sought to adduce fresh evidence about the discussion in chambers.

Held, the appeal should be allowed.

It was in the interest of justice that the fresh evidence be received. The accused was excluded from a portion of his trial in violation of s. 650(1) of the Criminal Code. The discussion of the evidence and of a possible plea bargain affected the accused's vital interests. The trial judge undercut the presumption of innocence and compromised trial fairness. After the trial has commenced, where the judge in a judge-alone trial initiates discussions with counsel about a possible plea in the absence of the accused, trial fairness will be compromised and the curative proviso in s. 686(1) (b)(iv) of the Code cannot be applied.

R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171, consd

R. v. Schofield (2012), 109 O.R. (3d) 161, [2012] O.J. No. 777, 2012 ONCA 120, 289 O.A.C. 25, 286 C.C.C. (3d) 555, 100 W.C.B. (2d) 370, apld

Other cases referred to

R. v. Dayes (2013), 117 O.R. (3d) 324, [2013] O.J. No. 4615, 2013 ONCA 614, 310 O.A.C. 319, 301 C.C.C. (3d) 337, 6 C.R. (7th) 372, 109 W.C.B. (2d) 467; 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 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 459]; R. v. Taillefer, [2003] 3 S.C.R. 307, [2003] S.C.J. No. 75, 2003 SCC 70, 233 D.L.R. (4th) 227, 313 N.R. 1, J.E. 2004-84, 179 C.C.C. (3d) 353, 17 C.R. (6th) 57, 114 C.R.R. (2d) 60, 61 W.C.B. (2d) 432; R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383, 84 O.A.C. 241, 100 C.C.C. (3d) 225, 43 C.R. (4th) 26, 28 W.C.B. (2d) 72 (C.A.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 650 [as am.], (1) [as am.], 683(1), 686(1)(b)(iv)

APPEAL by the accused from the convictions entered on November 10, 2010 by McKinnon J. of the Superior Court of Justice, sitting without a jury.

David Humphrey, for appellant.

Amy Alyea, for respondent.

The judgment of the court was delivered by

LAFORME J.A.: —

Introduction

[1] After a two-day trial, the trial judge convicted the appellant on two counts of sexual assault. The two complainants had waitressed at the appellant's restaurant during different times. Both testified that they quit their jobs because they could not tolerate the appellant's sexual touching and sexual comments.

[2] After the Crown led evidence from the two complainants and closed its case, the trial judge asked to see counsel in his chambers and suggested a plea bargain. The appellant was not present during this discussion. The matters discussed in chambers in the appellant's absence were not repeated on the record.

[3] The appeal turns on the propriety of this judge-initiated mid-trial discussion. The appellant seeks to introduce fresh evidence to establish that the trial judge's conduct deprived him of his right to be present throughout his trial as guaranteed by s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46, which requires the presence of an accused "during the whole of his or her trial". He also argues that the mid-trial discussion, in conjunction with the trial judge's questioning of a defence witness, gives rise to a reasonable apprehension of bias.

[4] The fresh evidence consists of affidavits sworn by the appellant, the appellant's son (a civil lawyer), the trial Crown and the trial defence counsel, and a transcript of the cross-examination on each affidavit.

[5] Each of the affidavits describes the trial judge's in-chambers comments in a slightly different way, but the essence remains the same. The trial judge said that the two complainants had testified well or had been "good witnesses". He then observed that the complainants had testified to relatively minor assaults and suggested that the parties resolve the case by guilty pleas to common assault.

[6] The appellant recalls that his trial counsel reported to him after the meeting and told him that the trial judge said he was impressed with the two complainants and that the defence faced an "uphill battle". The trial judge suggested that the Crown and the defence work out a plea to common assault.

[7] When court convened for the afternoon session, the trial resumed without anyone referencing the in-chambers discussion. The defence called a number of witnesses, including several who testified to the appellant's reputation for honesty. The appellant also testified and denied the allegations. The trial judge convicted him of sexually assaulting both complainants.

Issues

[8] The appellant raises three related grounds of appeal: (i) the trial judge exhibited a reasonable apprehension of bias; (ii) the trial judge excluded the appellant from a portion of his trial contrary to s. 650(1) of the Criminal Code; and (iii) the trial judge created the appearance of prejudgment and unfairness by asking challenging questions of a defence witness.

1. The Crown's position

[9] The Crown concedes that the mid-trial in-chambers discussion fell outside the exceptions to s. 650(1). However, she argues that the evidence as a whole, including the fresh evidence, demonstrates that the appellant did not suffer prejudice and that the mid-trial conference did not create a reasonable apprehension of bias. Therefore, the curative proviso at s. 686(1)(b)(iv) of the Criminal Code should apply. She offers a number of points in support.

[10] First, the in-chambers discussion was brief and neither experienced defence counsel nor anyone else adverted to the appellant's absence. Second, defence counsel immediately apprised the appellant of the discussion. Third, defence counsel did not apply for a mistrial nor did he discuss that possibility with the appellant. In his view, there were no grounds for a mistrial. Fourth, by his comments in the meeting, the trial judge does not appear to have made up his mind about the outcome of the trial. Fifth, the appellant did not modify his behaviour as a result of the in-chambers meeting -- he always intended to and in fact did plead not guilty, testify and call evidence.

[11] In sum, the Crown argues, the mid-trial discussion had no apparent or actual effect on trial fairness.

[12] I disagree with the Crown and would allow the appeal. The appellant was excluded from a portion of his trial in violation of s. 650(1). At the close of the Crown's case, the trial judge initiated a mid-trial conversation about the resolution of the trial in the absence of the appellant. In a judge-alone criminal trial, such a conversation will always prejudice the fair trial interests of the accused. Therefore, the curative proviso does not apply.

2. The fresh evidence

[13] Before addressing the merits of the appeal, I propose to speak to the appellant's fresh evidence application. In support of his application, the appellant relies on the well-known test for admission of fresh evidence set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, at p. 775 S.C.R. Palmer requires that the evidence (i) could not, through the exercise of due diligence, have been adduced at trial; (ii) must be relevant in that it bears on a decisive or potentially decisive issue; (iii) must be reasonably capable of belief; and (iv) must be such that, if believed, it could reasonably be expected to have affected the result at trial.

[14] The Palmer criteria speak to new evidence tendered in relation to a factual or legal issue at trial. The Palmer criteria do not apply where, as here, a party submits fresh evidence to attack the validity of the trial process. In such a case, the court will admit the fresh evidence as long as it complies with the normal rules of evidence: see R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383 (C.A.), at pp. 169-70 O.R.; see, also, R. v. Taillefer, [2003] 3 S.C.R. 307, [2003] S.C.J. No. 75, 2003 SCC 70, at paras. 76-77.

[15] As my colleague, Doherty J.A., noted in W. (W.), at pp. 169-70 O.R., this court's authority to receive evidence on appeal resides in s. 683(1) of the Criminal Code, which provides that the court may receive evidence on appeal where it is "in the interests of justice" to do so. The "interests of justice" in this case require that the court admit the affidavits and the cross-examinations on those affidavits to determine whether the mid-trial in-chambers discussion in the absence of the appellant violated s. 650 and prejudiced the appellant's right to a fair trial.

[16] I will now turn to the merits of the appeal.

Analysis

[17] On the facts of this case, the appellant was denied his right to "be present in court during the whole of his . . . trial". The Crown quite appropriately concedes the s. 650(1) breach, but argues that the curative proviso should save the verdict.

[18] Not every in-chambers discussion will constitute part of the accused's "trial". The classification of an in-chambers discussion as part of the trial 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": R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, at para. 116, leave to appeal S.C.C. refused [2010] S.C.C.A. No. 459.

[19] In this case, the discussion of the evidence and of a possible plea bargain involved or affected the vital interests of the appellant. This inevitably arose once the trial judge expressed a view about the complainants' testimony and proposed that the accused enter a guilty plea, although to a lesser and included offence.

[20] This court has warned that "the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the [accused's] presence, in open court, and on the record": R. v. Dayes (2013), 117 O.R. (3d) 324, [2013] O.J. No. 4615, 2013 ONCA 614, at para. 68. Such a practice would avoid the time-consuming and occasionally discomforting inquiry into whether this court can salvage a verdict tainted by a s. 650(1) violation through resort to the curative proviso.

[21] In spite of the cautions, however, in-chambers discussions without the accused continue to take place. Some of those discussions, as here, canvas ways and means of resolving the trial. For the following reasons, such discussions constitute an error of law for which the appropriate remedy is a new trial. That is to say, where a trial judge in a criminal judge-alone trial initiates discussions with counsel after the commencement of the trial about the possibility of a resolution -- in other words, a plea bargain -- in the absence of the accused, trial fairness will be compromised such that the curative proviso will not salvage the verdict.

The s. 650(1) breach and the curative proviso

[22] This case is very similar to R. v. Schofield (2012), 109 O.R. (3d) 161, [2012] O.J. No. 777, 2012 ONCA 120, where this court made it abundantly clear that a breach of s. 650(1), in circumstances such as those on this appeal, is fatal to trial fairness.

[23] MacPherson J.A., writing for the court, observed that an in-chambers discussion with counsel about a possible plea clearly affected the appellant's vital interests and triggered his right to be present under s. 650 of the Criminal Code. He further held that the absence of the accused during those discussions, that were vital to his interests, undermined the fairness and openness of the trial.

[24] I agree with my colleague's analysis. An accused is entitled to have first-hand knowledge of matters vital to his interests as they unfold at trial so that he can properly seek and receive legal advice and otherwise properly exercise his right to make full answer and defence. Furthermore the accused's presence, when matters vital to his interests are being discussed, brings a transparency and appearance of fairness to those proceedings that would otherwise be lacking.

[25] In my view, Schofield has direct application here. Just as in Schofield, the in-chambers discussions in the absence of the accused violated s. 650. And, just as in Schofield, the Crown cannot demonstrate that the violation of s. 650 did not prejudice the appellant.

Conclusion

[26] In this case, the trial judge, after hearing the testimony of two Crown witnesses, initiated a mid-trial discussion in the absence of the accused about a possible plea bargain. The discussion was a manifest breach of s. 650(1). Though he acted with the best of intentions, the trial judge undercut the presumption of innocence and compromised trial fairness. In such circumstances, I would not apply the curative proviso under s. 686(1)(b)(iv).

Disposition

[27] For the above reasons, I would admit the fresh evidence and allow the appeal. I would set aside the convictions and order a new trial.

Appeal allowed.

* Vous trouverez la traduction française à la p. 681, post.

End of Document