New trial ordered for Toronto couple convicted of murdering four-year-old son after judge's comments led to 'miscarriage of justice:' Ontario's top court

Warning: This story contains graphic details that may be disturbing to some readers.

A new trial has been ordered for a Toronto couple found guilty of killing their four-year-old son after Ontario’s top court ruled that the judge who proceeded over the initial 2017 trial demonstrated bias when he told lawyers for the accused that their clients were “f****ed” and urged them to consider pleading guilty to a lesser charge of second-degree murder.

In an Ontario Court of Appeal decision released this week, Justices Gary Trotter, Julie Thorburn, and Lorne Sossin overturned the convictions of Joel Roberto and Ravyn Colley, who were charged with first-degree murder in the 2014 death of their four-year-old son Jaelin.

Jaelin Roberto-Colley was found dead in the early morning hours of Oct. 13, 2014. First-responders arrived to the couple’s North York townhouse that morning to discover Roberto-Colley “emaciated” and suffering from a “litany of injuries” all over his body. According to facts outlined in the decision, the four-year-old had suffered a traumatic brain injury, causing him to vomit and “leaving him in an unconscious or semi-conscious state.”

The court documents indicated that the four-year-old had suffered from “moderate to chronic malnutrition” and weighed just 27.6 pounds at the time of his death.

At the conclusion of their trial in the summer of 2017, a jury found Roberto guilty of second-degree murder and Colley guilty of first-degree murder. Roberto was sentenced to life imprisonment without the chance of parole for 18 years and Colley was sentenced to life imprisonment with no parole eligibility for 25 years.

While the appeal court acknowledged that the facts of the case are “horrific,” they concluded that there was a “miscarriage of justice” after finding a “reasonable apprehension of bias” on the part of the trial judge, Ontario Superior Court Justice Todd Ducharme. The three-judge panel also found that the appellants were “excluded from part of their trial” during multiple in-chamber meetings with counsel.

“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 decision read. “Regrettably, there must be a new trial.”

The Ontario Court of Appeal found that while the judge was in the middle of pre-trial motions where he was to decide the admissibility of “key pieces of evidence,” he expressed his view that the two accused would be viewed as “child killers” and urged them to plead guilty to the lesser charge of second-degree murder.

“He expressed his views in-chambers, using aggressive and inappropriate language. He did so on two separate occasions,” the decision read.

Both in-chambers meetings were initiated by Ducharme. During the first meeting, the trial judge told defence counsel that the two accused were “f****ed” if the case went to trial, encouraging all parties to resolve the case with guilty pleas to second-degree murder.

During pre-trial motions days later, a disturbing video was played in court, showing the four-year-old with serious injuries just an hour before he died. That led to a second in-chambers meeting with counsel, where the judge called the video a “f****ing disaster,” the decision read.

While the comments made by the trial judge were not recorded, the appeal court considered new affidavits from the defence lawyers that outlined their discussions with Ducharme.

After the meetings, Ducharme followed up in an email to counsel, asking about a possible resolution. At one point, the trial judge addressed the two accused directly in court, telling them that he thought they would be convicted of first-degree murder and urging them to plead guilty to second-degree murder.

“When the trial judge addressed the appellants directly, he risked undermining their solicitor-client relationships,” the decision read.

A mistrial application was subsequently submitted by defence counsel, which asked Ducharme to recuse himself, but the requests were denied.

Ducharme had indicated that his comments on second-degree murder pleas were out of a sense of “compassion” for the accused, as he could not see a plausible route to manslaughter convictions. Colley had initially pleaded guilty to manslaughter, a plea the Crown did not accept.

“It may very well be that the trial judge saw himself as acting compassionately towards the appellants, who were both facing the potential of a first degree murder conviction. But regardless of his motivation for doing so, the trial judge’s persistence in encouraging a resolution undermined the perception of his impartiality,” the decision read.

“Looking at the entirety of the events, reasonable and informed members of the community would conclude that the trial judge would not be impartial in his dealings with the appellants, who he had already decided were ‘child killers,’ and not ‘two innocent people in the jaws of the criminal justice system.’”

While the remainder of the trial proceeded without issue, the justices noted that the trial judge’s earlier comments could not be undone and a “cloud had been cast” over the judge’s pre-trial rulings that related to “key pieces of highly inculpatory evidence.”

“The appearance of fairness – and the dignity of the proceedings – had already been lost,” the decision read.