Simon's Megalomaniacal Legal Resources

Criminal - Trial - Mandatory Attendence by Defendant [CCC 650(1)]

. R. v. Mills

In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident".

Here the court considers CCC 650(1) - which requires a defendant to be "present in court during the whole of their trial" - and related procedural facts:

[28] Section 650(1) of the Criminal Code requires an accused person to be “present in court during the whole of their trial”. This includes sentencing proceedings: see e.g., R. v. Petrovic (1984), 1984 CanLII 2003 (ON CA), 13 C.C.C. (3d) 416 (Ont. C.A.), at pp. 425-26. As Martin J.A. explained in R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 537, leave to appeal refused, [1982] S.C.C.A. No. 124:

[T]he characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests.

[29] This court has previously observed that s. 650 codifies a pre-existing common law right (see R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 34-35), and that “[t]he right to be present at one’s trial also has a constitutional footing”: R. v. S.M., 2022 ONCA 765, at para. 33; see also R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.

[30] The right to be present at trial in s. 650(1) is subject to a number of statutory exceptions. Most notably for present purposes, s. 650.01(1) permits criminal defendants to “appoint counsel to represent [them] for any proceedings under this Act by filing a designation with the court”. Section 650.01(3) then sets out the circumstances in which an accused person may appear by designated counsel rather than by appearing personally, while s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

[31] In this case, the June 29, 2021 appearance before the trial judge plainly engaged the appellant’s vital interests. The trial judge was evidently concerned about the possibility that his guilty plea three months earlier had not been adequately informed, and had arranged the June 29, 2021 appearance in order to conduct what would have effectively been a further plea inquiry.

[32] Although the trial judge had specifically requested that the appellant appear personally on June 29, 2021, the Crown argues that s. 650.01(3) nevertheless gave her jurisdiction to proceed in his absence, because his counsel had previously filed a designation, and because s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

[33] Even assuming that the appellant’s absence on June 29, 2021 did not cause the trial judge to lose jurisdiction, by virtue of s. 650.01, we are not satisfied that the existence of a designation cures the broader problem that arose when the trial judge conducted what was effectively a further plea inquiry with the appellant’s counsel, in the appellant’s absence. We reach this conclusion for four main reasons.

[34] First, while s. 650.01(3) permits guilty pleas to be taken in the accused’s absence, s. 650.01(3)(c) also creates a default presumption that the accused should be present, “unless the court orders otherwise”. Although the appellant had already entered his guilty plea months earlier, the trial judge evidently meant to use the June 29, 2021 appearance to conduct what would in effect be a further plea inquiry. She had also specifically directed that the appellant should attend personally by videoconference.

[35] Second, it is undisputed that the appellant’s trial counsel never told the appellant about the June 29, 2021 appearance. As far as the appellant knew, his case had gone over to August 5, 2021 for sentencing. Even though the appellant had previously signed a designation of counsel, it is debateable whether this gave trial counsel the authority to appear on the appellant’s behalf, without specific instructions, at a court appearance that the appellant had no idea was taking place.

....

[41] Fourth, in our view, the June 29, 2021 proceedings squarely engaged the animating purpose of the common law and statutory “presence” requirement. As Martin J.A. observed in Hertrich, at p. 537:

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.

See also R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at p. 706; R. v. M.C., at para. 37.

[42] The appellant ought to have been afforded the opportunity to be present on June 29, 2021. In her reasons for sentence given on August 5, 2021, the trial judge stated that she had heard “further submissions”, and that these submissions had satisfied her that the appellant:

... was aware of the impact this conviction could have on his immigration status and had given his counsel … informed instructions to continue with this sentencing process.

[43] The appellant was unaware that there had been a further court appearance where his knowledge of the impact of a conviction and sentence on his immigration status had been discussed in his absence. The submissions made on this occasion led the trial judge to incorrectly believe that the appellant had received immigration law advice from his trial counsel. Since he was not present at this appearance, the appellant had no opportunity to correct the record.

[44] Section 686(1)(a)(iii) permits us to allow a conviction appeal “on any ground where there was a miscarriage of justice”. We need not decide whether the appellant’s absence during the June 29, 2021 appearance violated his statutory right to be present during the whole of his trial under s. 650 of the Criminal Code, because we are satisfied that the proceedings that took place in his absence on this occasion gave rise to a miscarriage of justice: see R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 44.

[45] The Crown argues that even if the trial judge was misled about the appellant’s knowledge of the potential collateral immigration consequences of his guilty plea, “that does not undermine his designation, nor ought it to convert a procedural irregularity into a fatal breach of the [a]ppellant’s rights”.

[46] We disagree. Even if we assume that trial counsel had the authority under s. 650.01 to appear on the appellant’s behalf at the June 29, 2021 appearance pursuant to the designation, we are not persuaded that the appellant’s absence caused him no prejudice. It is possible that the appellant’s guilty plea might have been struck. Furthermore, the appellant’s absence at the June 29, 2021 appearance affected “the apparent fairness” of the proceedings: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 123, leave to appeal refused, [2010] S.C.C.A. No. 459.