WARNING THIS APPEAL IS SUBJECT TO a publication ban issued January 10, 2020 by Justice Gregory M. Mulligan, prohibiting the publication of any information that could identify the appellant’s former common law spouse.

COURT OF APPEAL FOR ONTARIO

DATE: 20230921 DOCKET: C67946

Huscroft, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.C. Appellant

Counsel: Lindsay Board, Colleen McKeown, and Julia Kirby, for the appellant Katie Doherty, for the respondent

Heard: July 12, 2023

On appeal from the conviction entered on January 15, 2020, and the sentence imposed on December 15, 2020, by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

OVERVIEW

[1] M. C. appeals his conviction after a jury trial on a charge of child luring, contrary to s. 172.1(2) of the Criminal Code, R.S.C. 1985, c. C-46, and he seeks leave to appeal the sentence imposed. The child luring charge arose from communications M.C. admittedly had with a police officer while the police officer was posing as a 14‑year‑old female.

[2] This appeal challenges a ruling by the judge in his capacity as a case management judge, appointed pursuant to s. 551.1 of the Criminal Code, exercising the powers of a trial judge, pursuant to s. 551.2 of the Criminal Code. The same judge was subsequently appointed as the trial judge. This appeal also raises alleged errors made by the judge in that capacity. For convenience, I will refer to the judge throughout as “the trial judge”.

[3] M.C. argues that the trial judge erred contrary to s. 650 of the Criminal Code in excluding him from his trial when the trial judge received ex parte submissions from a third-party records holder during a s. 278 application that he had brought in aid of his defence (the “s. 650 error”). He also argues that the trial judge misdirected jurors by not relating the evidence to his defence submissions, and he seeks leave to argue that the trial judge committed errors of principle in sentencing him to 20-months’ imprisonment and a 2-year probation term, with ancillary orders.

[4] For the reasons that follow, I would allow his appeal of the s. 650 error. On that basis I would set aside his conviction and order a new trial. It is unnecessary to consider the remaining grounds of appeal, and I will not address them further.

THE MATERIAL FACTS AND THE STATUTORY CONTEXT

[5] On January 18, 2018, M.C. responded to a Backpage.com ad for sexual services in York Region that was posted as part of Project Raphael, an undercover investigation intended to reduce the demand for underage prostitution. A police officer, posing as a 14-year-old female (the “subject”) responded to inquiries with electronic messages.

[6] Although the ad represented the subject to be 18, and photographs of the body of a female police officer were included in the ad to depict her, the ad was designed to be alluring to those interested in sex with young females. The subject was described as young, inexperienced, and fresh to the industry, and the photographs of the female police officer depicted her wearing a high school logo.

[7] M.C. texted the advertised number. In the exchanges that followed he was told directly that the subject was “younger than 18”, and then twice that “she” was 14 years old, and he communicated on each occasion that he was fine with that. Further details intended to reinforce the subject’s youth were communicated, ostensibly by “her”. Specifically, “she” told him that she had an impending examination and asked M.C. to bring condoms, a bottle of vodka, and Belmont cigarettes to their proposed meeting. Both the bottle of vodka and Belmont cigarettes are objects that a 14-year-old girl would not be permitted to purchase.

[8] On January 26, 2018, after agreement was expressed to engage in sexual services through a “car call”, M.C. travelled to the area of the designated location at the agreed time. He purchased the Belmont cigarettes nearby at a location that was messaged to him. The purchase of the cigarettes was witnessed by an undercover officer. M.C. was then arrested. A box of condoms was discovered in his vehicle, as well as sufficient cash money to pay the agreed price. Much of the money he was carrying was discovered in his wallet, which was hidden between the seat and console in the vehicle.

[9] M.C. sought to defend himself during the evidentiary phase of the trial by claiming that he did not believe the subject was under 18-years of age. He acknowledged being an experienced user of escort services and testified that based on suspicious features of the ad and the exchanges that occurred, he believed that the ad was likely posted by persons intending to rob or rip off patrons, or possibly an ad posted by police officers. He said he intended to investigate with the intention of exposing the scam or reporting any under-age sex worker he may encounter. He related personal experiences that he claimed reinforced his opposition to child sex work.

[10] In order to support this defence, M.C. presented evidence in an effort to confirm his history of: (1) sending reports to “abuse@backpage.com”, (2) posting “warning ads”, and (3) submitting tips to Crime Stoppers about scams and suspected underage prostitution. This evidence did not unequivocally support his claim that these communications were intended, in part, to protect underage sex workers.

[11] Although the abuse@backpage.com reports were sent on backpage.com documents bearing the subject line, “Child Exploitation Report”, the eight reports M.C. sent included internet addresses without describing the nature of his concern about those addresses.

[12] With respect to the twelve “warning ads” he placed in Backpage.com, those ads warned other Backpage.com users of “scams” and “robbers” posing as sex workers.

[13] As for the three Crime Stoppers documents he produced, those documents confirmed that M.C. had provided Crime Stopper tips but did not disclose the nature of those tips. The tendered documents depicted internet responses from Crime Stoppers confirming that he had submitted unidentified Crime Stopper tips. Two of those three documents, filed as exhibits 16B (October 17, 2015), and 16C (October 19, 2016), were screenshots of the Crime Stoppers tip confirmation documents. The third such document, filed as exhibit 16A (November 17, 2012), may have been a picture of the phone displaying the Crime Stoppers confirmation, instead of a screenshot.

[14] The Crown challenged the credibility of M.C.’s defence, including by suggesting during lengthy and repetitive cross-examination that the documentation he produced confirmed that his only concern was with rip-offs and scams and had nothing to do with underage prostitution. The Crown pointed out during the cross‑examination that M.C. did not have emails or screen captures of the Crime Stoppers reports he made. The cross-examination included focused questioning, in this regard, that challenged M.C.’s account by having him admit that he did not have documentation related to Crime Stopper tip exhibit 16A showing what the November 17, 2012 tip was actually about. The Crown asked, “[d]o you have a copy of anything like an email that, like an email that you sent or anything that would show what the Crime Stopper tip was about?” The purport of this questioning was clear – an unsupported claim by M.C. could not be believed.

[15] On two occasions while being cross-examined, M.C. responded by claiming that Crime Stoppers refused to provide requested details of his complaints, but the trial judge directed the jury to disregard this evidence as hearsay.

[16] In closing submissions, the Crown said:

I am going to suggest that the evidence is clear that the only reason he made any type of report is not because he was concerned about a child being exploited, but because he either got robbed or ripped off.

[17] Prior to the evidentiary phase of the trial beginning, M.C.’s counsel had clearly anticipated that M.C.’s account was going to be challenged in this way. He therefore brought a third-party records application, pursuant to s. 278.3 of the Criminal Code.

[18] In a s. 278.3 third-party records application, the third-party records holder and the person affected by the record (if any), are parties to the application. Section 278.3(5) requires that they must receive notice of, and be served with, the application, and s. 278.4(2) provides them with the right to appear and make submissions at the hearing and it removes their compellability as witnesses. Crime Stoppers, the third-party records holder, was served and counsel appeared on its behalf and participated fully in the application as a party.

[19] In that application, M.C. sought an order requiring Crime Stoppers to produce documentation in its possession relating to the October 17, 2015 Crime Stoppers tip, and the October 19, 2016 Crime Stoppers tip, but not what was done with those tips. It is evident from his submissions during the third-party records application that M.C.’s counsel confined the application to the two October Crime Stoppers tips because these were the only tips he could demonstrate with supporting documentation, and s. 278.3(3)(a) requires an applicant to provide “particulars identifying the record that the accused seeks to have produced”. It was not until after the application judge’s ruling that the defence discovered electronic messages confirming the November 17, 2012 Crime Stoppers tip.

[20] Both M.C. and the Crown consented explicitly to waive informer privilege for the purposes of the application.

[21] For reasons that will become apparent, it is helpful to review the structure of a s. 278.3 application. Section 278.3 applications are conducted in two stages. During stage 1 an applicant must establish: (1) that their application conforms to s. 278.3(2)-(6); (2) that the record is “likely relevant”; and (3) that its production is “necessary in the interests of justice”: s. 278.5. Precondition (3) requires the trial judge to inquire, as best as can be done in the absence of having seen the record, into the “extent to which the record is necessary for the accused to make full answer and defence” (s. 278.5(2)(a)), and “the probative value of the record” (278.5(2)(b)). The trial judge is also required to consider any opposing interests that may justify non-disclosure, such as privacy and equality interests and the preservation of the integrity of the trial process: R. v. Mills, [1999] 3 S.C.R. 668 at paras. 139-141. If the applicant does not meet these three requirements, the application fails. If the applicant meets these requirements, the trial judge must order the production of the record for review “in the absence of the parties” to determine whether the record should be produced to the applicant: s. 278.6(1).

[22] Stage 2, which is only undertaken if the applicant meets their stage 1 burden, involves the review of the records by the trial judge to determine whether to produce records to the applicant: Mills, para. 14. Section 278.7(1) sets out the pre‑requisites to production of the records to an applicant. One of those pre‑requisites, again, is “likely relevance”. Since the judge will have reviewed the documents before making this second “likely relevance” determination, they will know the actual contents of the records. Therefore the “likely relevance” inquiry no longer focuses on what the documents are likely to contain (as it will at stage 1) but focuses instead on whether the known contents could relate to “likely” issues.

[23] Before ordering production to the applicant, the application judge must also be satisfied that production is “necessary in the interests of justice”. Once again, this inquiry is undertaken by applying the same considerations described above in para. 21 of these reasons, although at this juncture the determination of whether production is “necessary in the interests of justice” will be made with the benefit of having seen what the records actually contain: Mills, para. 54.

[24] In this case, the trial judge heard submissions relating to both stages of the s. 278.3 application at the same time. During those submissions counsel for Crime Stoppers argued that the records would not be “likely relevant” unless they relate to an issue that is contested between the parties and they contain evidence that the Crime Stoppers tips were about under-age sexual services. The other parties expressed agreement with the latter “likely relevance” submission but made no comment on whether, to be relevant, evidence must relate to an issue that is contested.

[25] Counsel for Crime Stoppers also argued that if the trial judge found the evidence to be “likely relevant”, the proceedings should move in camera for stage 2 and the court should invite submissions, and that during the in camera hearing the accused and his counsel are to be excluded. Only he could attend.

[26] M.C.’s counsel objected strongly to proceeding in this way. He argued that since the s. 278 application was part of his trial, neither M.C. nor his counsel could be excluded during stage 2 submissions.

[27] At the end of Crime Stoppers’ submissions, the trial judge took a recess during which he prepared his decision on stage 1 of the application. Before doing so he apparently ruled that if M.C. succeeded in his stage 1 application, he would be hearing ex parte submissions from Crime Stoppers relating to stage 2:

And when it comes to the record, if I examine it, I will have a more fulsome discussion with [Crime Stoppers’ counsel] in the absence of the Crown and defence, if I get to that stage.

[28] The trial judge returned and in his stage 1 ruling held that the “preliminary test” was met, explaining that, “the documents [are] a record, they exist and they may be relevant.” The trial judge did not address legal requirement (3) to judicial inspection, namely, whether the production of the record to the court for inspection is necessary in the interests of justice. [1] He then said:

I now proceed with an in camera proceeding in the absence of Crown and defence and hear submissions of the third-party records holder, Crime Stoppers, represented by counsel today.

[29] From 11:33 a.m. until 11:42 a.m., the trial judge heard ex parte submissions from counsel for Crime Stoppers. These proceedings were held in camera and were not transcribed. The trial judge then reconvened a short time later and provided brief reasons in his stage 2 ruling, that I will reproduce in their entirety:

I have heard the submissions of counsel for the third-party records holder, Crime Stoppers, In-Camera. In the absence of crown and defence pursuant to Section 278.4, I’ve ordered the production of the two records, and examined them ensuring that they match the file numbers as set out in Mr. [C.]’ s screen shots. I have placed these records in a sealed packet, or I will do so after the decision. I am satisfied that they do not meet the test for production to the accused even given the limited information he sought, about the nature and substance of his tips. They are of no assistance as to his credibility, or to the reliability of this proposed evidence, pursuant to s. 278.3(4)(e) and (f), and they are not relevant to any issue at trial. Further they are of no assistance to Mr. [C.] and Mr. [C.]’s right to make full answer and defense, to adopt the wording of s. 278.7(2), therefore, the application is dismissed.

[30] Section 278.4, the provision the trial judge relied upon as authority for receiving ex parte submissions, provides, in relevant part:

s. 278(4)(1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

[31] It says nothing about conducting the hearing ex parte, a point I will return to below.

THE ISSUES

[32] As indicated, it is necessary to address only one of the issues raised on appeal, namely, “did the trial judge commit a reversible error by receiving ex parte submissions from the third-party record holder?” For the following reasons, I would answer that question in the affirmative.

[33] As I will explain, in the circumstances of this case, the s. 278 application formed part of M.C.’s trial. Section 650 therefore required M.C. to be present during the submissions that counsel for Crime Stoppers made, and this requirement was breached. This was not a minor error. The obligation to have the accused present at their trial is jealously guarded. Although in some circumstances the failure to respect s. 650 will not be a reversible error, in the circumstances of this case the Crown has not rebutted the presumption of prejudice that arose from M.C.’s exclusion.

ANALYSIS

[34] I will begin by reinforcing the importance of having the accused present during their trial. At common law “no trial for felony could take place except in the presence of the accused unless the accused by his misconduct rendered a trial in his presence impossible.”: R. v. Hertrich (1982), 137 D.L.R. (3d) 400 (Ont. C.A.), at p. 415, leave to appeal refused, [1982] 2 S.C.R. x. In Hertrich, at p. 415, Martin J.A. described the right to be personally present at one’s trial of an indictable offence as “a fundamental principle of the criminal law.” Similarly, principles of natural justice, specifically the right to be heard (audi alteram partem), requires that courts and tribunals respect an individual’s right to be present at hearings: Supermarchés Jean Labrecque Inc. v. Flamand, 1987 SCC 19, [1987] 2 S.C.R. 219, at p. 238-239. This right ensures that individuals are given an opportunity to challenge the case and information brought against them, thereby satisfying the governing principle of fundamental justice: R. v. Suresh, 2002 SCC 1, [2002] 1 S.C.R. 3, at paras. 122, 127. This court has also affirmed that, “[p]rivate trials which exclude the accused are antithetical to [the] core value” of the perceived fairness of criminal trials: R. v. Laws (1984), 41 O.R. (3d) 499 (C.A.), at p. 525; R. v. James, 2009 ONCA 366, 95 O.R. (3d) 321, at para. 20.

[35] The right of accused individuals to be present at their own trial has been codified in s. 650 of the Criminal Code, “not merely as an entitlement but as an imperative”: L.W.T. v. The Queen, 2008 SKCA 17, 230 C.C.C. (3d) 220, at para. 22. Section 650 provides, in material part:

s. 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 their trial. [Emphasis added.]

[36] Even where s. 650 does not apply, the right of attendance is so important that judges are required to “adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence”, an obligation that may require the provision of “a redacted or summarized version of the evidence” or potentially the appointment of amicus curiae: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at paras. 54-57.

[37] In Hertrich, at p. 426, Martin J.A. affirmed that the statutory right to attend the whole of one’s trial serves two purposes, the latter of which may be more important. The first interest is the opportunity attendance provides to an accused to hear the case being made out against them and to have an opportunity to answer it. The second interest is the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result, the denial of which “may well leave [the accused] with a justifiable sense of injustice”: Hertrich, at p. 426. Although this latter interest is expressed as concern for the perception of the accused as to the fairness of their trial, it is well understood that the appearance of fairness is to be judged objectively, and not based on the actual, subjective perspective of the accused: see R. v. Spiers, 2012 ONCA 798, 113 O.R. (3d) 1, at para. 32, R. v. Irving, 2012 ONCJ 234 at para. 14. In R. v. Barrow, [1987] 2 S.C.R. 694, at p. 705-706, Dickson C.J.C. adopted Martin J.A.’s conclusions about the purposes of s. 650. He then described the impact of the exclusion of an accused person from their trial on the public perception of the fairness of the trial as “crucial”: Barrow, at p. 715. Dickson C.J.C. further commented that an accused’s presence at trial is “of enormous importance to the perceived fairness of the Canadian criminal justice system”: Barrow, at p. 707.

[38] Given the importance of the presence of accused persons at their trials, a failure to comply with s. 650(1) is not simply a legal error. It is a jurisdictional error without the necessity of the accused showing that they suffered prejudice: R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.) at p. 42, leave to appeal refused, [1989] S.C.C.A. No. 194. Such an error is so “fundamental” that, prior to 1985 when the Criminal Code was amended, the prevailing view was that the curative proviso in s. 686(1)(a)(iii), applicable to errors that occasion no substantial wrong or miscarriage of justice, was innately inapplicable: Meunier v. The Queen (1965), 48 C.R. 14 (Que. Q.B.) at p.16, aff’d , [1966] S.C.R. 399. In 1985, a different statutory curative proviso, s. 686(1)(b)(iv), was enacted making it possible to cure breaches of s. 650 that amount to a “procedural irregularity at trial”: R. v. E.(F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 30, and see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 11-16.

[39] The Crown employed two strategies in this appeal to overcome M.C.’s exclusion from the courtroom during Crime Stoppers submissions. It submits: (1) that s. 650 was not contravened because, in this case, the s. 278 application was not part of the trial, and (2) that s. 686 (1)(b)(iv) applies. I will address these two submissions, in turn.

(1) Was there a s. 650 error?

[40] I do not accept the Crown submission that the s. 278 application was not part of the trial, rendering s. 650 inapplicable. I accept the premise of the Crown’s argument that, outside of the “normal trial process” for “determining guilt or innocence and the imposition of sanctions”, steps can be taken during a criminal prosecution that are not part of the trial: Hertrich, at pp. 416-417; James, at paras. 15-16. However, as the Crown recognizes, steps taken outside of the normal trial process can, and often are, part of the trial within the meaning of s. 650: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 115. [2] Indeed, given the importance of the attendance of the accused, the word “trial” in s. 650 is to be “liberally construed”: Basarabas and Spek v. The Queen, [1982] 2 S.C.R. 730, at p. 740. The breadth of the concept of a “trial” under s. 650 is also signalled by its reference to the “whole of the trial”: Barrow, at p. 704. In my view, it would take a narrow conception of “trial” and “whole trial” to accede to the Crown’s submission in the circumstances of this case.

[41] Here is the test that is to be applied: “[w]hether an aspect or procedural incident of or associated with a criminal trial is part of the trial depends upon whether: what occurred involved or affected the vital interests of the accused; or whether any decision made had a bearing on the substantive conduct of the trial”: R v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at para. 56; Barrow, at p. 707‑708. This is not to be determined by asking whether the outcome would have been the same had the accused been present. As the analysis in Hertrich, at pp. 428‑429, and Simon, at para. 109, illustrate, the focus is on whether the proceeding involved a vital interest or issue related to the determination of the trial.

[42] During the ex parte s. 278 hearing in this case, the trial judge received submissions from counsel for Crime Stoppers clearly opposing an application M.C. brought in support of his right to present full answer and defence at trial. Those submissions were directed at, and involved, M.C.’s vital interest. They were meant to prevent him from having the access to documentation he sought to assist in his case, and the decision that the trial judge was going to make after that hearing clearly had a bearing on the substantive conduct of the trial. As a result of the failure of the s. 278 application, the Crown was able to challenge M.C.’s credibility by pointing to the absence of documentation supporting his claims, the very outcome M.C. was seeking to forestall. In my view, the fact that the Crown made submissions during trial relating to the credibility of M.C.’s defence that depended on the outcome of the application underscores the impact of the s. 278 application on the substantive conduct of the trial.

[43] In concluding that M.C.’s vital interests were involved or affected, and that the substantive conduct of his trial was impacted by the ruling at stake, I recognize the Crown’s submissions that this was a motion for production, and not an admissibility motion, and that the s. 278 motion involved different parties than the trial because the record-holder was a party at the s. 278 hearing but would not be a party to the trial. I will address these points, in turn.

[44] Disclosure and production provide the gateway both to admissible evidence and potential trial strategy: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 332‑334. As this case shows, disclosure or production motions are not inherently remote from the issues in the trial or the manner in which it will be conducted and are not per se events that occur outside of the trial. Indeed, in my view, since production applications involve attempts to secure targeted information in order to present full answer and defence, production applications will generally be part of the trial, requiring the attendance of the accused, pursuant to s. 650.

[45] The Crown relies heavily on the Basi decision to argue otherwise. In Basi, Fish J., for the Court, rejected the submission that s. 650 applies to permit counsel for the accused to attend a s. 37 Canada Evidence Act, R.S.C. 1985, c. C-5 hearing to resolve a Crown objection to disclosure of information on the grounds of “specified public interest”, in that case, informer privilege: Basi, paras. 50-53. I do not read Basi as holding that disclosure hearings are not part of a trial for the purpose of s. 650. As always, the application of s. 650 is context specific, and s. 37 has unusual procedural trappings not found in a s. 278 hearing that remove s. 37 hearings from the sphere of a trial.

[46] The hearing at issue in Basi was to determine whether informer privilege prohibits disclosure. In such a context an ex parte application must be held where the accused is outside of the circle of privilege and information tending to identify the informer is bound to be revealed in circumstances where the identity of the informer cannot otherwise be protected: Basi, at para. 44; R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, at paras. 60-61, 63. Although not identified as such by Fish J., there was therefore an automatic and mandatory exception to the operation of s. 650 at play in Basi. Instead, Fish J. relied upon this court’s decision in R. v. Pilotte, [2002] 156 O.A.C. 1 (Ont. C.A.), leave to appeal refused, 180 O.A.C. 398 (note), in support of the proposition that a s. 37 hearing is “a discrete proceeding, separate from and only ancillary to the criminal trial”: Basi, para. 50. In Pilotte, Charron J.A. (as she then was) arrived at this conclusion after recognizing that: (1) a “specified public interest” objection can be made by a minister of the Crown who is not a party at the trial; (2) an objection will result in the s. 37 hearing in a case, which is being prosecuted in provincial court, being moved to another level of court, and (3) a s. 37 hearing will give rise to an independent right of appeal, including a moratorium on the operation of the decision during the appeal period, and a right to leave to appeal to the Supreme Court of Canada: Pilotte, paras. 38-41. I would add that a s. 37 hearing will almost invariably address an issue of privilege where the accused is not within the circle of the claimed privilege, and that the rules of evidence are modified: s. 37(6.1), s. 37(8).

[47] To be sure, Fish J.’s decision in Basi found further support in the fact that the Crown was not proposing to rely on the disputed evidence at trial, and that the evidence did not fall within the innocence at stake exception to informer privilege. But these considerations did not drive the outcome in the case. Absent an innocence at stake exception or a competent waiver of informer privilege, the s. 37 hearing still had to take place in the absence of the accused or his counsel, superseding any claimed right to attend pursuant to s. 650.

[48] Unlike Basi, the s. 278 application in this case was not a s. 37 hearing and did not raise informer privilege, or any other “specified public interest”. I recognize that informer privilege applies generally to Crime Stoppers tips: R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 13. However, M.C. was not only the accused. He was also the informant. He was therefore within the circle of privilege, since he shared ownership of that privilege with the Crown, as informer privilege belongs in law to the informer and the Crown together: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 25. Unlike Basi, M.C. and his counsel did not have to be excluded from the hearing to protect the circle of privilege. Moreover, in this case the informer privilege was waived because both the privilege holders, M.C. and the Crown, consented to a waiver of the privilege: Durham Regional Crime Stoppers Inc., at para. 11, Basi, at para. 40. I am therefore persuaded that Basi does not govern the outcome of this case.

[49] For the same reasons expressed in para. 48 of this judgment, I also reject the Crown’s additional, related submission that the s. 278 hearing was not part of the trial because it raised informer privilege, which would not be an issue during the normal trial process. As I say, informer privilege was not, in fact, in issue at the s. 278 hearing. Moreover, although there were privacy issues at play during the s. 278 hearing that would not be at play during the normal trial process, there was material overlap between M.C.’s interest in facilitating full answer and defence during the s. 278 hearing and at the trial.

[50] I also reject the Crown’s submission that because Crime Stoppers was a party to the s. 278 hearing and would not be a party once the trial judge took charge of the proceedings, that this works against a finding that the s. 278 hearing was part of the trial. Where a s. 278 application has been brought, third party record holders, as well as persons to whom those records relate, have been given specified, narrow, and exceptional standing during a criminal prosecution between the state and the accused because of the discrete interest they share with the accused in the outcome of a s. 278 application: see R. v. G.E., 2020 ONCJ 449, at para. 48. In my view, the record holder’s party status during a s. 278 hearing is not a reasoned basis for treating a s. 278 application as an event that is not part of the trial. Quite simply, the right of those with privacy interests in third party records to participate in s. 278 applications in no way diminishes the vitality of the interest of the accused in the outcome of such applications or the impact that such applications may have on their trials.

[51] In support of its position, the Crown also relies on the fact that M.C. had not yet been arraigned when the application occurred. I accept that the formal trappings of a trial, such as arraignment, are relevant in assessing the impact of the proceedings on the vital interests of the accused. “Generally speaking, the trial of an accused does not commence until after plea”: Hertrich, at p. 416. But, in my view, the importance of arraignment as a signal that a trial has started is vanishingly small where, as here, the procedure is being conducted by a designated case management judge appointed to exercise the powers of a trial judge, pursuant to ss. 551.1 and 551.2 of the Criminal Code.

[52] Sections 551.1 and 551.2, which were not in force when Martin J.A. commented in Hertrich that a trial will not commence until after the plea, were enacted to permit the efficient pretrial disposition of tasks ordinarily performed by trial judges. Section. 278 applications are tasks ordinarily restricted to actual trial judges. By virtue of ss. 278.3(1) and (2), s. 278 applications are to be brought “to the judge before whom the accused is to be, or is being tried”, and “may not be made to a judge or justice presiding at any other proceedings”. Clearly, a case management judge conducting a s. 278 application is standing in the shoes of a trial judge. Equally clearly, the fact that, subject to ss. 551.1 and 551.2, ss. 278.3(1) and (2) assign third party record tasks to trial judges reinforces that s. 278 applications should generally be considered part of the trial even when conducted by case management judges.

[53] What, then, of the fact that in this case the trial judge did not arraign M.C. before conducting the s. 278 application, a traditional signal that a trial is beginning? Since case management judges tend to conduct their business before a trial judge is assigned, and since arraignment is a traditional marker that a judge is seized to try the charges and the accused, it is not uncommon for case management judges to proceed without arraignment, leaving it to be done for the first time before the trial judge. In these circumstances, in my view, given that the case management judge is performing tasks ordinarily performed by the trial judge, the commencement of the trial cannot be reliably informed by formal arraignment where a case management judge is conducting the proceedings.

[54] I am therefore persuaded that the trial judge committed a jurisdictional error, contrary to s. 650, by excluding M.C. from the in camera hearing.

[55] I am equally persuaded that the trial judge erred in law in the application of s. 278.4 of the Criminal Code. For clarity, I will reproduce the provision:

s. 278.4 The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

[56] It can be seen that s. 278.4 provides for in camera proceedings, not ex parte hearings. There is a difference: Basi, at para. 41. During an in camera hearing the public is excluded. During an ex parte hearing one or more of the parties appear, to the exclusion of one or more of the other parties. Yet the trial judge relied on this provision as authority for hearing submissions from Crime Stoppers in the absence of M.C., an authority s. 278.4 does not provide.

[57] It is also important to point out that s. 278.4 applies to stage 1 hearings, not stage 2 hearings yet the trial judge erroneously relied upon it as governing the conduct of a stage 2 hearing. Section 278.4 specifies that an in camera hearing must be heard “to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge”, which, of course, is the determination that gets made at stage 1. Section 278.4 has no application to stage 2 hearings, where s. 278.6(2) applies. Unlike s. 278.4 which requires a judge to conduct an in camera hearing at stage 1, s. 278.6(2) permits a judge to conduct a stage 2 in camera hearing if they conclude that it will assist them in making the stage 2 determination, that is, whether to produce the records after review to the applicant. Here, the trial judge erroneously conducted the stage 1 hearing in public, [3] when it was to have been conducted in camera pursuant to s. 278.4 and purported to conduct a stage 2 in camera hearing under the authority of the stage 1 provision. Although this point was not raised on appeal, I mention it to reaffirm the importance of ensuring that third-party records proceedings are conducted in camera in their entirety, so that they will not result in public disclosure of private information.

[58] In fairness, the trial judge appears to have been misled in the procedures he used by the submission of counsel for Crime Stoppers that s. 278.6(1) requires the exclusion of the parties at the in camera hearing. Counsel for Crime Stoppers took the position that since this provision specifies only the exclusion of the parties, and since Crime Stoppers is not a party, he was entitled to take part in the in camera hearing. This position, which the Crown took no issue with, is incorrect on two counts.

[59] First, pursuant to s. 278.6(1), it is the “review” of the record that is to be done “in the absence of the parties”, not any in camera hearing the trial judge may agree to conduct. Put simply, s. 278.6(1) directs the trial judge to review the record alone. It does not purport to limit who can attend a stage 2 in camera hearing if the judge decides to conduct one to assist in the review that they will then conduct alone.

[60] Second, a third-party record holder is a “party” to a s. 278 application and is therefore to be excluded by s. 278.6(1) when the trial judge does ultimately review a third-party record that they have ordered produced to them.

[61] I should make one more housekeeping remark about the manner in which a s. 278 hearing is conducted, given what transpired in this case. Specifically, M.C.’s counsel asked to be provided with a redacted copy of the records so he could make submissions to assist the trial judge in deciding what records should be produced. It is not uncommon for redacted copies of documents or summaries to be provided to facilitate submissions where confidential informant information is potentially implicated: Basi, at para. 57; R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 103. But similar procedures are not appropriate in a s. 278 application, absent an express and effective waiver of privacy over the edited contents of the record proposed to be disclosed. Section 278.2(1) is explicit in directing that, “[e]xcept in accordance with sections 278.3 to 278.91, no record relating to a complainant or witness shall be produced to an accused in any proceedings in respect of [an offence to which the s. 278 regime applies]”. This prohibition does not apply where an express waiver has occurred: s. 278.2(2). But otherwise, the applicant should not be receiving any contents from the protected records until a stage 2 ruling has been made in their favour. This not only reflects the letter of the legislation but also recognizes that production to the applicant is to be governed not only by relevance, but also by whether production is required in the interests of justice, a determination that is not appropriately made based solely on what is capable of being redacted. M.C.’s counsel should not have been asking for a redacted copy of the targeted records.

[62] I will make one final point about s. 278, stage 2 hearings. If a judge does decide to conduct a stage 2 hearing, the precision and scope of the submissions that can be made will be compromised by the fact that the applicant will not have seen the records, and the reality that the record-holder and the Crown (who may have seen the record) will have to avoid referring to the precise contents of the records in order to keep from indirectly defeating the interests protected by s. 278. This does not mean that there is no utility in a judge receiving general guidance on such matters as: how to read the records; what kinds of information should be adjudged to be relevant and probative, if it is found in the documents; what other interests they should consider; and the principles they should apply.

[63] I therefore want to be clear that the trial judge cannot be faulted for wanting to hear from counsel for Crime Stoppers. The error he made was in hearing from him ex parte in circumstances where M.C. did not have an opportunity to respond and was reasonably left wondering what was said in his absence and what influence it may have had on the outcome of the application, and hence the outcome of the case.

[64] For the sake of completeness, I note that s. 278 has not provided for ex parte hearings, and there is no suggestion that any of the exceptions to s. 650 apply in this case.

[65] Since stage 2 of the s. 278 hearing was part of the trial, and no exception operated to permit the exclusion of M.C. and his counsel, I would find that there was a s. 650 error.

(2) Is the error reversible or saved by proviso s. 686(1)(b)(iv)?

[66] The Crown argues that if a s. 650 error occurred, it is saved by the curative proviso in s. 686(1)(b)(iv), which can be applied to s. 650 violations. Section 686(1)(b)(iv) provides in material part:

686(1) On the hearing of an appeal … 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.

[67] “Section 686(1)(b)(iv) is permissive”: E.(F.E.), at para. 30. Where its preconditions are satisfied, s. 686(1)(b)(iv) “permits, but does not require, a court of appeal to dismiss an appeal where three conditions are met”: E.(F.E.), at para. 30. I am not persuaded that all of s. 686(1)(b)(iv)’s preconditions are met, or that if they were, this is an appropriate case for its application.

[68] There are three preconditions that must be satisfied before s. 686(1)(b)(iv) can be applied: (1) there must be a procedural irregularity that occurred at trial; (2) the trial court must have had jurisdiction over the class of the offence; and (3) the court of appeal must be satisfied that the appellant has suffered no prejudice from the procedural irregularity. Precondition (1) is satisfied. The term “irregularity” is not confined to minor breaches of procedure but can embrace “serious” irregularities: Simon, at para. 121. Our jurisprudence has therefore proceeded on the basis that this provision can be applied against s. 650 breaches: see E.(F.E.), at para. 31, citing Cloutier and Simon. Precondition (2) is also satisfied. The jurisdiction of the trial judge to conduct the s. 278 application is not in issue. The problem I have with the Crown’s request to apply the curative proviso is with precondition (3). I am not persuaded that the appellant suffered no prejudice from the procedural irregularity.

[69] “Prejudice” includes: (1) “an individual accused’s ability to properly defend her or himself and to receive a fair trial”, and (2) “prejudice in the broader sense of prejudice to the appearance of the due administration of justice”: E.(F.E.), at para. 33; Cloutier, at pp. 48-49; L.W.T., at para. 28. This latter form of prejudice arises “where the circumstances of the exclusion of the accused are such as to inflict significant damage on the appearance of justice”, that brings “harm to the criminal justice system itself”: James, at para. 20, quoting Laws, p. 525. Bearing these two kinds of prejudice in mind, this court has held that the test for prejudice under s. 686(1)(b)(iv) is the same as the “no substantial wrong or miscarriage of justice standard in s. 686(1)(b)(iii)”: E.(F.E.), at para. 34, citing Khan, para. 16. The burden of establishing no prejudice is on the Crown, and there is a rebuttable inference of prejudice where a s. 650 violation has occurred: E.(F.E.), at para. 34.

[70] In my view, both forms of prejudice occurred here. At the very least, the Crown has failed to rebut the presumption of prejudice.

[71] In Simon, at para. 123, Watt J.A. directed that all relevant circumstances have to be considered in evaluating whether the presumption of prejudice has been rebutted, but he identified a sampling of relevant factors:

(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.

[72] It is convenient to address the Crown’s submissions through the lens of this non-exhaustive list of factors. As I will point out below, in my view none of the Simon factors assist the Crown’s position. They each do the opposite.

[73] With respect to factor (i) identified in Simon – the nature and extent of the exclusion, including whether it was inadvertent or deliberate – I do not accept the Crown submissions. The fact that the exclusion was not targeted, because the Crown was also excluded from the ex parte hearing, has no material impact on the prejudice M.C. experienced. The Crown took no position during the third-party records application. But M.C. strongly advocated for production. There is no equivalency arising from their mutual exclusion. More importantly, as I will explain, the prejudice to M.C. arises from his inability to participate in stage 2 submissions, and to know what transpired in his absence. The fact that the Crown was also absent provides no solace.

[74] What does matter in terms of the nature of the exclusion is that it was not just M.C. that was excluded. His lawyer was also excluded. This is not a case like E(F.E.), at para. 42, or L.W.T., at para. 30, where the lawyer was present in the absence of his client, and therefore able to make submissions, or to relate to the client what had transpired in his absence.

[75] Nor do I accept the Crown’s reliance on the fact that the ex parte hearing lasted only nine minutes. The brevity of the exclusion is immaterial. Counsel for Crime Stoppers was permitted to make the submissions he wished to make, and the ruling followed closely after. The time taken tells us nothing about the impact the ex parte hearing had on the outcome or on the appearance of fairness.

[76] Finally, with respect to Simon factor (i), unlike the circumstances in L.W.T., at para. 30, the exclusion of M.C. was not unintentional. It was deliberate, a consideration that Goodman J.A. described in Cloutier, at p. 52, as a basis for refusing to apply s. 686(1)(b)(iv).

[77] Simon factor (i) therefore does not assist the Crown in establishing an absence of prejudice. It does the converse.

[78] Simon factor (ii) – the role or position of the defence counsel in initiating or concurring in the exclusion – does not assist the Crown either. This is not a case where defence counsel initiated or consented to the exclusion, as in Simon, at para. 127. M.C.’s counsel objected on more than one occasion. Nor did M.C. or his counsel contribute to the breach, such as in L.W.T., at para. 32, where the accused created a situation of urgency by bringing a last-minute severance application. Instead, the Crown contributed to the breach by endorsing the erroneous procedure that counsel for Crime Stoppers had recommended.

[79] Simon factor (iii) – whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused – also works against the Crown position. It remains unknown what transpired during the ex parte hearing. The proceeding was not recorded, as it was in R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at para. 76. Nor do I accept the Crown’s position that we know what occurred because of the trial judge’s finding that the targeted records were irrelevant. As is typically the case in s. 278 applications, where privacy considerations often require rulings to be made without the specificity that may otherwise be expected, the trial judge’s ruling was brief. His finding that the documents did not contain relevant information does not identify the basis upon which that finding was made or the submissions that contributed to it, a point I will return to below.

[80] With respect to Simon factor (iv) – whether any discussions in the accused’s absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters – the hearing that was being conducted when the ex parte submissions were being made was not preliminary in nature. It involved a pending decision that would impact how the trial would be conducted and the ruling may have touched on the viability of M.C.’s defence, a point I will now address.

[81] In this regard, it is convenient to discuss Simon factor (vi) before addressing Simon factor (v) because the discussion of Simon factor (vi) – the effect, if any, of the discussions on decisions about the conduct of the defence – bears on the analysis of Simon factor (v) – the effect, if any, of the discussions on the apparent fairness of the trial proceedings.

[82] With respect to Simon factor (vi), I do not accept the Crown position that it can be inferred that the discussions that took place during the ex parte hearing had no bearing on the outcome of the application. The Crown is simply not in the position to establish that submissions made by counsel for Crime Stoppers did not influence the outcome. It did not present fresh evidence as occurred in Dayes when a transcript of the ex parte hearing was filed by the Crown. Further, I do not accept the Crown’s submission that it can be inferred from the fact that counsel for Crime Stoppers had already stated its position on relevance before the ex parte hearing began that nothing of importance was said to influence the trial judge’s relevance determination. In my view, the natural inference is that in asking for further ex parte submissions, counsel for Crime Stoppers had more to add.

[83] Indeed, there is reason to be concerned about whether the submissions counsel for Crime Stoppers made provided the trial judge with sound guidance. Prior to the ex parte hearing, counsel for Crime Stoppers spoke at times of “relevance” when the standard to be applied is actually “likely relevance”. I note, in this regard, that in his stage 2 ruling (reproduced in para. 29 of this judgment) the trial judge referred to the ‘relevance” of the evidence, not its “likely relevance”. Counsel for Crime Stoppers also told the trial judge that a matter is only relevant if it relates to an issue that is contested between the parties. This is not entirely correct. At stage 2, the likely relevance inquiry addresses whether factual issues are likely to arise, not whether they are known to be in contest. In my view, the submissions counsel for Crime Stoppers made and their impact remain unknown, but they may well have affected the trial judge’s decision, thereby impacting the conduct of the defence.

[84] I reject the Crown’s related submission that there was no prejudice to M.C.’s ability to defend himself because he was able to present his defence position without the third-party records. It cannot be ruled out that had M.C. been present during the stage 2 submissions, he may have been able to influence the trial judge’s decision, thereby securing copies of the missing Crime Stoppers documentation, which may have influenced the strength of that defence. The Crown is not well-situated to argue that the s. 278 ruling did not affect M.C.’s defence, given that the trial Crown relied upon M.C.’s failure to produce his Crime Stoppers tips in challenging that defence.

[85] In my view, the Crown has not established that the ex parte stage 2 hearing did not affect the conduct of the defence. The Crown has not rebutted the presumption of prejudice to M.C.’s ability to properly defend himself and receive a fair trial.

[86] With respect to Simon factor (v) – the effect, if any, of the discussions on the apparent fairness of the trial proceedings – I reject entirely the Crown’s submission that the public would understand the policy basis for excluding M.C. from the in camera hearing conducted by the trial judge. That exclusion was illegal. The fact that ex parte hearings are legally permissible in some other contexts is of no moment. M.C. was deprived of his firm right to be in attendance, despite the cogent objections his counsel made. As a result, he was not presented with an opportunity to engage with the submissions counsel for Crime Stoppers made, and he, along with the public, are left without information about what transpired. The impact of that proceeding on the ruling made, and ultimately on the trial, cannot truly be known.

[87] The extent to which the uncertainty of what transpired in M.C.’s absence impedes the appearance of justice is illustrated by the colloquy his counsel had with the trial judge after the trial judge’s ruling about the scope of cross‑examination relating to the Crime Stoppers records that would be permitted when M.C. took the stand. Counsel for M.C. clearly and reasonably felt hampered in understanding the implications of the s. 278 ruling on the cross-examination, given the ex parte submissions that had been received:

Your Honour did hear in-camera submissions from Crime Stoppers … So, we don’t, the defendant or the parties don’t have a full, don’t, we’re not allowed at this stage to know the full record that led to Your Honour’s ruling, which puts the defence at a disadvantage in addressing a complaint about [the] relevancy [of the Crime Stopper documents] now, since my friend is going to rely Your Honour’s ruling, but Your Honour’s ruling was relied on in-camera submissions.

I say it’s unfair to the trial process that that ruling you made, in light of in-camera submissions that no other party in this trial has access to, is now allowed to be used to determine relevancy for what [Mr. C.] is testifying about. It, because in the trial proper, in the trial proper there’d be no in-camera submissions like that. But you’ve got in-camera submissions and, so we were translating that ruling into this and that’s where were really concerned about the fairness issue.

[88] In my view, the effect on the apparent fairness of excluding M.C. from the stage 2, s. 278 proceeding was profound, thereby inflicting significant harm to the criminal justice system. Again, the Crown has not rebutted the presumption of prejudice.

[89] I would not apply the curative proviso in s. 686(1)(b)(iv).

CONCLUSION

[90] I would therefore allow the appeal and order a new trial.

Released: September 21, 2023 “G.H.”

“David M. Paciocco J.A.”

“I agree. Grant Huscroft J.A.”

“I agree. S. Coroza J.A.”

Footnotes

[1] I pause to note that if the trial judge failed to consider this prerequisite he should have done so. In fairness to the trial judge, all the parties proceeded on the assumption that relevance and existence of the documents were the only material stage 1 issues. This is true in a common law third-party records application pursuant to R. v. O’Connor, [1995] 4 S.C.R. 411, but not with respected to s. 278 application, where a trial judge must also consider whether judicial inspection is in the interests of justice.

[2] Section 650 has been applied, for example, to such things as inquires involving the partiality and availability of jurors (Barrow, at p. 719; Hertrich, at pp. 418, 428); chambers meetings with counsel during trial in the absence of the accused (James, at para. 17; R. v. Schofield, 2012 ONCA 120, 109 O.R. (3d) 161, at paras. 17-18, 21); pre-charge conferences and discussions about the charge (R. v. Simon, at para. 109; R. v. E.(F.E.), at para. 51; R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at para. 61), and severance applications (R. v. L.W.T., at para. 25.).

[3] The trial judge began the stage 1 hearing as an in camera hearing but he subsequently accepted submissions from counsel for Crime Stoppers, agreed to by the Crown, that the camera becomes in camera only if submissions are being received at stage 2.