Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. James, 2021 BCCA 453, February 6, 2021, the accused was sentenced to a period of ten years of imprisonment.  The sentencing judge proceeded in the absence of the accused after the accused refused to come out of his cell and otherwise misbehaved. The accused appeal from sentence.

The appeal was dismissed. The Court of Appeal indicated that the “principal issues on appeal relate to the fact that the appellant was not present during part of his sentencing hearing. In so proceeding, the judge relied on s. 650(2)(a) of the Criminal Code”.  The section states:

The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible.

In dismissing the appeal, the Court of Appeal concluded that the sentencing judge was entitled to rely upon section 650(2)9a) and to proceed in the absence of the accused because of his behavior (at paragraph 12):

Taking all of the circumstances into account, I am satisfied the judge was entitled to rely on s. 650(2)(a). The order was rooted in Mr. James’ behaviour in court, and its effect in disrupting proceedings, so that it was not feasible to continue the hearing in his presence. The judge exercised his discretion about how to proceed in difficult and trying circumstances. No reversible error in the exercise of that discretion has been demonstrated. The judge had to weigh competing interests, including those of Mr. James, but also the safety of prison staff and the interest in the timely resolution of the sentencing proceedings, which had already been delayed several months by Mr. James’ conduct.