Chambers hearings part of trial

Today’s Court of Appeal decision in R. v. James, 2009 ONCA 366 is interesting in that it finds that in chambers matters are part of a trial and, at least in the criminal context, an accused ought to be present.  The Court holds:

 

THE RIGHT TO BE PRESENT AT TRIAL

[14]   Subject to certain exceptions that do not apply in this case, an accused is entitled to be present at his trial. This fundamental principle is set out in s. 650(1) of the Criminal Code, which provides as follows:

Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

 

[15]   This court has held that not everything that occurs during the trial is part of the “trial” for the purposes of s. 650(1). The most complete discussion of this issue is by Martin J.A. in R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.). As he said, the essential reason an accused needs to be present at trial is so that the accused can hear the case made out against them and have the opportunity to answer it. This right also gives effect to the fundamental values of fairness and openness. As Martin J.A. said at p. 537:

The presence of the accused at all stages of his trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice.

 

[16]  Given these principles, Martin J.A. held that the accused had the right “to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests”: Hertrich, at p. 539. Subsequent cases have adopted an expansive view of what constitutes part of the trial to vindicate these policies. See R. v. Barrow, [1987] 2 S.C.R. 694, at 704, and R. v. Laws (1998), 41 O.R. (3d) 499 (C.A.), at 521.

 

[17]  In my view, the in-chambers discussion was part of the trial. The trial judge, who in this judge alone trial was the trier of fact, expressed his strong, if premature, views as to the credibility of one of the two Crown witnesses. That this discussion affected the appellant’s vital interests is demonstrated by the impact it had on the course of the trial and in particular, on the appellant’s decision not to testify. The danger of holding such meetings where the accused does not have first hand knowledge of the discussion and where, with the absence of the court reporter, no accurate record is kept, is manifest in the disagreement between counsel as to what was said. If Crown counsel is correct and the trial judge’s view of the Crown witness’s credibility depended on the accused testifying, the accused was misled by his own counsel. He acted upon erroneous information and advice because he was not present for this part of the trial. In short, the appellant’s ability to make full answer and defence was affected by what occurred in the chambers meeting. Given the outcome of the trial, and the trial judge’s repeated reference in his reasons to the appellant’s failure to testify, the appellant could well have a justifiable sense of injustice.