In R. v. Colley, 2024 ONCA 524, released on July 3, a bench of Justices Gary Trotter, Julie Thorburn and Lorne Sossin overturned the convictions of the appellants Ravyn Coley and Joel Roberto, who were charged with first-degree murder in the killing their son, Jaelin.
“In finding that there was a reasonable apprehension of bias and that the appellants were excluded from part of their trial, we conclude that there has been a miscarriage of justice and a new trial is warranted,” the bench wrote.
On Oct. 13, 2014, the appellant Joel Roberto called emergency services and reported that his son Jaelin had become non-responsive.
When firefighters arrived, Jaelin was already dead. An autopsy revealed that Jaelin had significant fresh bruises on his face, including a laceration that went most of the way through his lower lip. He also had a traumatic brain injury, which, according to the autopsy, left him in an unconscious or semi-conscious state and caused him to vomit.
The autopsy found the immediate cause of Jaelin’s death to be “aspiration of gastric contents,” complicated by “blunt impact head trauma in a child with malnutrition.”
The police investigation found a video taken by Roberto in which Jaelin was propped up on a couch in the basement of the family home. In the video, Jaelin appeared badly hurt with injuries to his face and in an altered state of consciousness. He was drawing his hands into fists and flexing his arms, which a forensic pathologist and a neuropathologist stated was involuntary activity due to brain damage.
Jaelin’s mother, the appellant Ravyn Colley, testified and acknowledged she was guilty of manslaughter for failing to provide the necessities of life to Jaelin. She admitted that she knew that he was underweight but said she did not have the wherewithal to feed him, due to her limited education and an alcohol addiction.
She claimed she had not taken Jaelin to see a doctor for years for fear that the Children’s Aid Society would take both of her children away.
She testified that Roberto had assaulted Jaelin the day that he died and that she was too intoxicated to understand how ill Jaelin was.
Roberto also admitted to manslaughter for failing to provide the necessities of life to Jaelin but testified that Colley intentionally caused Jaelin’s death by withholding food from him and assaulting him. He denied assaulting Jaelin.
During a pretrial motion, the trial judge, Superior Court Justice Todd Ducharme, asked counsel to attend his chambers. When asked by the trial judge if there had been any resolution discussions, the Crown said it would be prepared to accept guilty pleas to second-degree murder if both appellants accepted the offer.
The trial judge proceeded to give unsolicited views about the strength of the evidence against the appellants. He stated that juries do not like “child killers” and that the appellants were “f--ked” if they proceeded to trial on first-degree murder.
In a subsequent meeting with counsel in chambers, the trial judge said that the video of Jaelin was “a f--king disaster.” He noted that he did not consider the appellants to be “two innocent people in the jaws of the criminal justice system” and encouraged them to plead guilty.
The trial judge also opined that he did not think Colley’s statement was believable.
In May 2017, the appellants were arraigned, the jury panel was brought into court and initial screening was done.
He addressed the appellants in open court and told them that he had been urging their counsel and the Crown to try and resolve the case with a plea to second-degree murder.
After he was informed that the Crown and the defendants had not reached an agreement, he stated that he was “hopeful” that his rulings may produce results. At the time, the trial judge had not yet ruled on the admissibility of the video of Jaelin or the appellants’ statements. He subsequently admitted all of this evidence.
He further stated that he was concerned that both of the appellants could be convicted of first-degree murder and that he could not understand how they could be convicted of only manslaughter.
Colley’s counsel brought an application for recusal and a mistrial. The trial judge observed that no counsel resisted the in-chambers discussions or gave any indication that they thought it was inappropriate to engage in such discussions.
He emphasized that he was not the trier of fact and that his intervention was motivated by a sense of genuine compassion for both the appellants and not by any bias against either of them.
The trial judge dismissed the application and the trial continued. The jury found Roberto guilty of second-degree murder and Colley guilty of first-degree murder. Roberto was sentenced to life imprisonment with no parole eligibility for 18 years and Colley was sentenced to life imprisonment with no parole eligibility for 25 years.
The appellants submitted that the fresh evidence concerning how the trial was conducted demonstrated a reasonable apprehension of bias on the part of the trial judge and that they were excluded from their trial, contrary to s. 650(1) of the Criminal Code.
The appeal court noted that the principle that justice should not only be done but should manifestly and undoubtedly be seen to be done was at the foundation of the test for reasonable apprehension of bias.
The bench cited R. v. Jaser, 2024 ONCA 448, in which the Ontario Court of Appeal held that the test for establishing a reasonable apprehension of bias is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could not decide the case fairly.
The appeal court also noted that it had repeatedly expressed disapproval of trial judges inviting counsel into their chambers during the trial to comment on the evidence and encourage guilty pleas.
The bench observed that such actions pose a risk to impartiality and a risk that the accused’s vital interests may be affected.
The court noted that the reasonable apprehension of bias test is more difficult to satisfy when the trier of fact is a jury and the impugned conduct of the judge did not occur in the presence of the jury.
“However, it is possible to establish a reasonable apprehension of bias claim in these circumstances,” the bench held.
The court noted that the trial judge had expressed his view that the appellants were “child killers” and should plead guilty to second-degree murder in the middle of pretrial motions on the admissibility of key pieces of evidence.
“A reasonable and informed member of the community would conclude that the trial judge’s initial expression of his opinion demonstrated that he had pre-judged the case in concluding that both appellants were guilty of murder,” the court noted.
The bench observed that the trial judge’s conduct in the two in-chambers meetings alone was enough to demonstrate a reasonable apprehension of bias but that the scenario worsened when he addressed the issue in open court.
The court found that the trial judge had foreshadowed that his rulings with respect to evidence might “produce results” in terms of the appellants’ resolve to proceed to trial.
“With these words, the trial judge entwined his views of the appellants’ guilt with his adjudicative function, tainting the rulings he subsequently delivered,” the court held.
The court noted that a reasonable and informed observer would interpret the judge’s statement as suggesting that the rulings might be made with the goal of encouraging guilty pleas, rather than being decided on the merits.
The court also held that the trial judge risked undermining the appellants’ solicitor-client relationship when he addressed them directly.
The bench noted that while it may be that the trial judge saw himself as acting compassionately towards the appellants, his persistence in encouraging a resolution undermined the perception of his impartiality.
The court also found that the trial judge excluded the appellants from their trial when he requested that counsel attend chambers so that he could provide an unsolicited assessment of the appellants’ fortunes at trial and encouraged them to plead guilty.
The bench held that the conduct of the trial judge gave rise to a reasonable apprehension of bias and that the exclusion of the appellants from their trial resulted in prejudice to the appearance of the due administration of justice.
“The appearance of fairness and the integrity of the trial was irretrievably compromised by the trial judge’s in-chambers unsolicited opinions about the evidence, by the manner in which he expressed these opinions, and by addressing the appellants directly in open court, all with the mission of having them plead guilty,” the court held.
“Regrettably, there must be a new trial,” the bench wrote, allowing the appeal.
The Court of Appeal recognized that what happened in this trial was unfair and took the necessary step of ordering a new trial, said counsel for Joel Roberto, Lindsay Board of Daniel Brown Law LLP.
“It is important that justice not only be done but be seen to be done. Especially in the most serious cases, all justice system participants must be careful to ensure that the trial is conducted fairly for the benefit of everyone impacted by the charges,” she told Law360 Canada in an email.
Mark Halfyard and James Bray of Daniel Brown Law LLP also acted as counsel for Roberto.
Counsel for Ravyn Colley were Frank Addario and Lynda Morgan of Addario Law Group LLP. They were not immediately available for comment.
Counsel for the prosecution were Lisa Joyal, Andrew Cappell and Jim Clark of the Ministry of the Attorney General of Ontario. They declined to comment.
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