R. v. Walker, 2010 CarswellSask 389 (Sask. C.A.)

A new trial has been ordered for a Yorkton man sentenced in 2007 to life in prison for the death of his daughter’s boyfriend.

The Saskatchewan Court of Appeal overturned the second-degree murder conviction of Kim Walker. 

During the murder trial the trial judge summoned Walker’s lawyer and the Crown into chambers for two separate meetings. At one meeting possible defences were discussed, and at another the trial judge gave her opinion about the case, and inquired whether plea bargaining had been pursued. The accused was not present at either meeting. The appellant was convicted of second degree murder. The Saskatchewan Court of Appeal ordered a new trial, finding that the in-chambers meetings were a breach of the accused’s right to be present at this trial. Per Richards J.A.:

 23. With that background on the application of s. 650(1), I turn to the question of whether the two meetings convened by the trial judge were part of Mr. Walker’s “trial” in the required sense of that term. In this regard, Mr. Bodnar’s affidavit offers little explanation of the particulars of the meetings. It says that, at the first meeting, the trial judge “discussed the possible defences of self-defence and duress” and that there was a discussion involving the judge and counsel about whether these defences would be pursued during the trial. We do not know at what point in the proceedings this meeting took place.

24. At the second meeting, we know only that the judge “indicated her opinion of the case” and made inquiries about “whether any discussions had taken place with respect to a plea bargain.” The rather clear implication of this is that the trial judge expressed a negative view of Mr. Walker’s defence. Otherwise, the inquiries about a plea bargain would make little sense. Mr. Bodnar’s affidavit does not state when this conversation happened. However, we do know the trial judge expressed her view about the substance of the trial prior to its conclusion. This is ultimately the true significance of the meeting.

25. Notwithstanding the paucity of detail as to precisely what transpired in the chambers of the trial judge, the second meeting she convened is self-evidently problematic. As a result, I propose to focus on it and leave the first meeting to the side.

 26. Mr. Walker’s vital interests were clearly engaged by the second meeting. The meeting occurred during the course of the trial proper and, as is apparent, went to the strength or merits of Mr. Walker’s position. It is difficult to see how an accused person could not have a profound interest in such an extraordinary turn of events. The trial judge, after all, was the central figure in the trial. She was in a position to make rulings on the admission of evidence, to decide which defences could be put to the jury, to charge the jury and, of course, to respond to questions raised by the jury in the course of its deliberations. Her view of the case might fairly be expected to reflect itself in some or all of those areas.

27. I acknowledge, of course, that the meeting did not involve the presentation of evidence or argument. Nor did it involve the trial judge making a ruling or decision about any matter at issue in the trial. However, if s. 650(1) is understood as being concerned with ensuring an accused person does not perceive the trial process as unfair or unjust, it must surely be offended in situations where, in mid-stream of a trial, a judge privately offers his or her view of the merits of a case and raises the issue of a plea bargain. An accused person would have every right to be cynical about the fairness of the trial after such a meeting took place. Thus, in my opinion, the second meeting between counsel and the trial judge was held in contravention of s. 650(1) of the Code.

As a result, a new trial was ordered.