



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poulos, 2015 ONCA 182

DATE: 20150317

DOCKET: C53022

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Poulos

Appellant

David Humphrey, for the appellant

Amy Alyea, for the respondent

Heard: February 11, 2015

On appeal from the convictions entered on November 10,
    2010 by Justice C.D.A. McKinnon of the Superior Court of Justice, sitting
    without a jury.

LaForme J.A.:

INTRODUCTION

[1]

After a two-day trial, the trial judge convicted the appellant on two
    counts of sexual assault. The two complainants had waitressed at the
    appellants restaurant during different times. Both testified that they quit
    their jobs because they could not tolerate the appellants sexual touching and
    sexual comments.

[2]

After the Crown led evidence from the two complainants and closed its
    case, the trial judge asked to see counsel in his chambers and suggested a plea
    bargain. The appellant was not present during this discussion. The matters
    discussed in chambers in the appellants absence were not repeated on the
    record.

[3]

The appeal turns on the propriety of this judge-initiated mid-trial
    discussion. The appellant seeks to introduce fresh evidence to establish that the
    trial judges conduct deprived him of his right to be present throughout his
    trial as guaranteed by s. 650(1) of the
Criminal Code
, which requires
    the presence of an accused during the whole of his or her trial. He also
    argues that the mid-trial discussion, in conjunction with the trial judges
    questioning of a defence witness, gives rise to a reasonable apprehension of
    bias.

[4]

The fresh evidence consists of affidavits sworn by the appellant,
the appellants son (a civil lawyer), the

trial
    Crown and the trial defence counsel, and a transcript of the cross-examination
    on each affidavit.

[5]

Each of the affidavits describes the trial judges in-chambers comments
    in a slightly different way, but the essence remains the same. The trial judge
    said that the two complainants had testified well or had been "good
    witnesses". He then observed that the complainants had testified to
    relatively minor assaults and suggested that the parties resolve the case by
    guilty pleas

to common assault.

[6]

The appellant recalls that his trial counsel reported to him after the
    meeting and told him that the trial judge said he was impressed with the two
    complainants and that the defence faced an "uphill battle". The trial
    judge suggested that the Crown and the defence work out a plea to common
    assault.

[7]

When court convened for the afternoon session, the trial resumed without
    anyone referencing the in-chambers discussion. The defence called a number of
    witnesses, including several who testified to the appellants reputation for
    honesty. The appellant also testified and denied the allegations. The trial
    judge convicted him of sexually assaulting both complainants.

ISSUES

[8]

The appellant raises three related grounds of appeal: (i) the trial
    judge exhibited a reasonable apprehension of bias; (ii) the trial judge
    excluded the appellant
from a portion o
f his trial contrary to s. 650(
1) of the
Criminal Code
;
and
(iii)
the trial judge created the appearance of prejudgment
    and unfairness by asking challenging questions of
a
defence witness.

1.  The Crowns position

[9]

The Crown concedes that the mid-trial in-chambers discussion fell
    outside the exceptions to s. 650(1). However, she argues that the evidence as a
    whole, including the fresh evidence, demonstrates that the appellant did not suffer
    prejudice and that the mid-trial conference did not create a reasonable
    apprehension of bias. Therefore, the
curative proviso
at s.
    686(1)(b)(iv) of the
Criminal Code
should apply. She offers a number
    of points in support.

[10]

First,
    the in-chambers discussion was brief and neither experienced defence counsel
    nor anyone else adverted to the appellants absence. Second, defence counsel
    immediately apprised the appellant of the discussion. Third, defence counsel
    did not apply for a mistrial nor did he discuss that possibility with the
    appellant. In his view, there were no grounds for a mistrial. Fourth, by his
    comments in the meeting, the trial judge does not appear to have made up his
    mind about the outcome of the trial. Fifth,
the appellant did
    not modify his behaviour as a result of the in-chambers meeting  he always
    intended to and in fact did plead not guilty, testify and call evidence.

[11]

In sum, the Crown argues, the mid-trial discussion had no apparent
    or actual effect on trial fairness.

[12]

I
    disagree with the Crown and would allow the appeal. The appellant was excluded
    from a portion of his trial in violation of s. 650(1). At the close of the
    Crowns 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. Therefore, the
curative proviso
does not apply.

2.  The fresh evidence

[13]

Before
    addressing the merits of the appeal, I propose to speak to the appellants
    fresh evidence application. In support of his application, the appellant relies
    on the well-known test
for admission of fresh
    evidence set out in

R
.

v.
Palmer
(1979), [1980] 1 S.C.R. 759, at 775
.
Palmer
requires that the evidence:  (i)
    could not, through the exercise of due diligence, have been adduced at trial;
    (ii) must be relevant in that it bears on a decisive or potentially decisive
    issue; (iii) must be reasonably capable of belief; and (iv) must be such that,
    if believed, it could reasonably be expected to have affected the result at
    trial.

[14]

The
Palmer
criteria speak to new evidence tendered in relation to a
    factual or legal issue at trial. The
Palmer
criteria do not apply
    where, as here, a party submits fresh evidence to attack the validity of the
    trial process. In such a case, the court will admit the fresh evidence as long
    as it complies with the normal rules of evidence: see
R. v. W.(W.)
(1995), 25 O.R. (3d) 161 (C.A.), at 169-70; see also
R. v. Taillefer
,
    2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 76-77.

[15]

As
    my colleague, Doherty J.A., noted in
W.(W.)
, at paras. 169-70, this
    court's authority to receive evidence on appeal resides in s. 683(1) of the
Criminal

Code
, which provides that the court may receive evidence on appeal
    where it is "in the interests of justice" to do so. The
    "interests of justice" in this case require that the court admit the
    affidavits and the cross-examinations on those affidavits to determine whether the
    mid-trial in-chambers discussion in the absence of the appellant violated s.
    650 and prejudiced the appellants right to a fair trial.

[16]

I
    will now turn to the merits of the appeal.

ANALYSIS

[17]

On
    the facts of this case, the appellant was denied his right to be present in
    court during the whole of his... trial. T
he 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 accuseds 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
    [accuseds] 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.

The s. 650(1) breach and the
curative proviso

[22]

This
    case is very similar to
R. v. Schofield
, 2012 ONCA 120, 109 O.R. (3d)
    161, where this court made it abundantly clear that a breach of s. 650(1), in
    circumstances such as those on this appeal, is fatal to trial fairness.

[23]

MacPherson
    J.A. writing for the court, observed that an in chambers discussion with
    counsel about a possible plea clearly affected the appellants vital interests
    and triggered his right to be present under s. 650 of the
Criminal Code
.
    He further held that the absence of the accused during those discussions, that
    were vital to his interests, undermined the fairness and openness of the trial.

[24]

I agree with my colleagues analysis. An accused is entitled to
    have first-hand knowledge of matters vital to his interests as they unfold at
    trial so that he can properly seek and receive legal advice and otherwise
    properly exercise his right to make full answer and defence. Furthermore the
    accuseds presence, when matters vital to his interests are being discussed,
    brings a transparency and appearance of fairness to those proceedings that
    would otherwise be lacking
.

[25]

In my view,
Schofield
has direct application here. Just
    as in
Schofield
, the in chambers discussions in the absence of the
    accused violated s. 650. And, just as in
Schofield
, the Crown cannot
    demonstrate that the violation of s. 650 did not prejudice the appellant.

CONCLUSION

[26]

In
    this case, the trial judge,
after hearing the testimony of two
    Crown witnesses,
initiated a mid-trial discussion in the absence of the
    accused about a possible plea bargain. The discussion was a manifest breach of
    s. 650(1). Though he acted with the best of intentions, the trial judge
    undercut the presumption of innocence and compromised trial fairness. In such
    circumstances, I would not apply the
curative proviso
under s.
    686(1)(b)(iv).

DISPOSITION

[27]

For
    the above reasons, I would admit the fresh evidence and allow the appeal. I
    would set aside the convictions and order a new trial.

Released: DD MAR 17 2015

H.S. LaForme J.A.

I agree. Doherty
    J.A.

I agree. E.A. Cronk
    J.A.


