Anyone charged with a criminal offence, regardless of their presence or absence at trial, has a constitutional right to a fair and impartial trial at which they are presumed innocent until proven guilty. In Mississauga (City) v Sekhon, the Ontario Court of Justice emphasizes the necessity of judicial impartiality in ex parte trials given the vulnerable position of defendants who are unable to speak on their own behalf.
In Mr. Sekhon’s initial trial, at which he did not appear, the Justice of the Peace made a number of sarcastic and derisive comments about Mr. Sekhon’s case, prompting concerns about judicial impartiality. He questioned Mr. Sekhon’s past criminal record, and commented on his dissatisfaction with lenient sentencing for similar offences. Most significantly, the Justice commented on the appellant himself in such a way that “[a] reasonably informed person would conclude…that a conviction was inevitable from the outset in this case,” stating:
The COURT: The business of dealing with the public is a tough one. And in this instance, we had a city inspector out there trying to do his job and dealing with a boar [sic]. In the judicial council – I’m not allowed to call him an idiot because I got slapped down for using that term for a defendant by the judicial council. I don’t know if it was the term or the fact that I told him it was the least pejorative term I could think of at the time.
In Mr. Sekhon’s appeal, Justice M. M. Rahman found that the comments of the Justice of the Peace demonstrated a reasonable apprehension of bias against Mr. Sekhon and ordered a new trial. He reiterated that ex parte trials, just as any trials, must be fair and impartial, and, most importantly, that even when a defendant is absent, “[t]he presumption of innocence still applies, as does the burden of proof beyond a reasonable doubt.”
Defendants in ex parte trials are placed in a vulnerable position within the justice system, as they are unable to represent themselves before the court. Consequently, as Justice Rahman concludes, “[i]n some ways, it is even more important for a justice to remain above the fray in an ex parte trial because nobody is there to speak for the defendant.” Maintaining judicial impartiality in such circumstances is essential to protecting defendants’ constitutional right to a fair trial.
This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.
 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, s 11(d).
 2018 ONCJ 306.
 Ibid at paras 11, 17.
 Ibid at para 15.
 Ibid at para 12.
 Ibid at paras 16, 24.
 Ibid at para 21.
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