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

TRIALS-PRESENCE OF THE ACCUSED, SECTION 650(1) AND 650.01(1) OF THE CRIMINAL CODE

In R. v. Snelgrove, 2023 NLCA 12, April 18, 2023, the accused was convicted of the offence of sexual assault.  He appealed from conviction, arguing, in part, that:

First, he argues that the Judge violated section 650(1) of the Code by conducting discussions respecting his jury charge and the jury questions in his chambers, when Mr. Snelgrove was not present. He maintains that a verdict which results from a trial that takes place in violation of section 650(1) must be set aside.

The appeal was dismissed.

Sections 650(1) and 650.01(1) of the Criminal Code:

The Court of Appeal noted that there were “email communications and in-person discussions among his counsel, Crown counsel, and the Judge respecting the jury charge, and discussions between the Judge and counsel pertaining to questions the jury asked during its deliberations. Mr. Snelgrove was not involved in any of the email communications and he was not present when the Judge and counsel discussed the jury charge or the jury’s questions and the Judge’s answers” (at paragraph 14).

The Court of Appeal concluded that “the wording and interrelationship of sections 650(1), 650.01, and 650.1 authorized Mr. Snelgrove’s counsel to communicate and discuss the jury charge and the jury’s questions in Mr. Snelgrove’s absence” (at paragraph 18).

The Court of Appeal indicated that as a result of the wording of section 650(1) of the Criminal Code, “an accused’s presence at trial is not simply a right that may or may not be exercised, it is an imperative” (at paragraph 44).  However, the Court of Appeal held that as a result of section 650.01(1) the Criminal Code, counsel designated by the accused could appear for the jury charge and jury questions discussions.  The Court of Appeal stated that “when Mr. Snelgrove’s counsel appeared on his behalf to communicate and discuss the jury charge and the jury’s questions, Mr. Snelgrove was effectively present” (at paragraph 53).