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650. (1) The Accused is to be Present at All Times
"... The appellant was excluded from a portion of his trial in violation of s. 650(1). At the close of the Crown’s case, the trial judge initiated a mid-trial conversation about the resolution of the trial in the absence of the appellant. In a judge-alone criminal trial, such a conversation will always prejudice the fair trial interests of the accused..."
Part XX (20) of the Criminal Code of Canada, contains section 650. (1), which reads:
650. (1) Accused to be present — 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.
It seems like a fairly straight forward provision, but I have found that there is a big difference between the way the law is written and the way it is done. Most defence lawyers will concede that knowing who the judge is going to be (a closely guarded secret until it must be revealed) will make prediction of an outcome an easier game, and certain judges and JPs have their idiosyncracies that you just might as well get used to.
But in R v Poulos, this freedom to run things as the judge chooses went to far. The accused is the only person in any jeopardy in a court room. Sometimes courts and lawyers treat the accused as an afterthought, a place holder. Lawyers talk, judges talk, witnesses talk, but the accused is often a seemingly forgotten man. Not in this case.
In R v Poulos, the judge listened to two complainants give testimony and then invited the lawyers back into his chambers. In Canada, the idea is that proceedings take place in open court and on the record. Some people will say that if the judge simply wishes to discuss scheduling matters and such, then what's the harm in having a private discussion? Well, not in my books. Even if nothing material takes place behind closed doors, what message does it send to my client? That the lawyers have more important things to discuss? That we're all part of a club, and we're just going to chat?
The conviction was overturned and a new trial ordered. Even judges forget the law at times, but they don't often enough have the patience to allow the parties to raise issues on this type of topic. Speaking truth to power is difficult. If you see something happening in court that raises red flags for you, let me know, it's my job to make sure your rights are being protected. And if even then you are not satisfied, remember you have a voice too. Judges don't like it when clients talk over their lawyer's, but I for one would rather that, then letting something slip by that shouldn't. Read the case, R v Poulos, it's a good lesson in the law.
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Neither implication sits well with me. When you go into court with me, I am with you, not my buddy from law school, who is the Crown, and not the judge, whom I may have met a time or two at a conference or social event run by the law society. I'm with you.
And you should be able to expect that you can trust the players in the courtroom not to do anything that bends the rules. Remember that, and speak up if something doesn't feel right. I will be able to explain it or put a stop to it.
In Poulos, when lawyers re-convened in the judges chamber, the judge actually suggested a plea bargain, after saying that he thought the witnesses had done pretty well. Two things are wrong with this: first the judge is not supposed to pre-judge the case until all the evidence is in, and second, he is not to communicate any of his initial impressions to anyone prior to all the evidence being in. Finally, he is not to engage in plea talks, unless the parties wish to have a mid-trial JPT (judicial pre-trial), and even then that JPT would be in front of a different judge, just to avoid the kind of prejudice that was created in this case.
Oh and one more thing: The Accused was NOT part of the discussion. The case was being steered towards a conclusion, off the record, and the accused, whose liberty hangs in the balance, was not even present. When the parties returned to the courtroom (no plea agreed to), none of the proceedings in chambers were put on record. In total, that's a violation of s.650.(1). The Court of Appeal stated its assessment very clearly at paragraph 12: