R. v. Burnett, 2021 ONCA 856
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[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.
