Mid-trial discussions in chambers a no-no ruling

An Ontario Court of Appeal decision that points to the inappropriateness of mid-trial discussions in chambers is a good reminder that this practice should never take place because it "taints the legal process" and breaches an accused person’s right to a fair trial, says Toronto criminal lawyer Matthew Friedberg.

"This decision is an excellent guidepost on how to conduct fair trials," he says.

In R. v. Poulos, 2015 ONCA 182 (CanLII), Justice Harry LaForme of the Court of Appeal says that despite the court’s earlier warnings that any discussion involving trial counsel and the judge in all criminal trials ought to take place in the presence of the accused in open court.

“In spite of the cautions, however, in-chambers discussions without the accused continue to take place,” he writes. “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.”

Friedberg says that once a trial judge is seized with the case, any kind of discussions that have an impact on the matter need to be done in open court in front of the accused.

"Judges have to be sensitive to these issues," he says.

In R. v. Poulos, the appeal turned on the propriety of the judge-initiated mid-trial discussion.

Court documents explain that after a two-day trial, the trial judge convicted John Poulos of two counts of sexual assault.

After the Crown presented evidence from the two complainants and closed its case, the trial judge asked to see counsel in his chambers and suggested a plea bargain. Poulos wasn’t present for those discussions and the matters discussed in chambers in his absence weren’t repeated on the record.

On appeal, Poulos sought to introduce fresh evidence to establish that the trial judge’s conduct had deprived Poulos 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.”

Poulos also argued that the mid-trial discussion, in conjunction with the trial judge’s questioning of a defence witness, gives rise to a reasonable apprehension of bias.

The court file explains the trial judge said 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.

The documents also describe how Poulos recalls that his trial counsel reported to him after the in-chambers meeting and told him 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.

Poulos raised 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 of 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.

LaForme ruled the trial judge’s initiation of a mid-trial discussion in the absence of the accused about a possible plea bargain “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,” he says.

He set aside the convictions and ordered a new trial.

Friedberg says there are two important issues with this case: the fact that there was a mid-trial discussion in chambers and the fact that it occurred without the presence of the accused.

"The better practice would be for a trial judge to send the parties to another judge to discuss any resolution," he says.