Court File and Parties

Ontario Court of Justice

Date: 11 September 2014

Court File No.: Ottawa 14-A9818

Between:

Her Majesty the Queen

— and —

Nicholas Kim (Ex Parte)

Before: Justice Robert Wadden

Heard and Reasons for Judgment released on: September 11, 2014

Counsel:

• Mark Holmes, counsel for the Crown
• No appearance by or on behalf of Nicholas Kim, as the application proceeded ex parte

WADDEN J.:

A Mid-Trial Ex Parte Application

[1] Immediately prior to the commencement of the third day of this trial, the Crown brought an application dealing with an issue of security in this courtroom. The application seeks an order excluding the public under s. 486 of the Criminal Code. Due to the nature of the evidence relied on, the Crown asked that the application be heard in camera and ex parte.

[2] The first issue to consider is whether I should hear an application by the Crown in the absence of, and without notice to, the accused or his counsel, while we are in the middle of trial.

[3] Section 650 of the Code states that an accused is entitled to be present in court during the whole of his trial. The Ontario Court of Appeal considered the predecessor to this section in R. v. Hertrich, [1982] O.J. No. 496. The Court held that in certain circumstances a trial judge may hold an ex parte hearing, even in the middle of a trial. Mr. Justice Martin, writing for the Court, stated, at paragraph 50, that

…"trial" for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge's charge including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty.

[4] The Court further stated, at paragraph 54, that "during the course of the trial things may occur that, although in one sense part of the trial, cannot reasonably be considered to be a part of the trial for the purpose of the present principle, because they cannot reasonably be said to have a bearing on the substantive conduct of the trial, or the issue of guilt or innocence."

[5] Furthermore the Court stated, at paragraph 82, that the underlying principle is that the accused be entitled to be present "so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests."

[6] This decision was applied by the Ontario Court of Appeal as recently as July of this year in the decision of R. v. Lucas, 2014 ONCA 561 which reaffirmed the ability of a judge to hold ex parte hearings in certain circumstances, even in the midst of ongoing proceedings.

[7] I am satisfied that R. v. Hertrich is authority for the proposition that I am entitled to hold an ex parte hearing, mid-trial, where it is in the interests of justice to do so and where doing so does not prejudice the accused in his opportunity to defend himself or to have direct knowledge of anything that transpires that could involve his vital interests.

Application to this Matter

[8] This application alleged that there had been a significant security breach by a member of the public on the first day of this trial, August 12, 2014. I wish to make it clear that there is no allegation of any connection to the accused or any impropriety on the part of the accused.

[9] On review of the Application, I was satisfied that this application related to a matter of court security and that nothing I would hear in the course of the application would deal with the eventual result of the trial or affect the trial interests of the accused.

[10] I was also satisfied that there were valid reasons for the matter to be heard ex parte, in camera, provided that appropriate procedures were put in place to mitigate any potential appearance of unfairness arising from the ex parte nature of the application. I therefore directed that at the hearing of the application the Crown be represented by Crown counsel other than the trial crown. Mr. Mark Holmes, a senior Assistant Crown Attorney, represented the Crown on the application. Ms. Tansey, the trial crown, took no part in the hearing.

[11] The application proceeded, ex parte, this morning in this court. Evidence was heard and the record was ordered sealed.

[12] The evidence consisted of the sworn testimony of Det. Houston. I accept his evidence that there was a security breach by a member of the public in my courtroom during the trial of this matter on August 12, 2014.

Conclusion

[13] I have concluded that to prevent any further breaches and in order to maintain order and the proper administration of justice it is necessary to make an order pursuant to s. 486(1) excluding members of the public from this trial.

[14] I therefore order as follows:

All members of the public are excluded from the courtroom during the testimony of any witness in this trial.

Exceptions to this order are:

(a) Accredited members of the press. (If there is any issue as to who is an accredited reporter it may be raised with me);

(b) Court Services Staff;

(c) Members of the Law Society of Upper Canada, including articling students;

(d) Any staff member of Mr. Friedman's office, working under his supervision;

(e) Police officers or special constables; and

(f) A volunteer student on placement with the Ontario Court of Justice.

[15] Any additional exceptions can be requested of me and will be considered on a case by case basis.

[16] This order should not be interpreted as placing any restriction on what may be reported by the press, other than information that would breach orders that are already in place (as there is a ban on publication of information that might identify the witness who is currently testifying).

Released: September 11, 2014

Signed: Justice Robert Wadden