In chambers discussions without accused improper unless dealing with trivialities

R. v. Poulos, 2015 ONCA 182:

[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 ONCA 754, 104 O.R. (3d) 340, at para. 116, leave to appeal 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 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 ONCA 614, 117 O.R. (3d) 324, 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.

Thanks to Cheryl Sereny for pointing this case out!