DB had a niece. His niece had a daughter, SP, the complainant. DB was alleged to have sexually assaulted SP on one occasion and interfered with her on another. The charges arose out incidents that occurred in the summer of 2007 including an incident that occurred when they were at a cottage. SP alleged that on that occasion she had gone for a ride with DB in the bush and he performed oral sex on her. DB testified at trial and denied the allegations. He was cross-examined by the Crown. He was convicted. He appealed: 2012 ONCA 301.

On appeal DB argued, inter alia, that his trial was unfair because he was excluded from the courtroom. During cross-examination DB was excluded briefly while counsel and the trial judge discussed an area of examination that was contentious.

The Crown conceded that DB ought not to have been excluded from the courtroom. This exclusion was in violation of section 650(1) of the Code. The of appeal agreed. The court of appeal noted that this exclusion is fatal unless the Crown demonstrates that DB did not suffer any prejudice as a result. The court of appeal held that the brief absence of DB in these circumstances did “not in any way prejudice” him. The proviso applied; appeal dismissed.