R. v. Schofield (W.T.), (2012) 289 O.A.C. 25 (CA)

• Judge: O'Connor, A.C.J.O. and MacPherson and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 10, 2012
• Jurisdiction: Ontario
• Citations: (2012), 289 O.A.C. 25 (CA);2012 ONCA 120

R. v. Schofield (W.T.) (2012), 289 O.A.C. 25 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.029

Her Majesty the Queen (respondent) v. William Thomas Schofield (appellant)

(C50780; 2012 ONCA 120)

Indexed As: R. v. Schofield (W.T.)

Ontario Court of Appeal

O'Connor, A.C.J.O. and MacPherson and Rouleau, JJ.A.

February 10, 2012.

Summary:

Schofield was charged with four counts of indecent assault. He was convicted on two charges and acquitted on two other charges. The trial judge imposed a sentence of 3.5 years' imprisonment. Schofield appealed from the convictions and the sentence. His principal ground of appeal was that he was excluded from an in-chambers conference initiated by the trial judge. Section 650(1) of the Criminal Code provided that "an accused ... shall be present in court during the whole of his or her trial." The Crown conceded that s. 650(1) was violated, but that this was a proper case for the application of the proviso in s. 686(1)(b)(iv) of the Code to preserve the verdict. Schofield also submitted that the conviction was an unreasonable verdict. Both counsel provided affidavits for the purpose of Schofield's fresh evidence application.

The Ontario Court of Appeal granted the fresh evidence application, allowed the appeal on the s. 650(1) issue, set aside the convictions and ordered a new trial.

Civil Rights - Topic 3137

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be present at trial - [See both Criminal Law - Topic 127 ].

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - The accused was excluded from an in-chambers conference, mid-trial, where the trial judge expressed his opinion to both counsel about the weakness of the accused's testimony and some problems with the Crown case - He urged counsel to try to resolve the case - The trial continued - The accused was convicted - On appeal, the Crown conceded that the accused should not have been excluded from the in-chambers discussion; that any conversation ought to have taken place in the accused's presence, in open court, and on the record - The Ontario Court of Appeal stated that the Crown's concession was an appropriate concession that flowed naturally from the leading cases interpreting s. 650(1) of the Criminal Code - "[T]he Crown concedes, properly in my view, that the in-chambers discussion about possible resolution affected the vital interests of the accused. It could hardly be otherwise, given the trial judge's explicit comments about his impressions of the accused's own testimony" - See paragraphs 14 to 19.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - The accused was charged with four counts of indecent assault - In a judge-alone trial, the accused chose to testify - His wife then testified - After her testimony, the court rose for the lunch break - The trial judge summoned both counsel to his chambers - The accused did not attend - The chambers discussion (5 to 10 minutes) was not recorded - The discussion included the trial judge's stated impressions of the accused's testimony - The trial continued - The accused was convicted on two charges and acquitted on two other charges - The accused appealed - The Ontario Court of Appeal discussed two problems with the in-chambers conference: (1) it needed to take place in the presence of the accused, because of s. 650(1) of the Criminal Code; and (2) the actual contents of the discussion and, in particular, the trial judge's negative comments about the accused's just-finished testimony, seriously compromised the trial judge's impartiality - The breach of s. 650(1) was not salvaged by the application of the proviso in s. 686(1)(b)(iv) of the Code - The exclusion of the accused was deliberate; defence counsel did not initiate the exclusion, nor did he concur in the exclusion; the subjects discussed were reported to the accused by his counsel; the discussions involved very important substantive matters; and the discussion had a profound effect on the apparent fairness of the trial proceedings - The result was that the appearance of judicial impartiality was compromised - The court ordered a new trial - See paragraphs 20 to 32.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See both Criminal Law - Topic 127 ].

Criminal Law - Topic 4304.3

Procedure - Trial judge - Duties and functions of - Duty respecting out-of-court discussions with counsel (incl. plea bargaining and pre-trial) - [See both Criminal Law - Topic 127 ].

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - [See both Criminal Law - Topic 127 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was charged with four counts of indecent assault - He was convicted on two charges and acquitted on two other charges - The trial judge imposed a sentence of 3.5 years' imprisonment - The accused appealed - A ground of appeal was that the conviction was an unreasonable verdict - The accused submitted that the trial judge ignored vital defence evidence provided by witnesses other than the accused that contradicted material aspects of the Crown case, erred by repeatedly ignoring or forgiving internal inconsistencies in the evidence of the Crown witnesses, and did not recognize that certain aspects of the complainants' allegations were highly improbable and warranted consideration by the trial judge as to their credibility and reliability - The Ontario Court of Appeal did not accept that submission - "This was a difficult trial. It involved events that took place about 35 years before the trial and related to alleged sexual activity involving very young girls. In my view, the trial judge was acutely aware of the difficulties of proof in such a case. His reasons are comprehensive and balanced and support the conclusions he reached. Indeed, on the record before him, the two acquittals and two convictions are entirely reasonable" - See paragraphs 33 to 35.

Criminal Law - Topic 5049

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where accused denied right to be present during whole of trial - [See second Criminal Law - Topic 127 ].

Cases Noticed:

R. v. Hertrich, Stewart and Skinner (1982), 137 D.L.R.(3d) 400 (Ont. C.A.), appld. [para. 16].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 16].

R. v. James (D.) (2009), 248 O.A.C. 350; 95 O.R.(3d) 321; 2009 ONCA 366, refd to. [para. 17].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359; 104 O.R.(3d) 340; 2010 ONCA 754, refd to. [para. 17].

R. v. F.E.E. (2011), 286 O.A.C. 109; 2011 ONCA 783, refd to. [para. 17].

R. v. Walker (K.J.) (2010), 362 Sask.R. 169; 500 W.A.C. 169; 258 C.C.C.(3d) 36; 2010 SKCA 84, refd to. [paras. 17, 30].

R. v. Roy (1976), 32 C.C.C.(2d) 97 (Ont. C.A.), appld. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 650(1) [para. 3]; sect. 686(1)(b)(iv) [para. 4].

Counsel:

Brian H. Greenspan and Jill D. Makepeace, for the appellant;

Elise Nakelsky, for the respondent.

This appeal was heard and decided on February 10, 2012, before O'Connor, A.C.J.O. and MacPherson and Rouleau, JJ.A., of the Ontario Court of Appeal. The reasons in support of the Court's conclusions were written by MacPherson, J.A., and released on February 22, 2012.