



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), (2.1),
    (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as soon as
    feasible, inform the victim of their right to make an application for the
    order; and

(b) on
    application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18.

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. D.Q., 2021 ONCA 827

DATE: 20211122

DOCKET: C68138

MacPherson, Simmons and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.Q.

Appellant

Andrew Furgiuele, for the appellant

Frank Au, for the respondent

Heard: November 1, 2021 by video conference

On appeal from the convictions entered
    on November 20, 2019 by Justice Robert B. Reid of the Superior Court of Justice.

MacPherson
    J.A.:

A.

Introduction

[1]

The appellant was convicted of several sexual
    offences. At his trial, the appellant testified. During his testimony, the Crown
    proposed to ask him questions about prior sexual activity. Defence counsel
    objected. The Crown suggested that the appellant should be excluded from the
    courtroom while the objection was being discussed. The trial judge agreed.
    Defence counsel did not object. The trial judge ordered the appellant to leave
    the courtroom. After very brief submissions (probably a minute at most), the
    trial judge made a brief ruling (one paragraph) prohibiting the proposed line of
    questions. The trial continued.

[2]

The parties agree that the exclusion of the
    appellant during a portion of his trial was a clear violation of s. 650(1) of the
Criminal Code
which provides, in relevant parts, an accused  shall
    be present in court during the whole of his or her trial.

[3]

The respondent Crown seeks to save the
    conviction on the basis of the proviso in s. 686(1)(b)(iv) of the
Criminal
    Code
. The appellant resists this argument on the merits. In the
    alternative, the appellant contends that this should not be considered under
    the proviso rubric; rather, relying on a fairly recent decision of the New
    Brunswick Court of Appeal, the appellant contends that the proper analytical
    framework for this and similar cases should be a combination of sections 7, 11(d)
    and 24(1) of the
Canadian Charter of Rights and Freedoms
.

B.

facts

(1)

The parties and events

[4]

The appellant was charged with one count each of
    sexual assault, sexual interference, and invitation to sexual touching. The
    appellant was in high school at the time of the alleged incidents and was
    around 16 or 17 years old. The complainant was about 10 to 12 years old at the same
    time.

[5]

The appellant was a babysitter for the
    complainant and his younger brother at the time of the incidents. The evidence
    was that the younger brother was asleep during the incidents and no one else
    was at home.

[6]

The complainants testimony at trial was that the
    appellant told him about a game of truth or dare that he played with some of
    his teenage friends. The appellant used this game as a basis for suggesting to
    the complainant that they engage in various sexual activities. According to the
    complainant, sexual activities included the complainant stroking the appellants
    erect penis and putting his mouth on it. The complainant also testified that
    the appellant would perform oral sex on him. These activities took place in
    several locations throughout the house, including a living room chair, the
    basement, a bathtub, and the complainant's bedroom.

[7]

The complainant testified that the appellant was
    never violent or abusive; he was simply a nice and pleasant guy. The
    complainant felt he had no choice but to participate. Aside from mentioning one
    incident to the appellants brother, the complainant did not tell anyone about
    the sexual incidents until 21 years later.

(2)

The appellants exclusion from the trial

[8]

The appellant testified at trial. He strongly
    denied all of the complainants allegations. During his cross-examination, the
    Crown introduced the topic of the appellants prior sexual history when he was a
    younger teenager and even pre-teen. This led to an objection by defence
    counsel, a request by the Crown, and a ruling by the trial judge. All of this
    took place in about two or three minutes and is recorded in two pages of trial
    transcript, which I set out as follows:

Q.      Were you ever sexually active with
    her? [a previous elementary school girlfriend]

A.      I mean, we were very young so to say
    sexually active, I mean, we kissed, we held hands. Very light petting.

Q.      What's  what is "petting"
    mean?

[Defence counsel]:          I don't know  I
    don't know how relevant all of this is, Your Honour; where my...

THE COURT:        [Crown]?

[Defence counsel]:          ...friend is going
    with this.

[Crown]:       It's  well, perhaps we can ask
    the witness to step out.

THE COURT:        All right.

[Defence counsel]:          Well, these.....

THE COURT:        [D.Q.], perhaps you can just
    step outside the courtroom. Dont go far away.

A.      Okay.

THE COURT:        We'll have a discussion and
    we'll get you back in.

...WITNESS IS EXCUSED

[Crown]:       Your Honour, I think [D.Q.]s
    sexual history, particularly as a young child, a teen, preteen, a teenager, is
    relevant to whether or not he would be sexually active at 17  at 18 years old,
    for instance, when these allegations were made. So I just want to know if he is
     was sexually active throughout his younger years. The allegations are that he
    was having oral sex and masturbating the complainant. I think it's relevant to
    know when he became sexual active. And if he was, when he was babysitting or
    during the time period he was babysitting the  the complainant.

[Defence counsel]:          Does my friend
    suggest if he was an active sexual teenage boy, that he's more likely to have
    sexually assaulted a young boy?        I mean, that  there's no connection to
    that. I mean, if he's a teenager where he's sexually active, does that make him
    more likely to have committed this offence? There's no correlation, in my
    respectful submission.

R U L I
    N G

[Trial judge]
(Orally)

We have an individual, who at that age of 16
    or 17, has said that he had a relationship most of his high school years and
    prior to that had another relationship during elementary school. When he became
    sexual active, it seems to me, is of very minimal, if any, relevance to this inquiry.
    It would not be surprising that any 16 or 17 year old boy in high school with a
    relationship with another individual is engaged in some form of sexual
    activity. I'm not suggesting intimate sexual activity. That's just the way it goes.
    And I think I can take judicial notice of that. When or whether that
    relationship existed with another person in elementary school, I think has no
    bearing on this inquiry.

[Crown]:       Thank you, Your Honour.

[Defence counsel]:          Thank you.

THE COURT:        Let's have [D.Q.] back in
    the courtroom, please.

...WITNESS RESUMES STAND

[9]

The appellants sole ground of appeal relates to
    the trial judges ruling excluding him from a portion of his trial.

C.

issues

[10]

Although there is substantial intersection and
    overlap between the two issues advanced by the appellant on this appeal, I
    propose to address them in this order:

1.

Did the exclusion of the appellant from a
    portion of his trial violate s. 650(1) of the
Criminal
    Code
and, if so, should this error be remedied by
    application of s. 686(1)(b)(iv) of the
Criminal
    Code
?

2.

Did the exclusion of the appellant from a
    portion of his trial violate ss. 7 and 11(d) of the
Charter
and, if so, should this error
    be remedied by an application of s. 24(1) of the
Charter
?

D.

analysis

(1)

The proviso issue

[11]

The parties agree that s. 650(1) of the
Criminal Code
was breached in the
    appellants trial. The Crown should not have requested that the appellant be
    ordered to leave the courtroom during his own testimony. Defence counsel should
    have opposed this request. The trial judge should not have made the order.

[12]

The Crowns sole response to this state of
    affairs is reliance on s. 686(1)(b)(iv) of the
Criminal Code
which provides:

686(1) On the hearing of an appeal
    against a conviction  the court of appeal



(b) may dismiss the appeal where



(iv) notwithstanding any
    procedural irregularity at trial, the trial court had jurisdiction over the
    class of offence of which the appellant was convicted and the court of appeal
    is of the opinion that the appellant suffered no prejudice thereby .

[13]

The Crowns position is that the trial judges
    order briefly excluding the appellant from his trial caused him no prejudice.

[14]

Fortunately, there is a good deal of case law
    from the Supreme Court of Canada, this court, and other provincial appeal
    courts dealing with the interplay between ss. 650 and 686(1)(b)(iv) of the
Criminal Code
. I propose to consider
    some of that case law and then apply it to this appeal.

[15]

An early leading case was the decision of this
    court in
R. v. Hertrich
(1982), 67 C.C.C. (3d) 510 (Ont. C.A.), a case involving a trial
    judge interviewing, without the accused being present, two jurors about two
    anonymous telephone calls one of them had received the day before. Martin J.A.
    eloquently described the underlying rationale for s. 577, the predecessor
    section to the present s. 650 of the
Criminal Code
, at para. 81:

The essential reason the accused is entitled
    to be present at his trial is that he may hear the case made out against him,
    and, having heard it, have the opportunity of answering it.  The right of the
    accused to be present at his trial, however, also gives effect to another
    principle. Fairness and openness are fundamental values in our criminal justice
    system. 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]

The leading decision of the Supreme Court of
    Canada in this domain is
R. v. Barrow
, [1987] 2 S.C.R. 694, a case involving a trial judge considering
    claims for exemption from the jury panel in the courtroom but out of earshot of
    all counsel and the accused.
[1]
In
Barrow
, at para. 20,
    Dickson C.J. endorsed Martin J.A.s two important principles that underlie s.
    577, and continued, at para. 48:

It is important for the accused to see and
    hear the entire process by which he or she is tried so that he or she sees that
    the trial is fair.  The public perception of the fairness of the trial process
    would be damaged if potential jurors were excluded after private conversations
    with the judge.  Finally, the trial judges error in this case was of a
    fundamental nature and therefore the curative provisions in  the
Code
should not be applied.

[17]

In Ontario, there are three leading cases
    dealing with the interplay between ss. 650 and 686(1)(b)(iv) of the
Criminal Code
.

[18]

In
R. v. Simon
, 2010 ONCA 754, in a second degree murder trial, the trial judge
    discussed his proposed jury instructions in chambers with counsel but without
    the accused.

[19]

Watt J.A. determined that the chambers
    discussion was part of the trial; he said, at para. 109:

To determine whether something that happened
    in the course of a trial was part of the trial for the purposes of s. 650(1)
    requires an examination of whether what occurred affected the vital interests
    of the accused. No one can gainsay that what was discussed here, the
    contents of final jury instructions, affected the vital interests of the
    appellant.

[20]

Turning to the potential application of the
    proviso, Watt J.A. said, at paras. 118-19:

Where something takes place in the absence of
    the accused that is part of the trial for s. 650(1) purposes, it does not
    inevitably follow that a new trial must be ordered if the accused is
    convicted.

Section 686(1)(b)(iv) of the
Criminal
    Code
came into force on December 4, 1985. Its real focus seems to
    have been to inter the jurisprudence that regarded procedural errors that
    caused trial courts to lose jurisdiction as incurable, even on appeal:
R.
    v. Khan
, [2001] 3 S.C.R. 823, at para. 12. Its embrace includes but is not
    limited to the procedural irregularity caused by the absence of the accused
    during his or her trial.

[21]

Watt J.A. continued by articulating a test that
    could be applied when considering whether the proviso should be applied in a
    case where s. 650 of the
Criminal Code
has been breached. He said, at para. 123:

To determine whether a breach of s. 650(1) may
    be salvaged by the application of the proviso in s. 686(1)(b)(iv) requires
    a consideration of all the circumstances surrounding the violation. Relevant
    factors may include, but are not limited to: (i) the nature and extent of the
    exclusion, including whether it was inadvertent or deliberate; (ii) the role or
    position of the defence counsel in initiating or concurring in the exclusion;
    (iii) whether any subjects discussed during the exclusion were repeated on the
    record or otherwise reported to the accused; (iv) whether any discussions in
    the accuseds absence were preliminary in nature or involved decisions about
    procedural, evidentiary or substantive matters; (v) the effect, if any, of the
    discussions on the apparent fairness of trial proceedings; and (vi) the effect,
    if any, of the discussions on decisions about the conduct of the defence.

[22]

In the second Ontario case
, R. v. E. (F.E.)
, 2011 ONCA 783, the
    accused was excluded during the entire pre-jury charge conference in the trial
    judges chambers. He was also excluded during a brief period (about nine
    minutes) regarding discussions about a potential question being put to him
    during cross-examination.

[23]

On the broader issue, Watt J.A. spoke bluntly
    and ordered a new trial. He said, at para. 52:

Final instructions to a jury in a criminal
    case are of the utmost importance to the person whose liberty is at stake.
    Those instructions explain the basis upon which the accuseds liability will be
    decided and his or her defence assessed. An accused is entitled to hear
    why some instructions are included and others are omitted from the charge 
    first-hand, the complete version and not a synopsis after the fact. The
    exclusion of an accused from the entire pre-charge conference undermines both
    the appearance and the reality of the due administration of justice.

[24]

On the narrower issue, which is very similar to
    the issue on this appeal, the court reached a different conclusion. Watt J.A.
    said, at para. 44:

What happened here was that the intentional
    and understandable exclusion of a witness resulted in the exclusion of the
    appellant and a breach of s. 650(1) of the
Criminal Code
. This
    should not have occurred. An accused has the right to be present
    throughout the entirety of his or her trial, including during discussions
    pertaining to cross-examination. Nonetheless, in the circumstances of this
    case as I have described them, if this nine-minute exclusion stood alone, I
    would apply s. 686(1)(b)(iv) to the procedural irregularity and preserve
    the finding of guilt on the ground that the appellant suffered no prejudice
    from it.

[25]

In the third Ontario case,
R. v. D.B.
, 2012 ONCA 301, as in
E. (F.E.)
the accused was excluded from
    the courtroom during his cross-examination by the Crown while counsel made
    submissions about certain questions the Crown proposed to put to him. The trial
    judge permitted some of the questions to be asked. Later, the Crown brought the
    improper exclusion of the accused to the attention of the court. Defence counsel
    did not seek a mistrial or any other remedy.

[26]

On appeal, the Crown conceded that the accused
    should not have been asked to leave the courtroom. However, the court applied
    the proviso. Doherty J.A. said, at para. 17, that the questions asked after the
    accused returned to the stand were inconsequential to the result of the trial.
    He applied
E. (F.E.)
and concluded, at para. 19, that the appellant was not in any way prejudiced
    by his relatively brief absence from the courtroom during the trial.

[27]

Against this backdrop of relevant case law over
    an extended period, I turn to the application of the governing principles to
    the facts of this case. In my view, the best path forward is to apply the six
    factors identified by Watt J.A. in
Simon
.

[28]

The first factor  whether the exclusion of the
    accused was inadvertent or deliberate  favours the Crown. The exclusion was
    surely inadvertent in the sense that all three of the trial judge, Crown
    counsel and defence counsel simply forgot about s. 650 of the
Criminal Code
. If any one of them had
    remembered s. 650, the exclusion of the appellant would not have happened.

[29]

The second factor favours the Crown. Defence
    counsel did not object to the brief exclusion of his client during his
    cross-examination.

[30]

The third factor favours the appellant. It
    appears that when he returned to the stand after his brief departure, nothing
    about the subject discussed during his absence was put on the record or reported
    to him.

[31]

The fourth factor favours the appellant. The
    discussion in the absence of the accused related to an evidentiary matter 
    namely, would the Crown be allowed to ask him questions about possible sexual
    activity in his elementary school years.

[32]

The fifth factor overwhelmingly favours the
    Crown. The accused was out of the courtroom for about two minutes. The trial
    judges ruling was 100 percent in his favour; the Crown was prohibited from
    asking questions of the accused in the category he proposed.

[33]

The sixth factor also strongly favours the
    Crown. The very brief discussion in the courtroom in the absence of the accused
    and the trial judges ruling entirely in his favour had no effect on the
    conduct of the defence. Indeed, the trial judges ruling helped the defence.

[34]

Stepping back and considering these factors
    together, I conclude that they strongly support application of the proviso in
    this case. In the words of the sports community, No harm, no foul. Or, as
    expressed more elegantly by Hall J.A. in a leading case dealing with the
    proviso in British Columbia,
R. v. Bagadiong
, 2013 BCCA 538, at para. 40: a refusal to apply the curative
    provision in the present case would be a triumph of form over substance.

(2)

The
Charter
issue

[35]

The appellants alternative submission is that
    his exclusion for a portion of his trial violates ss. 7 (liberty  and the
    right not to be deprived thereof except in accordance with the principles of
    fundamental justice) and 11(d) (fair and public hearing) of the
Charter
. In making this submission, the
    appellant relies on a decision of the New Brunswick Court of Appeal,
R. v. Dedam
, 2018 NBCA 52.

[36]

In
Dedam
, the appellant was excluded from his trial on nine separate
    occasions and for a variety of reasons. As explained by Quigg J.A., at paras. 1
    and 5:

[O]n no less than
nine
occasions
    Mr. Dedam was excluded from his trial.



The occasions of exclusion can be divided into
    four types: (1) when scheduling issues were addressed in the judges chambers;
    (2) during legal arguments; (3) once when the judge and counsel engaged in a
    discussion the particulars of which are unknown; and (4) during the course of
    Mr. Dedams own testimony. [Emphasis in original.]

[37]

I note that on four of the nine occasions, the
    appellant was excluded from his trial while he was testifying.

[38]

Against this backdrop, Quigg J.A. considered relevant
    case law relating to ss. 7 and 11(d) of the
Charter
and concluded, at paras. 52 and 54:

[I]n certain instances, a violation of s.
    650(1) can amount to breaches of both ss. 7 and 11(d) of the
Charter
.
The egregious nature of some of the incidents where Mr.
    Dedam was excluded
, particularly in the course of his testifying, raises
    the violations of s. 650(1) to the level of
Charter
breaches.



In this particular case, there is no remedy
    short of setting aside the verdict and ordering a new trial that can correct
    the violations.
Mr. Dedams repeated exclusions in the

circumstances described above were egregious
. It may be that, in other circumstances, a different remedy would
    be appropriate, but that is not the case with respect to Mr. Dedam. [Emphasis
    added.]

[39]

In my view, it is not necessary to determine in
    this appeal whether there is a
Charter
route for considering the consequences of a judges exclusion of an
    accused from a portion of their trial, including, especially, during their
    testimony. I say this for two reasons.

[40]

First, the remedial framework under s.
    686(1)(b)(iv) of the
Criminal Code
is well-established and appropriate. For more than 30 years, courts
    from across the country, including the Supreme Court of Canada, this court, and
    other appellate courts, have considered the issue of a breach of s. 650 of the
Criminal Code
under the rubric of the
    proviso in s. 686 of the
Code
: see
Barrow
(1987),
Simon
(2010),
E. (F.E.)
(2011),
D.B.
(2012) and
Bagadiong
(2013)
. Resort to the
Charter
is, therefore, not necessary to fashion a remedy in appropriate
    cases.

[41]

Second, I observe that in the only case that
    applies a
Charter
ss.
    7, 11(d) and 24(1) analysis,
Dedam
, the language used to lead to a s. 24(1) result was anchored in
    observations such as: The egregious nature of some of the incidents where Mr.
    Dedam was excluded  raises the violations of s. 650(1) to the level of
Charter
breaches; Dedams repeated
    exclusions in the circumstances described above were egregious. Obviously,
    there was nothing egregious about the single brief mistake that was made during
    the appellants trial. Accordingly, it is not necessary to consider what might constitute
    a s. 7 or 11(d) breach and a s. 24(1) remedy in a different case.

E.

disposition

[42]

I would dismiss the appeal.

Released: November 22, 2021 J.C.M.

J.C.
    MacPherson J.A.

I
    agree. Janet Simmons J.A.

I
    agree.
I.V.B. Nordheimer J.A.





[1]

The events in
Barrow
took place in April 1983, which was prior to
    the 1985 enactment of the language in the current s. 686(1)(b)(iv) of the
Criminal Code
.


