Criminal - Trial - General. R. v. M.C.
In R. v. M.C. (Ont CA, 2023) the Court of Appeal considered the 'accused to be present during trial' provisions of CCC 650:
 M.C. argues that the trial judge erred contrary to s. 650 of the Criminal Code in excluding him from his trial when the trial judge received ex parte submissions from a third-party records holder during a s. 278 application that he had brought in aid of his defence (the “s. 650 error”). .... R. v. M.C.
 I will begin by reinforcing the importance of having the accused present during their trial. At common law “no trial for felony could take place except in the presence of the accused unless the accused by his misconduct rendered a trial in his presence impossible.”: R. v. Hertrich, (1982), 1982 CanLII 3307 (ON CA), 137 D.L.R. (3d) 400 (Ont. C.A.), at p. 415, leave to appeal refused,  2 S.C.R. x. In Hertrich, at p. 415, Martin J.A. described the right to be personally present at one’s trial of an indictable offence as “a fundamental principle of the criminal law.” Similarly, principles of natural justice, specifically the right to be heard (audi alteram partem), requires that courts and tribunals respect an individual’s right to be present at hearings: Supermarchés Jean Labrecque Inc. v. Flamand, 1987 CanLII 19 (SCC), 1987 SCC 19,  2 S.C.R. 219, at p. 238-239. This right ensures that individuals are given an opportunity to challenge the case and information brought against them, thereby satisfying the governing principle of fundamental justice: R. v. Suresh, 2002 SCC 1,  1 S.C.R. 3, at paras. 122, 127. This court has also affirmed that, “[p]rivate trials which exclude the accused are antithetical to [the] core value” of the perceived fairness of criminal trials: R. v. Laws, (1984), 1998 CanLII 7157 (ON CA), 41 O.R. (3d) 499 (C.A.), at p. 525; R. v. James, 2009 ONCA 366, 95 O.R. (3d) 321, at para. 20.
 The right of accused individuals to be present at their own trial has been codified in s. 650 of the Criminal Code, “not merely as an entitlement but as an imperative”: L.W.T. v. The Queen, 2008 SKCA 17, 230 C.C.C. (3d) 220, at para. 22. Section 650 provides, in material part:
s. 650(1) 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 their trial. [Emphasis added.] Even where s. 650 does not apply, the right of attendance is so important that judges are required to “adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence”, an obligation that may require the provision of “a redacted or summarized version of the evidence” or potentially the appointment of amicus curiae: R. v. Basi, 2009 SCC 52,  3 S.C.R. 389, at paras. 54-57.
 In Hertrich, at p. 426, Martin J.A. affirmed that the statutory right to attend the whole of one’s trial serves two purposes, the latter of which may be more important. The first interest is the opportunity attendance provides to an accused to hear the case being made out against them and to have an opportunity to answer it. The second interest is the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result, the denial of which “may well leave [the accused] with a justifiable sense of injustice”: Hertrich, at p. 426. Although this latter interest is expressed as concern for the perception of the accused as to the fairness of their trial, it is well understood that the appearance of fairness is to be judged objectively, and not based on the actual, subjective perspective of the accused: see R. v. Spiers, 2012 ONCA 798, 113 O.R. (3d) 1, at para. 32, R. v. Irving, 2012 ONCJ 234 at para. 14. In R. v. Barrow, 1987 CanLII 11 (SCC),  2 S.C.R. 694, at p. 705-706, Dickson C.J.C. adopted Martin J.A.’s conclusions about the purposes of s. 650. He then described the impact of the exclusion of an accused person from their trial on the public perception of the fairness of the trial as “crucial”: Barrow, at p. 715. Dickson C.J.C. further commented that an accused’s presence at trial is “of enormous importance to the perceived fairness of the Canadian criminal justice system”: Barrow, at p. 707.
 Given the importance of the presence of accused persons at their trials, a failure to comply with s. 650(1) is not simply a legal error. It is a jurisdictional error without the necessity of the accused showing that they suffered prejudice: R. v. Cloutier (1988), 1988 CanLII 199 (ON CA), 43 C.C.C. (3d) 35 (Ont. C.A.) at p. 42, leave to appeal refused,  S.C.C.A. No. 194. Such an error is so “fundamental” that, prior to 1985 when the Criminal Code was amended, the prevailing view was that the curative proviso in s. 686(1)(a)(iii), applicable to errors that occasion no substantial wrong or miscarriage of justice, was innately inapplicable: Meunier v. The Queen, (1965) 1965 CanLII 1161 (QC CA), 48 C.R. 14 (Que. Q.B.) at p.16, aff’d 1966 CanLII 50 (CSC),  S.C.R. 399. In 1985, a different statutory curative proviso, s. 686(1)(b)(iv), was enacted making it possible to cure breaches of s. 650 that amount to a “procedural irregularity at trial”: R. v. E.(F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 30, and see R. v. Khan, 2001 SCC 86,  3 S.C.R. 823, at paras. 11-16.
In R. v. M.C. (Ont CA, 2023) the Court of Appeal considered when and whether "steps can be taken during a criminal prosecution that are not part of the trial":
 I do not accept the Crown submission that the s. 278 application was not part of the trial, rendering s.650 inapplicable. I accept the premise of the Crown’s argument that, outside of the “normal trial process” for “determining guilt or innocence and the imposition of sanctions”, steps can be taken during a criminal prosecution that are not part of the trial: Hertrich, at pp. 416-417; James, at paras. 15-16. However, as the Crown recognizes, steps taken outside of the normal trial process can, and often are, part of the trial within the meaning of s. 650: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 115. Indeed, given the importance of the attendance of the accused, the word “trial” in s. 650 is to be “liberally construed”: Basarabas and Spek v. The Queen, 1982 CanLII 216 (SCC),  2 S.C.R. 730, at p. 740. The breadth of the concept of a “trial” under s. 650 is also signalled by its reference to the “whole of the trial”: Barrow, at p. 704. In my view, it would take a narrow conception of “trial” and “whole trial” to accede to the Crown’s submission in the circumstances of this case.
 Here is the test that is to be applied: “[w]hether an aspect or procedural incident of or associated with a criminal trial is part of the trial depends upon whether: what occurred involved or affected the vital interests of the accused; or whether any decision made had a bearing on the substantive conduct of the trial”: R v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at para. 56; Barrow, at p. 707‑708. This is not to be determined by asking whether the outcome would have been the same had the accused been present. As the analysis in Hertrich, at pp. 428‑429, and Simon, at para. 109, illustrate, the focus is on whether the proceeding involved a vital interest or issue related to the determination of the trial.