Chemama c. R., 2024 QCCA 405:
[120] …the Court agrees with the appeal amicus that alternatives to a complete removal must always be considered. The words of Proulx J.A, for the Court, are still apt and remind us that exclusion is an exceptional measure of last resort:
As in Canada, the American courts have taken the position that any limitation on such fundamental rights as the right to be present, to present his case and to be heard, can happen only after a trial court has looked “for corrective measures that do least injury to these rights consistent with the preservation of an orderly court atmosphere” (Badger v. Cardwell, supra).
To conclude on this study of the principles in issue, I find that where, in exceptional cases, despite efforts by a trial judge to avoid the inevitable, an accused still persists in his disruptive conduct and therefore, abuses his rights, he can lose these rights. In such a case, the trial judge in the exercise of his discretion, can take the appropriate measures to ensure the proper march of the trial…
[121] That said, the Court does not agree with the appeal amicus that it was unreasonable for the trial judge to exclude the appellant in the circumstances of this case. Judge Leblond had attempted to understand the appellant’s situation, but it rapidly became obvious to him — as it would to any reasonable observer — given the history of the proceedings, that nothing short of postponing the trial for the fallacious reason of obtaining the services of a lawyer would have satisfied the appellant, causing prejudice to the complainants and straining the limited resources of the judicial system. Considering all the circumstances, the trial judge did not err in excluding the appellant from the courtroom and proceeding with the trial.
[122] However, the Court agrees that despite these difficulties, the trial judge should have taken steps to provide a video link for the appellant. It was an error to not even contemplate that alternative. It was also an error for the trial judge to not explain to the appellant, a self-represented accused, the basics of the trial procedures.
[123] In other circumstances, these errors could have resulted in an order for a new trial. In this case however, the appellant returned before the trial judge in November, and with the assistance of counsel acting outside the courtroom, he waived any cross-examination of the witnesses and declared to have no defence to present. This was a reasoned and deliberate decision on the part of the appellant, taken many months after the initial hearing and with the assistance of counsel.
[124] Consequently, the Court dismisses this ground of appeal.
