


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    the complainant or a witness shall not be published in any document or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. Schofield, 2012
    ONCA 120

DATE: 20120222

DOCKET: C50780

OConnor A.C.J.O. and MacPherson and Rouleau
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Thomas Schofield

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the
    appellant

Elise Nakelsky, for the respondent

Heard:  February 10, 2012

On appeal from the conviction by Justice Alexander Sosna
    of the Superior Court of Justice dated May 22, 2009 and the sentence imposed on
    January 10, 2010.

MacPherson J.A.
:

A.

introduction

[1]

In 2008, the appellant was charged with four counts of indecent
    assault.  The Crowns position was that the appellant had sexually abused four
    young girls who had lived in his neighbourhood in the Oshawa area in the early
    1970s.  Following a 12-day judge-alone trial, the appellant was convicted on
    two charges and acquitted on two other charges. The trial judge imposed a
    sentence of 3 ½ years imprisonment.

[2]

At the appeal hearing, the appellants principal ground of appeal was
    that the trial judge had convened a mid-trial conference in his chambers
    involving himself and both counsel.  The trial judge expressed his opinion
    about both the weakness of the appellants testimony and some problems with the
    Crown case and urged counsel to try to resolve the case.

[3]

The appellant was not present at this in-chambers conference. The
    appellant contends that this violated s. 650(1) of the
Criminal Code
which provides that an accused  shall be present in court during the whole of
    his or her trial.

[4]

The Crown concedes that, given the contents of the discussion in the
    in-chambers conference, s. 650(1) of the
Criminal Code
was violated. 
    However, the Crown contends that this is a proper case for the application of
    the proviso in s. 686(1)(b)(iv) of the
Code
to preserve the verdict.

[5]

If the appellant was successful on this ground of appeal, the remedy
    would be an order for a new trial.  However, the appellant also submits that
    the trial judges conviction with respect to two complainants was an
    unreasonable verdict.  If successful on this ground of appeal, the remedy would
    be an acquittal.

[6]

At the conclusion of the oral argument at the appeal hearing, the court
    announced that the appeal would be allowed on the s. 650(1) issue, that the
    proviso would not be applied, and that the unreasonable verdict ground of
    appeal failed.  Accordingly, the court would order a new trial.

[7]

The court indicated that reasons in support of these conclusions would
    follow shortly.  These are the reasons.

B.

discussion

(1)

The s. 650(1) issue

(a)

Facts

[8]

After the conclusion of the Crown case, including the testimony of the
    four complainants, the appellant chose to testify. As soon as he finished his
    testimony, his wife testified.  After her testimony, the court rose for the
    lunch break.

[9]

During the lunch break, the trial judge summoned both counsel to his
    chambers.  The appellant did not attend.

[10]

Both
    trial counsel were very experienced counsel. The Crown counsel, Paul Murray,
    had 17 years experience; defence counsel, Alan Risen, had 34 years experience.

[11]

The
    chambers discussion was not recorded. Nor did anyone, judge or counsel, refer
    to it after court resumed in the afternoon. However, both counsel provided
    affidavits for the purpose of the appellants fresh evidence application on the
    appeal and both were cross-examined on their affidavits. The result is a fairly
    clear and uncontentious description of the purpose and contents of the
    in-chambers conference initiated by the trial judge.

[12]

In
    his affidavit, Mr. Risen states:

6.       In the privacy of his chambers, the trial Judge
    initiated a discussion in which he encouraged me to resolve the case.  Although
    I cannot remember the exact words that he used, the message which the trial
    Judge conveyed was unequivocal; that this was the last opportunity for the Applicant/Appellant
    to resolve the case, and to minimize the potential sentence that he would face
    if he were convicted at the conclusion of the trial.  I clearly recall the
    trial Judge commenting that the Applicant/Appellant didnt do too well in
    cross-examination, or words to that effect.  In response, I advised the Judge
    that several defence witnesses would be called, who would confirm essential
    aspects of the Applicant/Appellants evidence and contradict the evidence of
    the complainants.  I also pointed out that there were serious contradictions
    and inconsistencies in the evidence of the complainants.  Notwithstanding my
    comments, I was left with the understanding that the trial Judge was strongly
    suggesting that the defence case had been seriously undermined by the poor
    performance of the Applicant/Appellant in the witness stand.

7.       The trial Judge then indicated to the Crown that there
    were also some problems with the Crowns case.  This appeared to me to be an
    attempt by the Judge to encourage the Crown to engage in resolution discussions
    with the defence.

8.       The issue of sentence was not discussed and the trial
    Judge offered counsel the opportunity to speak to another jurist about a
    possible resolution.  He advised that Justice Shaughnessy was free to discuss
    the matter.  In light of subsequent instructions which I received from the
    Applicant/Appellant, this was not pursued.  The sole purpose of the trial Judge
    initiating the attendance of counsel in chambers was to encourage resolution. 
    No other issues were raised by the trial Judge at this time.

[13]

After
    the in-chambers conference, which lasted about 5 to 10 minutes, counsel had a
    discussion outside chambers.  Mr. Risen told Mr. Murray that he was
    uncomfortable with the meeting with the judge and felt that it put him in a very
    difficult position with his client who had just testified and had always
    maintained his innocence.  Mr. Murray responded with an offer of a recommended
    conditional sentence if the accused pleaded guilty to three of the four
    offences.  Mr. Risen discussed this option with his client and wife.  The
    accused rejected the offer and the trial continued that afternoon with more
    defence witnesses.

(b)
The law

[14]

In
    its factum, the Crown says this:

The respondent concedes that the appellant should not have been
    excluded from the in-chambers discussion.  Any conversation ought to have taken
    place in the appellants presence, in open court, and on the record.

[15]

In
    my view, this is an appropriate concession that flows naturally from the
    leading cases interpreting s. 650(1) of the
Criminal Code
.

[16]

The
    leading case in this area is the decision of this court 30 years ago in
R.
    v. Hertrich
(1982), 137 D.L.R. (3d) 400.  In that case, Martin J.A.
    discussed the rationale for a predecessor to the current s. 650(1), at p. 426:

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:
R. v. Lee Kun
(1915), 11 Cr.
    App. R. 293.  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.  Indeed, in my view, an examination of the Canadian
    decisions shows that the latter principle is, in fact, the implicit and
    overriding principle underlying those decisions.

In
R. v. Barrow,
[1987] 2 S.C.R. 694, at 706-707,
    Dickson C.J.C. cited and specifically endorsed this passage from
Hertrich
.

[17]

In
    several major cases, appellate courts have held that the openness principle set
    out in
Hertrich
requires the presence of the accused at discussions
    held in a judges chambers: see, for example,
R. v. James,
2009 ONCA
    366, 95 O.R. (3d) 321;
R. v. Simon
, 2010 ONCA 754, 104 O.R. (3d) 340;
R.
    v. F.E.E.
, 2011 ONCA 783, 286 O.A.C. 109;
R. v. Walker
2010 SKCA
    84, 258 C.C.C. (3d) 36.

[18]

Not
    every in-chambers discussion is prohibited, especially if the discussion is of
    a preliminary nature, does not involve any final determination and is recounted
    in open court in the presence of the accused: see
Simon
at para.
    117.  The test in each case is whether the context and contents of the
    in-chambers discussions involve [the accuseds] vital interests: see
Hertrich
at p. 428.

[19]

In
    this case, the Crown concedes, properly in my view, that the in-chambers
    discussion about possible resolution affected the vital interests of the
    accused.  It could hardly be otherwise, given the trial judges explicit
    comments about his impressions of the accuseds own testimony.

[20]

Before
    leaving this issue, I want to make one other observation.  The first problem
    with the in-chambers conference in this case is the one I have just discussed:
    because of s. 650(1), it needed to take place in the presence of the accused.

[21]

In
    my view, there is a second, and equally serious, problem with the in-chambers
    conference.  That problem is the actual contents of the discussion and, in
    particular, the trial judges negative comments about the appellants
    just-finished testimony.  Those comments, even if they had been made in the
    presence of the appellant, seriously compromised the trial judges
    impartiality, particularly since this was a judge-alone trial.

[22]

An
    almost identical situation arose many years ago in
R. v. Roy
(1976),
    32 C.C.C. (2d) 97 (Ont. C.A.).  In mid-trial, a trial judge called counsel into
    his chambers, made comments about the evidence, and encouraged counsel to
    consider a plea resolution.  No resolution was achieved, the trial continued,
    and the accused was convicted.

[23]

On
    appeal, this court set aside the conviction and ordered a new trial.  In reasoning
    that stands the test of time and, in my view, is apposite to this appeal,
    Brooke J.A. said at pp. 98-99:

A judge conducting a trial without the intervention of a jury
    is of course the trier of fact and determines the question of guilt or
    innocence.  In my opinion he cannot initiate such a discussion after entering
    upon the trial and hearing evidence and still preserve the appearance of
    impartiality and being of an open mind, which qualities are so essential to a
    fair trial and the meaning of the presumption of innocence.  The fact that he
    initiates such a discussion and sends counsel to the accused with talk of pleas
    of guilty and terms of sentence could reasonably result in apprehension by the
    accused that the judge presiding at his trial had reached some conclusions
    about the case.  It does not hurt to repeat again that justice must appear to
    be done.  This is not limited simply to what is seen from the floor of the
    courtroom or by the public but includes what transpired here.  It is also vital
    that justice must appear to be done, to the accused man in particular.  In
    those circumstances we think the trial lacked this quality and therefore it
    cannot stand.

(c)
The proviso

[24]

The
    Crown contends that the proviso in s. 686(1)(b)(iv) of the
Criminal Code
should be applied in this case because the appellant has failed to demonstrate
    any prejudice flowing from his absence at the in-chambers discussion, either in
    terms of his ability to properly defend himself and receive a fair trial or the
    broader sense of prejudice to the appearance of justice.

[25]

The
    test for the application of the proviso was enunciated by Watt J.A. in
Simon
,
    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.

[26]

The
    exclusion of the appellant from the in-chamber discussion was deliberate; the
    trial judge invited only counsel to the meeting.

[27]

Defence
    counsel did not initiate the exclusion of his client; nor did he concur in the
    exclusion.

[28]

The
    subjects discussed in-chambers in the absence of the accused were not repeated
    on the record; however, they were reported to the accused by his counsel.

[29]

The
    discussions involved very important substantive matters, including the trial
    judges stated impressions of the accuseds testimony.

[30]

In
    my view, the in-chambers discussion had a profound effect on the apparent
    fairness of the trial proceedings.  On this point, I adopt what Richards J.A.
    said in
Walker
, at para. 36:

In my view, this is the sort of situation where larger concerns
    about the administration of justice operate to render s. 686(1)(b)(iv)
    inapplicable.   The trial judge in this case no doubt acted
    innocently and there is no suggestion that she was biased or impartial in fact. 
    However, this is not the point.  The perception of fairness and
    impartiality is an essential characteristic of the criminal justice system and
    it must be guarded rigorously. The decision to provide counsel with an
    assessment of the case and inquire about the state of plea bargaining
    necessarily worked to significantly undercut the important notion that justice
    must not only be done, but must be seen to be done.  The judge was
    presiding over a criminal trial.  It was critical that she be perceived as
    being wholly impartial and as not having prejudged the outcome of the
    proceedings.

[31]

On
    the final factor, there is no suggestion that the in-chambers discussion had
    any effect on decisions about the conduct of the defence.  The trial continued
    and the defence called the rest of its witnesses.

[32]

Taking
    these factors together, in my view they tell strongly in favour of the
    appellant.  He was excluded from an in-chambers conference where the trial
    judge explicitly discussed his testimony.  Moreover, the trial judges
    commentary about his testimony was negative.  The result is that the appearance
    of judicial impartiality was compromised.  Accordingly, the proviso in s.
    686(1)(b)(iv) should not be applied.

(2)
The unreasonable verdict
    issue

[33]

It
    is necessary to address this issue because the result of the appellants
    success on the first ground of appeal is an order for a new trial.  If the
    appellant is successful on its unreasonable verdict ground of appeal, the
    result would be an acquittal.

[34]

The
    appellant submits that the trial judge ignored vital defence evidence provided
    by witnesses other than the appellant that contradicted material aspects of the
    Crown case, erred by repeatedly ignoring or forgiving internal inconsistencies
    in the evidence of the Crown witnesses, and did not recognize that certain
    aspects of the complainants allegations were highly improbable and warranted
    consideration by the trial judge as to their credibility and reliability.

[35]

I
    do not accept this submission.  This was a difficult trial.  It involved events
    that took place about 35 years before the trial and related to alleged sexual
    activity involving very young girls.  In my view, the trial judge was acutely
    aware of the difficulties of proof in such a case.  His reasons are
    comprehensive and balanced and support the conclusions he reached.  Indeed, on
    the record before him, the two acquittals and two convictions are entirely
    reasonable.  Accordingly, I would dismiss this ground of appeal.

C.

Disposition

[36]

I
    would grant the appellants application to admit the fresh evidence relating to
    the in-chambers conference, allow the appeal, set aside the convictions, and
    order a new trial.

Released: February 22, 2012 (D.OC.)

J.C. MacPherson J.A.

I agree D. OConnor A.C.J.O.

I agree Paul Rouleau J.A.


