Appeal Court Finds Right to Be Present at Trial Was Breached

May 16, 2012 – The Ontario Court of Appeal ordered a new trial after it concluded that the accused person’s right to be present during a mid-trial conference had been violated. In R. v. Schofield, [2012] O.J. No. 777, February 22, 2012, Schofield had been found guilty and sentenced to 3½ years in prison. This case involved criminal code offences alleging that Schofield had indecently assaulted two young girls in the early 1970s. After he had testified during his trial, the judge met with defence counsel and the Crown in his chambers to discuss the case. Schofield was not invited to the judge’s chambers.

During the meeting, the judge inappropriately gave an opinion on the weaknesses the judge saw in the Crown’s case and the weaknesses of Schofield’s testimony. The negative comments about his testimony seriously compromised the trial judge’s impartiality, particularly since this was a judge-alone trial (no jury).

Schofield appealed on the basis that his rights were violated and that the imposition of a 3½ year sentence was unreasonable. Section 650(1) of the Criminal Code states that “an accused … shall be present in court during the whole of his or her trial.” The Ontario Court of Appeal concluded that Schofield should have been present during the mid-trial conference because aspects of his case were being discussed and judged in his absence.

A meeting in the judge’s chambers is a common occurrence at other stages of the criminal court process. During the Judicial Pre-Trial stage of a criminal court proceeding, the judge will sometimes meet with Crown counsel, the police officer in charge and defence counsel to discuss the case and possible resolutions. The judge may at this stage offer his/her opinion on the merits of the case; however, the matter is not at the trial stage during this pre-trial conference and the judge does not make any decision as to the outcome of the case. The judge who conducts a judicial pre-trial is not usually the judge who presides over the case at trial. The judicial pre-trial meeting is distinct from a mid-trial conference in chambers, especially in a judge only trial, because a mid-trial conference might reveal bias on the part of the presiding judge. This was in fact what occurred here, where the judge showed bias towards Schofield off-record and in his absence. The Ontario Court of Appeal found it to have been enough of a significant breach of the accused person’s right to a fair trial to overturn the conviction and order a new trial.

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