Dans tous les procès criminels, la règle par défaut veut que toute discussion entre les avocats et le juge ait lieu en présence de l'accusé, en audience publique et soit enregistrée

R. v. Poulos, 2015 ONCA 182

Lien vers la décision

[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 [page680] 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 [page681] 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).