Judge’s intemperate remarks eclipse legal arguments in successful murder appeal

Law360 Canada (July 8, 2024, 10:30 AM EDT) --

John L. Hill

The city of Toronto was shocked upon hearing the news that first responders attending a North York townhouse at 2:15 a.m. on Thanksgiving Monday, Oct. 14, 2014, found 4-year-old Jaelin Roberto Colley was already dead. 

A four-second cellphone video clip taken at 1:18 a.m. by the boy’s father, Joel Roberto, depicted the boy covered in vomit with obvious trauma to his head. A 911 call was made at 2:09 a.m. The child was malnourished and dehydrated. Weighing only 12 kg, he was severely underweight.

Both the boy’s mother, Ravyn Colley, and his father were charged with first-degree murder. Colley pleaded guilty to manslaughter, but the plea was rejected. In July 2017, a jury found Joel Roberto guilty of second-degree murder and the mother guilty of first-degree murder. The father was sentenced to life imprisonment without parole eligibility for 18 years. The mother received the mandatory life sentence without parole for 25 years. Both appealed conviction and sentence.

On July 3, 2024, the Ontario Court of Appeal released its decision (R. v. Colley, 2024 ONCA 524). With such evidence of brutal child abuse, one could reasonably expect little sympathy for the appellants and a quick dismissal of their appeals. However, appellate counsel Frank Addario and Lynda Morgan for Colley and Mark Halfyard and Lindsay Board for Roberto focused not on the facts of the case but on the trial judge Todd Ducharme’s conduct.

Although numerous grounds of appeal were cited, the Court of Appeal seized on the trial judge’s intemperate remarks to defence counsel during in-chambers meetings. In the first of such meetings, without the accused parties being present, the trial judge used an expletive in describing what a jury would do to the pair if the matter went to trial and said he would be open to accepting second-degree murder pleas from each of the accused. The matter proceeded to trial. Later, during the trial, as the video clip was about to be entered, the judge called counsel for the accused persons into chambers and, using the same invective, described the type of disaster that awaited the pair should they not change their pleas.

The appellant’s counsel did not overlook a challenge to the admission of the accused’s statements in violation of Charter s. 10(b) or the illegal search of the cellphone to discover the clip claimed to be found in violation of s. 8 of the Charter. Yet, what most upset the appeal court was the trial judge’s conduct. The Crown argued that the judge’s urging for a resolution was all part of the pretrial procedure. The court disagreed. The pretrial phase was over, and the judge was engaged in an adjudicative capacity.

The appeal court accepted that fresh evidence could be introduced to determine if there was a case for a reasonable apprehension of bias and an infringement of s.  650(1) of the Criminal Code (wrongful exclusion of the accused from their trial); the appellants claimed that the in-chambers discussions of pleas conducted with the accused’s counsel only breached the Criminal Code requirement of their involvement.

Moreover, there appeared to be a reasonable apprehension of bias. Recent jurisprudence, such as R. v. Marrone, 2023 ONCA 742, have stressed the importance of a judge’s appearance of impartiality. The Court of Appeal cited R. v. Walker, 2010 SKCA 84, to illustrate the dangers of in-chambers commentary by a trial judge even when the trier of fact is a jury. There, it was said, “If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid-trial to express their views about the substance of proceedings and make inquiries about plea bargaining.”

The court concluded that a reasonable community member would conclude that the trial judge had pre-judged the matter and concluded their guilt.

This demonstration of an apprehension of bias amounts to a miscarriage of justice. Instead of applying the curative provisos and altering the sentences imposed, the appeal court ordered new trials for each accused. Colley will be retried on first-degree murder, and Roberto will be tried for second-degree murder.

An adage popular with criminal defence counsel is that if you can’t argue the facts, argue the law. Appellate counsel in the Colley case may have expanded this tactic: If you can't argue the facts and the law, put the judicial system on trial. It may all seem a waste of time for these unsympathetic parents, but the Court of Appeal has recognized that a greater good prevails — the integrity of our judicial system.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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