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.