Les échanges par courriel entre les parties et la Cour quant sur la nécessité ou le contenu des directives enfreint l'article 650(1) Ccr

R. v. Hassanzada, 2016 ONCA 284

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[127] Section 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 requires that, apart from some exceptions that have no place here, an accused must be "present in court during the whole of his or her trial".

[128] To determine whether something that happened during the course of a trial is part of the "trial" for the purposes of s. 650(1), we ask whether what occurred involved or affected the vital interests of the accused or whether any decision made bore on "the substantive conduct of the trial": R. v. Hertrich, 1982 CanLII 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 529 C.C.C.; R. v. Vézina, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2, at pp. 10-11 S.C.R.; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 707-708 S.C.R.

[129] Pre-charge conferences authorized by s. 650.1 of the Criminal Code are held to discuss "the matters that should be explained to the jury and with respect to the choice of instructions to the jury". That the content of final instructions affects the vital interests of an accused is self-evident. As a result, s. 650(1) of the Criminal Code requires that the accused be "present in court" during these discussions. [page105]

[130] Electronic communication of proposed draft jury instructions to counsel is one thing. Without more, this method of communication would not seem to offend s. 650(1) any more than leaving a hard copy of the proposed instructions for counsel to pick up from a court office would do so. But inviting and receiving submissions from counsel by e-mail or other electronic means about the necessity for or content of jury instructions are as incompatible with the command of s. 650(1) as are in-chambers discussions on the same subject.

[131] Discussions about "the matters that should be explained to the jury and with respect to the choice of instructions to the jury" affect the vital interests of an accused. Section 650(1) of the Criminal Code tells us where they are to take place: "in court". Section 650(1) also tells us who is to be there: "an accused . . . shall be present". In court. On the record. In the presence of the accused.