A Toronto couple convicted of beating to death their malnourished four-year-old son have had their murder convictions voided and are to face a new trial after the Ontario Court of Appeal ruled the judge in the case tainted the proceedings by urging the parents to plead guilty.
The decision, released Wednesday, criticized Toronto Ontario Superior Court Justice Todd Ducharme for having “irretrievably compromised” the criminal case through unsolicited and often profane advice during pretrial hearings. The judgment noted several instances when Justice Ducharme used an expletive to characterize the defence’s arguments.
The case involves the death of Jaelin Roberto-Colley, 4, who weighed just 28 pounds when he was found dead in his North Toronto home a decade ago.
His parents, Ravyn Colley and Joel Roberto, who had been convicted by a jury of murder charges and were serving penitentiary terms, are now to face renewed proceedings, including those to determine whether they will be released.
The unanimous ruling, made by a three-judge panel consisting of Justices Gary Trotter, Lorne Sossin and Julie Thorburn, said that the appeal court has “repeatedly expressed disapproval of trial judges inviting counsel into their chambers during the trial to comment on the evidence and encourage guilty pleas.”
“We conclude that there has been a miscarriage of justice and a new trial is warranted.”
The Court of Appeal called the decision regrettable, but ruled there were several instances of the trial judge telling the accused – through their lawyers or directly – that they would likely be convicted of first-degree murder if they did not immediately plead guilty to second-degree murder charges.
All convicted murderers face life in prison in Canada, but a first-degree murder guilty finding triggers Canada’s stiffest sentence: no chance of parole for 25 years. A second-degree murder conviction has an earlier parole-eligibility date.
The lawyers for the couple launched renewed appeals after they received life sentences, which led to Wednesday’s appellate ruling.
“After a trial starts, the judge is in a referee period. He is not allowed to get into the mix and offer his opinion, especially without the defendants present,” defence lawyer Lynda Morgan, who argued the appeal, said in an e-mailed response when asked for comment.
“Here the trial judge did that repeatedly, spoiling the appearance of fairness.”
Justice Ducharme told defence lawyers in 2017, when they challenged his controversial remarks as he uttered them, that he was not expressing bias.
“My intervention was motivated by a sense of genuine compassion for both Mr. Roberto and Ms. Colley.”
Shortly after 2:30 a.m. in October, 2014, Jaelin was found dead in his home. Court documents say the boy, just three months away from his fifth birthday, was discovered in a “manifestly emaciated” state, weighing less than he did as an 18-month-old toddler. He had bruises to his face, a laceration through his lower lip, a fractured wrist, and a traumatic brain injury that had left him unconscious.
Court heard Mr. Roberto placed a 911 call telling the operator that his son had fallen down a flight of stairs. But the firefighters who found the boy on the living room floor said he appeared cold and stiff and without a pulse. Coroners who examined the boy ruled that his head injury caused him to choke to death on his own vomit.
The couple was arrested and charged with first-degree murder. During the pretrial phase, they challenged the evidence against them. Many of these hearings occurred in May, 2017.
This was when, according to the Court of Appeal, Justice Ducharme invited lawyers into his chambers for a 20-minute discussion, where he gave “his unsolicited views about the strength of the evidence, expressing that ‘juries do not like child killers’ and that the [accused couple] were ‘fucked’ if they proceeded to trial on first-degree murder.”
Days later, Justice Ducharme e-mailed the lawyers in the case to ask if anyone was working out a plea deal. Later, when the accused were in court, he addressed them directly: “Mr. Roberto and Ms. Colley, as I’m sure you know, I have been urging your counsel and the Crown to try and resolve this case with a plea to second-degree murder.”
After a 2018 jury trial, Ms. Colley was convicted of first-degree murder and Mr. Roberto was convicted of second-degree murder. His parole eligibility date was set at 18 years.
The Ontario Court of Appeal ruling now voids these convictions.
It’s unclear whether the Crown will appeal to the Supreme Court or when it will seek to launch a renewed prosecution, including potential bail hearings.
“It would be inappropriate to comment,” said Keesha Seaton, a spokeswoman for the Ontario Ministry of the Attorney-General.
A spokesman for the Ontario Superior Court said Justice Ducharme will not be commenting on the case.
“Judges are bound by ethical guidelines ensuring their conduct maintains and enhances confidence in their impartiality,” said Trevor Guy. “For that reason, it would be inappropriate for Justice Ducharme to comment on a matter over which he presided.”
Editor’s note: A previous version of this article identified Justice Gary Trotter as the writer of a new Ontario Court of Appeal ruling. This version has been updated to clarify that he was part of a three-judge panel who released the ruling which was written in the name of the court.