L'application de la disposition réparatrice face à un accroc à l'article 650(1) Ccr

R. v. Dayes, 2013 ONCA 614

Lien vers la décision

[65] Section 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides that an accused must be "present in court during the whole of his . . . trial". Courts have adopted an expansive view of what constitutes part of the trial, holding that an accused must be present for any part of the proceedings in which his or her "vital interests" are engaged: R. v. Hertrich, 1982 CanLII 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 539 C.C.C. Section 650(1) is triggered when a decision bears on the substantive conduct of the trial: R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 708 and 730 S.C.R., citing Hertrich, at p. 529 C.C.C. [page339]

[66] The appellant argues that the in-chambers discussion formed part of his trial and was neither preliminary nor merely procedural in nature. He contends that even though the trial judge was sitting with a jury, the trial judge was the central figure in the trial and was in a position to make rulings on evidence and other issues. The appellant says he had "an utmost interest in hearing the trial judge's opinion about the merits of the Crown's case and a possibility of a plea bargain". He adds that, although the discussion was transcribed, its content was not repeated on the record in open court.

[67] The appellant does not allege that the meeting resulted in specific prejudice to his case. Nonetheless, he submits that the proviso in s. 686(1)(b)(iv) of the Code should not be applied because the discussion about the merits of the Crown's case in his absence caused prejudice to the administration of justice. Section 686(1)(b)(iv) provides that the court of appeal may dismiss an appeal from conviction where, "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".

[68] Prudence and good practice suggest that the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the appellant's presence, in open court and on the record. This should also apply to discussions held in a judge's chambers, since the term "trial" in s. 650(1) can include in-chambers discussions: R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, at para. 117, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 459; Hertrich, at p. 539 C.C.C.

[69] However, not every in-chambers discussion will constitute part of the "trial". As I noted earlier, whether something that happened during the course of a trial is part of the "trial" depends on whether or not it involved or affected the vital interests of the accused or whether any decision made bore on "the substantive conduct of the trial": Simon, at para. 116.

[70] I accept that a discussion in chambers about the possible resolution of charges against an accused engages his vital interests where, as here, the trial judge expresses an opinion about the Crown's evidence. That being said, even accepting that the appellant's rights under s. 650 of the Code were breached because he was excluded from this discussion, it is necessary to decide if the curative proviso is applicable. I note, however, that the need for this inquiry can be avoided so long as courts follow the prudent [page340] course of including the accused in all in-chambers conferences, regardless of the issues being discussed.

[71] In Simon, at para. 123, Watt J.A. listed the following non-exhaustive, relevant factors to be considered when deciding whether to apply the curative proviso to a breach of s. 650 of the Code:

 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] Having regard to these factors, in my view, the proviso should be applied for the following reasons.

[73] First, it is obvious from the entirety of the discussion that the trial judge's main concern related to the logistics and scheduling of the jury trial.

[74] Second, when the issue of the appellant's absence was raised by the Crown, defence counsel assured everyone that he would have a "fulsome discussion" with the appellant about what had transpired.

[75] Third, although the discussion was not recounted in open court, it was referred to in the presence of the appellant and the trial judge gave defence counsel time to review with him what had been discussed.

[76] Fourth, the entire discussion was on the record and was capable of being transcribed for purposes of appellate proceedings, which provides transparency with respect to the content of the discussions.

[77] Finally, the trial was by judge and jury and there is no assertion that the trial judge's brief comment about the merits of the Crown's case had any impact on the fairness or the conduct of the trial. Indeed, the appellant acknowledges that he is not alleging that the meeting resulted in any specific prejudice to the conduct of his defence.

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

Lien vers la décision

[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.

Les conférences pré-directives doivent être tenues en salle de Cour sous enregistrement en présence de l'accusé

R. v. Burnett, 2021 ONCA 856

Lien vers la décision

[54]      Little controversy exists about the principles that inform our decision on this ground of appeal. However, the parties are at odds about the result that should follow from the application of those principles to the circumstances of this case.

[55]      The appellant was statutorily required to be present for the “whole of his trial” under s. 650(1) of the Criminal Code, absent any applicable exception under s. 650(2). No statutory exception permitting or requiring the appellant’s exclusion applies: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 114, leave to appeal refused, [2010] S.C.C.A. No. 459.

[56]      Whether 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. See Simon, at para. 116; R. v. Hertrich, Stewart and Skinner (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 539, leave to appeal refused, [1982] S.C.C.A. No. 124; R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 128.

[57]      A pre-charge conference, authorized but not required under s. 650.1, is held to discuss “the matters that should be explained to the jury” and “the choice of instructions to the jury”. The subject-matter discussed at the pre-charge conference involves and affects the vital interests of the accused. It follows that the pre-charge conference is part of the accused’s trial: Hassanzada, at para. 129; R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 46. And it also follows, subject to the exceptions in s. 650(2), that the accused is not only entitled, but required to be present during the conference: Hassanzada, at para. 129; E. (F.E.), at paras. 46-47.

[58]      Since pre-charge conferences are part of an accused person’s trial at which they are required by s. 650(1) of the Criminal Code to be present, those conferences are required to be held:

            i.        in the courtroom;

            ii.        on the record;

           iii.        in the presence of the accused.

See Simon, at para. 137; Hassanzada, at para. 131.

[59]      This is not the first case in which an appellant has challenged the use of email to conduct substantive discussions about the contents of the charge to the jury. In prior decisions we have indicated that the use of email to provide counsel with copies of proposed jury instructions does not offend s. 650(1) of the Criminal Code. In those same decisions, we have made it equally clear that discussions about the content of those draft instructions are not to take place by email. These discussions, whether they solicit or offer submissions about charge content, affect and involve the vital interests of the accused and must take place in the actual presence of the accused. Section 650(1) requires it: Simon, at para. 137; Hassanzada, at paras. 130-131.

[60]      Few words are required to explain the combined effect of ss. 650(1) and 650.1 of the Criminal Code. In court. On the record. In the presence of the accused. No more is required. Nothing less will do. Section 650(2) contains no email exception to the “shall be present in court during the whole of his or her trial” requirement of s. 650(1): Simon, at para. 137; Hassanzada, at para. 131.

[61]      Where substantive pre-charge conference discussions take place outside the courtroom and in the absence of the accused, whether they are conducted in judicial chambers or elsewhere or by email, a procedural error has occurred. There is a violation of s. 650(1) of the Criminal Code. The result will be a new trial unless what occurred can be saved by the proviso in s. 686(1)(b)(iv) of the Criminal Code: E. (F.E.), at para. 29; Simon, at paras. 119, 122.

[62]      The discretion to dismiss an appeal under s. 686(1)(b)(iv) is engaged when three conditions are met:

            i.        a procedural irregularity occurred at trial;

            ii.        the trial court had jurisdiction over the class of offence of which the appellant was convicted; and

           iii.        the court of appeal is of the opinion that the appellant suffered no prejudice because of the procedural irregularity.

See, E. (F.E.), at para. 30. Provided the conditions precedent to the operation of the section have been met, the section may save harmless a breach of s. 650(1) of the Criminal Code: Simon, at para. 122; E. (F.E.), at para. 31. See also, R. v. Cloutier (1988), 1988 CanLII 199 (ON CA), 43 C.C.C. (3d) 35 (Ont. C.A.), at p. 49, leave to appeal refused, [1989] S.C.C.A. No. 194.

[63]      The phrase “jurisdiction over the class of offence” in s. 686(1)(b)(iv) refers to the classes of offences described in ss. 468, 469, and 785 of the Criminal Code. The offence with which we are concerned here – murder – is an offence listed in s. 469 of the Criminal Code. It is an offence within the exclusive trial jurisdiction of the superior court of criminal jurisdiction: R. v. Esseghaier, 2021 SCC 9, at paras. 42, 47, 48.

[64]      If a reviewing court is satisfied that what occurred was a procedural error and that the trial court had jurisdiction over the offence of which the appellant was convicted, the proviso inquiry turns its focus to the issue of whether the appellant suffered “no prejudice”: Esseghaier, at para. 50. The precise reach of the proviso in s. 686(1)(b)(iv) is without clear definition: Esseghaier, at paras. 51-53. However, it has been held that the term “prejudice” encompasses at least:

            i.        prejudice to the ability of an accused to properly respond to the case for the Crown and to receive a fair trial; and

            ii.        prejudice to the appearance of the due administration of justice.

See, E. (F.E.), at para. 33. Whether s. 686(1)(b)(iv) will hold harmless the procedural irregularity requires a close examination of all the circumstances including but not only the factors listed in Simon, at para. 123; E. (F.E.), at para. 36.

[65]      The standard we are to apply to determine the result of the prejudice inquiry under s. 686(1)(b)(iv) has not yet been authoritatively settled: Esseghaier, at para. 52. However, an appellant is not required positively to demonstrate prejudice to foreclose the application of the proviso. If the Crown satisfies the appellate court that the procedural error caused the appellant no prejudice, the proviso is available to dismiss the appeal.