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

“This appeal demonstrates the hazards of trial judges conducting in-chambers discussions with counsel during a criminal trial”.

In R. v. S.M., 2022 ONCA 765, November 9, 2022, the accused was charged with a number of criminal offences. He was self-represented at trial. The trial judge appointed amicus curiae and counsel to cross-examine the complainants, pursuant to s. 486.3 of the Criminal Code

The Ontario Court of Appeal noted that “[d]uring the second week of the trial, the trial judge invited the Crown, amicus curiae, and s. 486.3 counsel into his chambers. He expressed concern about the Crown’s case on one of the counts. He encouraged the lawyers to resolve the case by way of a guilty plea. Following another in-chambers meeting later that same day, the appellant pled guilty to four of the five charges that he faced…There “was no mention of the in-chambers meetings in open court” or to the accused until after he was sentenced (at paragraphs 3 and 4).

The accused appealed from conviction, arguing that “the in-chambers meetings deprived him of the right to be present at his own trial, in violation of s. 650 of the Criminal Code” (at paragraph 5).

The appeal was allowed and the convictions set aside.  The Court of Appeal concluded that a breach of section 650 occurred (at paragraphs 37 to 40):

I agree with both counsel that what happened in this case ran afoul of s. 650 of the Criminal Code in two ways. First, it was improper to engage in resolution discussions in the absence of the appellant. This clearly implicated his vital interests. Second, the trial judge should not have commented adversely on the evidence of V.M.

This scenario – an in-chambers meeting in which a trial judge comments on the quality of the evidence and then encourages resolution discussions – has been criticized in numerous decisions of this court…In these situations, it is clear that the former (comments about the evidence) is meant to encourage the latter (plea discussions). Both are improper. In-chambers comments about the evidence are particularly problematic if resolution is not achieved and the trial continues. The appearance of impartiality is lost.

As Richards J.A. of the Saskatchewan Court of Appeal said in Walker, at para. 38: “If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid-trial for the purpose of expressing their views about the substance of the proceedings and making inquiries about plea bargaining.”

The infringement was made more serious in this case because, unlike some of the cases referred to above, there was no record of these in-chambers discussions. Unlike all of these cases, the appellant was self-represented. This reality was not ameliorated by the presence of amicus curiae or s. 486.3 counsel. The latter does not remember being in chambers. The former did not tell the appellant what had transpired, even after being asked to do so by the trial Crown. He did not believe that it was “consequential”.