R v Mavros, 2016 ABQB 140

Court of Queen’s Bench of Alberta Citation: R v Mavros, 2016 ABQB 140 Date: 20160310 Docket: 140594847U1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Chris George Mavros Applicant (Accused) Restriction on Publication NOTE: This decision is available from the court file. It may be published after the end of the trial. Editorial Notice : The restriction on publication ended January 12, 2017. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] Invoking a reasonable apprehension of bias, Mr. Mavros asks the court to prohibit the assigned Provincial Court judge fromhearing the trial in this matter.

He relies on the cumulative effect of six factors: the trial judge’s knowledge of the accused’s record andthe insistence by the Crown on the record; the reference before the trial judge to the potential introduction of similar fact evidence; thereference before the trial judge to a potential dangerous offender application; the trial judge’s adverse credibility finding on the voir diredetermination relating to the application for an adjournment; the withdrawal for ethical reasons before this same judge by Mr.

Mavros’previous lawyer; and, the way in which the record and the circumstances of the previous sexual assault convictions came to be placedbefore the trial judge. [2] The application is denied. [3] The test for apprehended bias is well established and is not in dispute. The issue on this application is whether that high testhas been met. [4] Mr. Mavros has, through a previous lawyer, commenced the trial before the Provincial Court judge in question by askingthat judge to hear two, apparently inter-twined, Charter applications.

During the course of those applications, the trial judge wasprovided with extensive information about Mr. Mavros’ background, including not only his criminal record, but also extensive detailsabout the allegations of the sexual assault crimes in British Columbia, in addition to details about the allegations relating to thesecharges. Although the trial judge learned additional information from the Crown about Mr. Mavros’ criminal background, including theB.C. court’s reasons for finding Mr.

Mavros guilty of the charges there and the B.C. court’s sentencing reasons, during the adjournmentapplication, it cannot be said that the additional information about the record and criminal background was materially different fromwhat the judge had already learned. [5] This court must therefore focus on the new information acquired during the adjournment application: the withdrawal of Mr.Mavros’ then lawyer “for ethical reasons”; the trial judge’s finding against Mr.

Mavros on the issue of credibility on an issue whichappears to be highly collateral to the adjournment application; and the way in which the court acquired evidence on the adjournmentapplication. [6] I have no doubt that the Provincial Court puts procedures in place to ensure, as much as practicable, that trial judges are notthe same judges who have heard extensive bail applications; although judges are trained to disregard evidence which is not admissible,and although they must give reasons for their eventual decisions which reasons allow the public to track their reasons to be satisfied thatno improper considerations have been taken into account, it is obviously best to try to ensure that the need to exclude evidence which hasbeen heard but which is inadmissible arises as infrequently as possible. [7] When this court considers all of the ways in which the assigned trial judge came to be aware of pejorative informationconcerning Mr.

Mavros, this might be a situation in which there would be a reasonable apprehension of bias. This trial judge had much,much, more information before him than Mr. Mavros’ criminal record and the potential for the calling of similar fact evidence and thepotential for a dangerous offender application. However, the substance of all of this information was voluntarily put to the trial judge inthe context of two Charter applications. The withdrawal for ethical reasons, referred to in some American jurisprudence as a “noisywithdrawal”, obviously causes additional problems.

There does not appear to be any basis for the trial judge’s conclusion about the basisfor the then lawyer’s request. Because the finding of credibility was made with respect to the accused’s testimony about getting in touchwith his then lawyer after the accused had been transferred to the Edmonton Institution but before that lawyer was given leave towithdraw at trial, that credibility finding appears to have been made on an issue which does not appear to have any clear relevance to theadjournment application.

Undertaking a voir dire with an unrepresented accused without having given the accused information aboutwhether evidence was required etc. also raises problems. However, after having initially made a decision not to grant an adjournment, atthe conclusion of the voir dire the trial judge did grant an adjournment. [8] Overall, however, the court concludes that, when he was represented by another lawyer, Mr.

Mavros voluntarily put twofully argued Charter applications, including an Askov application, before the trial judge and because the trial judge decided that that hewould give his decision on those applications at the conclusion of the trial, i.e. after taking into account trial evidence, Mr. Mavros hashimself inextricably linked this assigned trial judge to the trial. In these circumstances, the court must decline the prohibition application. Cases and authority cited [9] By Mr.

Mavros: R v Stark [1994] OJ 406 (QL); R v RDS [1997] 3 SCR 1997 (QL); R v Musselman(ON SC), 2004 OJ 4226 (QL); R v Kelly 2004 BCSC 1063 (QL). [10] By the Crown: R v Moman, 2008 MBQB 311; Awasis Agency of Northern Manitoba v Allen, 2013 MBQB 47; R v Johnson (1991), (ON CA), 44 OAC 249 (ONCA); R v Jones (Nos. 1& 2) (1974), (ON CA), 2 OR(2d) 741(ONCA) leave to appeal refused (1974), 2 OR (2d) 741n (SCC); R v Arcand (2004), (ON CA), 193 OAC16 (ONCA); R v Gilberg, 1974 ALTASCAD 85 [1974] AJ No 160 (ABCA) leave to appeal refused (1975) 53 DLR (3d) 441n(SCC); R v Felderhof, [2002] OJ No 4103 (ONSC); R v H.(D.C), 2001 ABQB 268; R v Abdi (1993), 146 AR 99 (ABQB); R v Fateaux,[1997) AJ No. 929 (ABQB); R v S.(R.D.), [1997) (SCC), 3 SCR 484 (SCC) ; R v Kwandahor-Mensah, 2001 ABQB269; R v Webb, [2001] OJ.

No.448 (ONSC); R v Barges (2004),64 WCB (2d) 96 (ONSC). [11] On whether the Impugned Evidence was properly before the Trial Judge: R v Beals, [1993] NSJ No. 436 (NSCA); R vWhite, 2010 ABCA 66; R v Devera, 2010 ABCA 154; R v Bitternose, 2009 SKCA 54. [12] On whether there is a reasonable Apprehension of Bias – a Reasonable Apprehension of Bias – the Test: R v S.(R.D.), 1997

324 (SCC), [1997] 3 SCR 484 (SCC); R v Roberts, 2003 SCC 45. [13] On the presumption of Judicial Integrity as the Starting Point and the Reasonable Person is Presumed to Understand thisPrinciple: Cojocaru (Guardian ad litem of) v British Columbia Women's Hospital and Health Center, 2013 SCC 30; R v Brertton,1998 ABQB 90; R v Kitchen, 2012 ONSC 704; Kelly v Palazzo, 2008 ONCA 82, leave to appeal refused [2008] SCCA No 152 (SCC);R v Okezie, 2013 ONSC 7191; R v Bagot, 2000 MBCA 30; R v Werner, 2005 NWTCA 5; R v Morrison, 2014 ONCJ 721. [14] On the fact that proof of Reasonable Apprehension of Bias Requires Cogent Evidence - It is Dangerous to Make ThisStandard Too Low or Easily Met: Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 176 leave to appeal refused (2008) 469 AR396 (note) (SCC); Bizon v Bizon, 2014 ABCA 174; R v Giroux, [2001] OJ No 5494 (ONSC); R v Levin, 2012 ABQB 735; R vTrunzo, 2012 MBQB 211. [15] On the fact that no Reasonable Apprehension of Bias is created by knowledge of the Criminal Record: R v Herzberg, 2002SKCA 102; R v Nieman, (YK SC), [1981] YJ No 17 (YTSC); R v Walker, (AB CA), [1968] 3 CCC254 (ABCA); R v Rathgeber, 2010 SKCA 58 leave to appeal refused [2010] SCCA No. 228 (SCC); R v Bulmer, [1999] OJ No 4406(ONSC), aff'd [2000] OJ No. 4418 (ONCA), leave to appeal refused [2001] SCR vii (note) (SCC); R v McKenna, 2014 NSSC 92. [16] On the fact that there was no Reasonable Apprehension of Bias - Mentioning Potential Dangerous Offender Application: R vKostyk, 2014 ONCA 447. [17] On the fact that there was no Reasonable Apprehension of Bias based on Pre-Trial Decisions and Credibility Findings: R vKlostergaard, 2005 ABQB 386; R v Bolt (1995) 1995 ABCA 22 162 AR 204 (ABCA); R v Novak (1995)(BC CA), 59 BCAC 152 (BCCA); R v Blackwood, 2010 ONSC 2202 (aff'd with only passing reference to this point 2013 ONCA 219);R v Heisinger, 2007 NWTTC 11. [18] On the fact that there was no Reasonable Apprehension of Bias based on Counsel's comments in withdrawing from therecord: Cunningham v Lilles, 2010 SCC 10; R v B.(N.C.), 2012 ABCA 238, leave to appeal refused R v Bolinatz (2013), 572 AR 400(note) (SCC); R v B.(O.F.), 2006 ABCA 130; R v T.(C.J.), 2010 MBCA 61; R v G.(A.) (1998), (ON CA), 114 OAC336 (ONCA) (aff'd without reference to this point 2000 SCC 17). [19] On the fact that prohibition is not available in relation to any adjournment application: Decisions: R v Al-Enzi, 2014 ONCA569 (leave to appeal refused 2014 CarswellOnt 17353 (SCC)); Scheidt v Scheidt, 2014 ABCA 24; R v Toor, 2001 ABCA 88; R vLeggo (1982), (AB KB), 142 DLR (3d) 756 (ABQB); R v Bartholemew (1946), (AB KB), 3 CR368 (leave to appeal dismissed (1947), 3 CR 368 at 374 (Alberta Supreme Court, Appellate Division, as it then was); R v Fauteaux (1997), (AB KB), 208AR 13 (ABQB).

Footnoted Cases - Available Upon Request: R v Tortora, 2010 BCCA 547; R v Zeplin (1998), (NL CA), 165 Nfld.& P.E.I.R 306 (NFLDCA); R v Richard (1992), 55 OAC 43 (ONCA); R v McGibbon (1998), (ON CA), 31 OAC 10(ONCA); R v Nichols (2001), (ON CA), 148 OAC 344 (ONCA) leave to appeal refused [2001] 1 SCR viii (note); R vL.(G.H.) (1995), (ON CA), 83 OAC 208 (ONCA); Zundel, Re, 2003 FC 1089. [20] By the court: On the issue of a lawyer’s withdrawal for ethical reasons: R. v Al-Enzi 2014 ONCA 569 at para. 74 ff; Butler v U.S. 414 A 2d 244; People v Johnson 62 Cal.App 4th 608 (1998); (1980)S.E.

Thrower, Neither Reasonable nor Remedial: the hopelesscontradictions of the legal ethics measures to prevent perjury 58 Clev. St. L. Rev. 781 2010; M. Proulx and D. Layton, Ethics andCanadian Criminal Law, Irwin Law Inc., 2001, at ch. 7. Appendix A: Trial judge’s reasons for refusing recusal application 1. Background [21] Mr. Mavros is charged with five serious crimes, i.e. that he did, on or about April 11, 2009, at Edmonton, Alberta, attempt tochoke , assault, confine, sexually assault and threaten a female complainant. Moreover, in light of his record, Mr.

Mavros may well, ifconvicted, be the subject of a dangerous offender application. [22] Mr Mavros was originally charged with these offences in November, 2011. A complicated procedural history ensued, partlyas a result of Mr. Mavros being tried, convicted, and jailed in British Columbia for two sexual assaults which arose after the charges inthese proceedings. [23] In July, 2015, the judge who was by reason of the applications themselves fixed with the responsibility of being the trialjudge, heard Mr.

Mavros’ application for Charter relief pursuant to the provisions of s. 7 of the Charter in relation to allegedly lostevidence and also pursuant to the provisions of s. 11(

b) of the Charter in relation to the allegedly unreasonable delay to trial. The Askovapplication was based on an agreed statement of facts; at the outset of the Askov hearing, there was an issue around the fact that Mr.Mavros wanted to add some items to the agreed statement of facts; this issue was relatively quickly resolved and the applicationcontinued on the basis of the agreed statement of facts. During the course of the July applications, Mr.

Mavros provided the trial judgewith transcripts of his bail hearings during which extensive information was placed before the court not only about the allegations in thiscase, but also about the allegations in the B.C. proceedings. At the conclusion of the application, that judge advised the parties that hewould reserve his decision on these two applications until after the conclusion of the trial – which had been scheduled to be heardstarting on August 17, 2015. [24] On August 17, 2015, Mr. Mavros’ then lawyer explained to the court the serious difficulties which he had experienced in

trying to meet with his client to get instructions both before and after Mr. Mavros was transferred from a medium security institution in B.C. to a maximum security institution in Edmonton. The Crown was, understandably, anxious to start the trial and attempted to introduce an agreed statement of facts. Mr. Mavros indicated to his then lawyer that he wanted to speak to him about the agreed statement of facts. The lawyer then asked the court for a 2 day adjournment to clarify his client’s instructions.

The court granted that adjournment. [ 25 ] On August 19, 2015, then defence counsel informed the court that he had been able to meet with his client late in the afternoon of the day before. The then counsel applied for leave to withdraw, citing ethical reasons: As a result of [the discussion with my client late yesterday afternoon] I have come to the conclusion that either I’ve been discharged as his counsel, depending on what he meant by some of his comments, or I’m in the position where I would withdraw as his counsel.

This has nothing to do with a retainer issue, just to clarify, but it has to do with a breakdown in the relationship between us and ethical reasons that make it impossible for me to continue as his counsel. [ 26 ] The trial judge withdrew to consider the lawyer’s application and then, referring to the Supreme Court’s decision in Cunningham which apparently had been provided to him at some point not shown on the record, granted that application. [ 27 ] However, before granting defence counsel’s application to withdraw, the judge said: The public interest demands, and the proper administration of justice demands, that these dated charges proceed to trial now. [ 28 ] After granting defence counsel’s application to withdraw, the trial judge explored with defence counsel whether he would be amenable to acting as court appointed counsel for the purpose of cross-examining the complainant.

The former defence counsel declined to do so. [ 29 ] Without hearing from either the accused or the Crown on the issue of adjournment of the trial in light of withdrawal of defence counsel, the judge then said: Mr. Mavros, given the history on these matters that I have already referred to, I am ordering this trial to proceed. I don’t come to this decision lightly, having regard to the jeopardy that you face if convicted. However, to do anything otherwise would be to make a mockery of our criminal justice system. [ 30 ] Mr.

Mavros’ then counsel then left the courtroom. [ 31 ] The trial judge then, after asking permission from the Sheriff to do so, allowed Mr. Mavros to sit at counsel table “as he is going to be representing himself at this trial”. [ 32 ] The Crown then reminded the court of the agreed statement of facts which had been referred to and asked the trial judge to ask the accused if he agreed with the agreed statement of facts. [ 33 ] The Court did ask Mr. Mavros about the agreed statement of facts. [ 34 ] Mr.

Mavros responded that he was not in a position to represent himself. [ 35 ] There then followed a relatively lengthy discussion between the trial judge and the accused about the delays which had occurred in getting the charges to trial. During that discussion, Mr. Mavros indicated that he was content with his just discharged counsel and explained to the trial judge that the previous defence counsel: told me he wanted written instruction that I was going to testify. I make that decision after the Crown’s case is presented. I think that’s the only one thing that I have control over but I would do that.

And now here I am today and he makes an application to withdraw and it’s basically due to the fact that I don’t agree to the admissions and the reason why I would entertain that, I would take a look at that, but now I’m sitting in a 23 hour lock-up, solitary confinement at the Edmonton Institution . . . [ 36 ] Mr. Mavros then goes on to repeat his assertions that this is a serious matter and that he cannot defend himself. [ 37 ] There is then a lengthy discussion between Mr.

Mavros and the court about a disclosure issue. [ 38 ] One of the prosecutors then intervened: The disclosure he’s speaking of was not [one of the first prosecutors] had. I came on to this file and then [the second prosecutor] came on to this file. It was a request made to Dectective Riou. . . who was the second detective on this file. . .

And so that disclosure, as soon as we received it, which was – I don’t have the exact date but I believe the first one was June [2015 as later cleared up with the prosecutor] and then I believe more came in July [2015] - we had actually requested that information. [ 39 ] The last of the disclosure the prosecution referred to had just been presented to the accused’s lawyer who had just been given leave to withdraw.

The prosecutors then asked for a short delay to allow the accused to personally obtain that disclosure after redaction to protect the privacy of individuals named in the disclosure. [ 40 ] After the discussion about the June, July, and August 2015 disclosure, the accused stated: And I’ve been requesting this information from the start from the lawyers with no reply so – and I actually contacted the employer myself with no reply in this evidence that was just received. No, it’s trying to act on it and trying to lay a foundation. The Court: Right.

Okay, so your position is you’re not a lawyer, you’re not feeling comfortable to represent yourself at this juncture.

[ 41 ] The court then asked for the prosecutors’ position and learned that the Crown intended to call evidence in a voir dire on Mr. Mavros’ adjournment application. Mr. Mavros asked: “Who is going to ask question here?” [ 42 ] The Court responded: . . . you can give your testimony under oath in terms of why you feel that an adjournment is warranted in this case and the facts. . . and the Crown would only be examining you with respect to those issues. Well, this is your application, sir, and as I understand it, I have already indicated I’d like to proceed now . . .

You can give some explanations under oath if you wish. The Crown would have an opportunity to ask some questions about those facts that you’re relying on. [ 43 ] Mr. Mavros then said: Now, I’m seeking an adjournment to obtain legal counsel. Is that what you’re talking about here? [ 44 ] The court then embarked on a voir dire on an adjournment application. While Mr. Mavros was giving evidence, the court asked him about his education and employment and then referred to Mr. Mavros’ reference to challenges and impediment to getting proper legal counsel and asked Mr.

Mavros, “So why don’t you talk a little bit about that?” [ 45 ] After Mr. Mavros had finished testifying, the Crown then cross-examined Mr. Mavros extensively on his record, the housing of sexual offenders, how many showers he had access to, etc etc. The Crown also cross-examined Mr. Mavros extensively about the number of lawyers he had had during the B.C. and Alberta proceedings. The Crown then called an official from the Edmonton Institution who gave evidence about the cost of using a phone card, the fact that no funds had been transferred with Mr. Mavros so that there was no money on Mr.

Mavros’ phone card, and that there was no record of Mr. Mavros having tried to telephone a lawyer or having sent in a written request to telephone or meet with a lawyer. [ 46 ] The Crown then made submissions on the law, referring essentially on Beals . During the course of the adjournment application, the Crown provided the trial judge with copies of two of the B.C. decisions dealing with Mr.

Mavros, the oral reasons for conviction and the oral reasons for sentence: R. v Mavros 2013 BCSC 2430 ; R. v Mavros 2014 BCSC 2347 . [ 47 ] The Crown proposed that the trial should start, even if it would then be required to adjourn it for a time to allow a lawyer to be retained from cross-examination of the complainant. [ 48 ] When Mr. Mavros had finished making his submissions, the trial judge made these comments: One of the factors that you may have heard about when Crown was reviewing the factors that I need to look at in considering your request is whether you are prepared to waive your

section 11(

b) rights, that is, are you prepared to waive the period of day from now until the next trial date if your adjournment is granted> that’s one of the factors that I need to consider. So, I need to ask you that question. [ 49 ] Mr. Mavros replied, “I’m not sure what the question is My right . . .” [ 50 ] The trial judge then rephrased his question: If I were inclined to grant an adjournment and that takes us from today to a year from now, for example, that one-year time period – you have already brought an application for delay with regard to past matters.

My question to you is are you prepared to waive this – let’s say it’s an additional year – are your prepared to waive that period of time from now until the next trial date that cannot be factored into your Charter delay application because you are the one asking for the adjournment? The Accused: Yes [ 51 ] The trial judge then took time for consideration. On August 20, 2015, during the course of giving reasons on the application for adjournment, the trial judge said: This conflicting evidence [referring to the evidence of the correctional officer] raises very serious concerns about the credibility of Mr.

Mavros’ representations to the Court respecting his diligence in these matters. [ 52 ] The trial judge then commented on Mr. Mavros’ “ill motive” in dealing with lawyers. [ 53 ] Nonethelss, on August 20, 2015, the court granted Mr. Mavros an adjournment and put the matters over to September 10, 2015 when, “I expect to have you in a position to confirm your new legal counsel and to set a date. . . . But you need to get on that right away . . .” [ 54 ] On December 4, 2015, counsel for Mr.

Mavros then brought an application before the trial judge to recuse himself on the basis of apprehension of bias; that application was heard on December 15, 2015. The judge’s reasons for refusing to recuse himself are attached as Appendix A. [ 55 ] The proceedings with which we are concerned took place in Edmonton, where there are a great many judges sitting in the Provincial Court - Criminal Division. 2. Publication ban [ 56 ] Because of the reference in these reasons to Mr.

Mavros’ record and potential dangerous offender jeopardy, on my own motion, but by analogy to the statutory ban available on bail and bail review, I have issued a temporary publication ban as set out above. 3. The test for recusal on the basis of apprehension of bias is onerous

[ 57 ] The defence does not disagree with the Crown’s case law concerning the very high bar which has been set to prove a reasonable apprehension of bias. For that reason, I don’t propose to review all of the cases cited on that issue by the Crown, including the cases that speak of the duty to sit, the presumption of judicial integrity, etc. Because the trial judge granted an adjournment, I do not propose to review the cases on the availability of prohibition with respect to adjournments. I will deal only with the issues that arise in connection with the facts of this particular case. 4.

Alleged apprehension of bias in this case [ 58 ] Mr. Mavros bases his application on the cumulative effect of the following six specific factors: the trial judge’s knowledge of the accused’s record and the insistence by the Crown on the record; the reference before the trial judge to the potential introduction of similar fact evidence; the reference before the trial judge to a potential dangerous offender application; the trial judge’s adverse credibility finding on the voir dire determination relating to the application for an adjournment; the withdrawal for ethical reasons before this same judge by Mr.

Mavros’ previous lawyer; and, the way in which the record and the circumstances of the previous sexual assault convictions came to be placed before the trial judge. [ 59 ] From my perspective, Mr. Mavros’ concerns can be grouped according to issues that arose prior to the adjournment application and concerns that arose at the adjournment application.

a) Knowledge of records – knowledge of potential application for dangerous offender status [ 60 ] This is not, of course, a case of a trial judge knowing the record of an accused. [ 61 ] As I have attempted to detail above, this trial judge knows much, much more than the accused’s record; unusually, he has information about allegations, and findings in relation to a related record. [ 62 ] The law is replete with instances of shielding the trier of fact from knowledge of an accused’s record.

The Criminal Code itself indicates that no indictment in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain a reference to previous convictions: s. 664 .

There is some analogy to that policy perspective in this case to the accused’s jeopardy in relation to dangerous offender status in light of his conviction and previous convictions. [ 63 ] Despite the fact that trial judges do sometimes hear about an accused’s record prior to conviction, I have no doubt that the Provincial Court puts procedures in place to ensure, as much as practicable, that trial judges are not the same judges who have heard extensive bail applications: although judges are trained to disregard evidence which is not admissible, and although they must give reasons for their eventual decisions which reasons allow the public to track the reasons to be satisfied that no improper considerations have been taken into account, it is obviously best to try to ensure that the need to exclude evidence which has been heard but which is inadmissible arises as infrequently as possible. [ 64 ] However, on the facts of this case, Mr.

Mavros voluntarily put all of this extended information about his criminal record before the trial judge in connection with Charter applications. Although the trial judge did learn some additional facts about Mr. Mavros’ criminal background as a result of the adjournment application, I cannot say that this additional information is, in the circumstances, material. [ 65 ] Therefore, extended information about Mr.

Mavros’ criminal record and about the potential application for similar fact evidence and for a dangerous offender hearing does not, in and of itself, constitute a basis for a reasonable apprehension of bias in the circumstances here. [ 66 ] I must then go on to consider the other issues raised by Mr. Mavros, singly and cumulatively.

b) New information acquired as a result of adjournment application when accused unrepresented

i) Withdrawal for ethical reasons [ 67 ] The Alberta Law Society’s Code of Conduct for lawyers states: Obligatory Withdrawal 2.07

(5) A lawyer must withdraw if:

a) discharged by a client

b) a client persists in instructing the lawyer to act contrary to professional ethics, or

c) the lawyer is not competent to continue to handle a matter. [ 68 ] It is interesting to compare the relative lack of discussion in Canada of what is sometimes referred to as “noisy withdrawal” in the United States with the decades of controversy on that topic in that jurisdiction.

As the Ontario Court of Appeal has pointed out in Al- Enzi , once a trial judge hears that an accused’s lawyer either asks for leave to withdraw for ethical reasons – presumably indicating a voluntary withdrawal – or informs the court that they must withdraw for ethical reasons – presumably indicating a mandatory ethical withdrawal, there is a risk that the trial judge, as happened in that case, and/or the public will blame the accused for the withdrawal or that some other misunderstanding will occur.

It was not necessary for the Supreme Court of Canada to deal with the issue of the consequences of the withdrawal for ethical reasons in Cunningham , so neither lawyers nor judges have received any guidance on that score.

[ 69 ] In the United States, it may be that there is no consensus on what effect withdrawal for ethical reasons has on the conduct of the proceedings.

As is pointed out in the Hopeless Contradictions article, some American decisions suggest that the judge before whom the withdrawal was made should adjourn the matter to another judge, Butler, while other courts appear to favour the narrative approach, i.e. on the eve of, or during trial, if a lawyer finds that she cannot act ethically, she should continue to represent the accused, but only put the accused up to provide his own narrative Johnson . [ 70 ] Here, the defence counsel did not state that his ethical reasons were mandatory, but, given the fact that counsel was making the application on a date set for trial, we can presume that they were not voluntary.

Counsel who asked for leave is senior and well respected, so we know that (

c) doesn’t apply. Mr. Mavros said that he was happy with his lawyer so (

a) doesn’t apply. On the facts here, the only possibility seems to be that the lawyer was withdrawing for reasons set out in (b). There does not appear to have been any reason for the trial judge to have assumed what defence counsel’s reasons for withdrawal were, especially in light of the fact that the trial judge knew that a previous concern expressed by the accused about a previous agreed statement of facts had in fact been relatively quickly resolved. [ 71 ] In the result, the trial judge granted the adjournment, despite his credibility finding and despite what he assumed was the basis for withdrawal.

The assumption about the kind of person Mr.

Mavros is arising from the circumstances of the lawyer’s withdrawal is, therefore, just one of the many matters which the trial judge will not take into account in making trial decisions. ii) Trial judge’s involvement in obtaining evidence on the adjournment application and credibility finding [ 72 ] I accept that the trial judge did not provide the unrepresented accused with information about the adjournment application: whether it was necessary to call evidence and expose oneself to cross-examination, what the judge had to consider in determining whether an adjournment should be granted, etc.

Indeed, everything would have suggested to Mr. Mavros that the trial judge had already made an adjournment decision before embarking on the voir dire [ 73 ] I also accept that the trial judge’s finding against Mr. Mavros’ credibility in the voir dire was unfortunate especially in the circumstances where the facts concerning Mr.

Mavros’ difficulty in contacting his previous counsel appear to have only the most remote connection with his application for an adjournment having lost the services of that lawyer and in the circumstances where the defence lawyer’s own information about the difficulty of having meaningful access to his client appears not to have been taken into account by the trial judge. [ 74 ] In the result, even after having originally made an order that the trial would continue, the trial judge changed his mind and granted an adjournment.

The finding of credibility on the voir dire is presumably one of those findings which will be compartmentalized to the voir dire and will not be used in the trial to make decisions on whether the Crown has proved beyond a reasonable doubt that Mr. Mavros has committed the crimes with which he is charged. iii) Overall assessment [ 75 ] If I were to consider only the total number of ways in which the trial judge has become aware of pejorative information relating to Mr.

Mavros, this might well be one of the rare situations in which I might have to conclude that there is a reasonable apprehension of bias on the part of the trial judge. However, given that Mr.

Mavros has previously, when represented by counsel, fully argued two Charter applications before the assigned trial judge in a situation where the trial judge is presumably going to take the trial evidence into account in deciding those Charter applications, the accused has made it essentially impossible to have a different judge appointed as the trial judge: the Charter applications and the trial are inextricably linked. [ 76 ] Finally, I note that Mr.

Mavros is now represented by another senior well respected member of the defence bar who is ready to go to trial tomorrow, March 11, 2015. [ 77 ] In all of those circumstances, I deny the application for prohibition based on an apprehension of bias. Heard on the 3 rd and 9 th days of March, 2016. Dated at the City of Edmonton, Alberta this 10th day of March, 2016. J.B. Veit J.C.Q.B.A.

Appearances: Peter J. Royal, Q.C., Royal & Company for the Applicant Tania Holland, Crown Prosecutors' Office for the Crown/Respondent APPENDIX A Ruling (Recusal) THE COURT: This is my decision on Mr. Mavros's recusal application. I'll start with a brief introduction. At the heart of Mr. Mavros's recusal application is the fact that I have seen his Criminal Code in the context of a voir dire.

Given the recent serious and related convictions on his record, he argues that my knowledge of his record is highly prejudicial, and a reasonable person would conclude that such knowledge would at least unconsciously bias my decision, resulting in an unfair trial. The Crown has vehemently opposed this application. Having carefully considered the application and the Crown's reply, I have determined that the recusal application is without merit, and I dismiss it accordingly. Therefore, I will continue to be seized as the trial judge for the remainder of this trial. I now turn to my reasons for this decision.

They are organized under the following headings: Procedural History of the Recusal Application, Position of the Parties, Relevant Case Law on Recusal, and Analysis Leading to My Decision. Starting first with the procedural history of this recusal application: On Friday, December 4th, 2015, Mr. Royal, on behalf of Mr. Mavros, brought an application seeking

that I recuse myself from the proceedings before me citing a reasonable apprehension of bias. That same day, I determined that I would not recuse myself from making a decision on the nature of the proceedings. Further, I advised that I would consider the application again following that decision. As the Crown was only notified of the recusal application some fifteen minutes prior to the commencement of court on December 4th, 2015, I advised that I would permit them to make submissions at a later time. On Monday, December 7th, 2015, I determined that the proceedings before me were for trial.

The Crown then responded to the recusal application in full. On Tuesday, December 8th, 2015, I advised that I would give my decision on Tuesday, December 15th, today. I'll now review the position of the parties. Mr. Mavros's position can be summarized as follows: He does not suggest there is any evidence of actual bias. Rather, he alleges reasonable apprehension of bias. In particular, he argues that from the perspective of a reasonable and objective person who understands the process and who witnessed what happened in the proceedings thus far, there simply cannot be a fair trial.

This is because his serious, recent, and related record was entered before me in a voir dire, and no fair minded person would think that I could disabuse myself of such knowledge. Mr. Mavros also expressed concerns that, firstly, I made an adverse credibility finding against him in relation to his adjournment request. Second, that I have -- that I have knowledge that the Crown had in the past considered advancing similar fact evidence, and thirdly, that I have knowledge of the fact that the Crown will consider bringing a dangerous offender application if Mr. Mavros is convicted on the charges before me. Mr.

Royal, on behalf of Mr. Mavros, backed away from these latter three concerns when responding to the Crown's reply to the application and asked me to focus on my knowledge of Mr. Mavros's criminal record. Lastly, Mr. Mavros alleges that the Crown unfairly tendered his criminal record when he took the stand without the benefit of legal advice in his adjournment application on the last set of trial dates. He states that the only way his criminal record should properly be before this Court is when he makes a fully-informed decision take the stand with the advice of legal counsel.

The Crown's position is as follows: Nothing in the proceedings thus far gives rise to

bias, actual or apprehended. The fact that I have knowledge of Mr. Mavros's criminal record in the context of a voir dire for the sole purpose of making a decision on his adjournment application does not give rise to a reasonable apprehension of bias. The Crown noted that the criminal record was not tendered for credibility, but solely for the issues relevant to Mr. Mavros's adjournment application. That is, his record demonstrated both his prior experience with the criminal trial process and as well gives some indication of his jeopardy if convicted on the counts before me.

The reasonable person test referred to by Mr. Royal presumes a person with knowledge of the traditions of integrity and impartiality and also of the fact that impartiality is one of the duties that judges swear to uphold. The Crown further states that the role of a trial judge demands that he or she can hear evidence in a voir dire and disabuse himself or herself from any non-admissible evidence. This gatekeeper role of a trial judge is well established in our justice system and is premised on the judge's oath of impartiality and the presumption that judges act in accordance with their oath of office.

Trial judges often rule on the admissibility of evidence that is highly prejudicial, such as confessions. When they rule such evidence inadmissible, trial judges can and do disabuse themselves of this knowledge when coming to a verdict of guilty or not guilty. Further, the fact that I made an adverse finding of credibility against Mr. Mavros in a voir dire on his adjournment application does not give rise to a reasonable apprehension of bias because my ruling was limited solely to the four corners of the voir dire.

Similarly, my knowledge of the Crown's past consideration of similar fact evidence was relevant to Mr. Mavros's Askov application in explaining the complexity of the case and the time estimate for the number of trial days booked. The Crown also notes that trial judges do hear Crown applications to introduce similar fact evidence in the trial. This is done in a voir dire. If unsuccessful, the trial judge will disabuse himself or herself of such evidence heard in the voir dire and go on to hear the balance of the trial.

The Crown contends that the alleged prejudice is higher when the judge -- a judge hears the actual details of such an application as opposed to the case at bar where I've only been advised that the Crown was at one time considering on making such an application. As well, the Crown argues that my knowledge of the Crown's consideration of a potential dangerous offender application respecting Mr. Mavros, if convicted on the charges before me, was relevant both to my decision in his Askov application, that is, in respect of

weighing his interests -- his interests as against society's interests in having serious matters adjudicated on the merits and to my decision on the adjournment application, that is, his potential jeopardy faced if convicted. For these reasons, the Crown suggests that neither of these three additional factors give rise to a reasonable apprehension of bias. I'll now review the case law provided by counsel on recusal, starting with the four cases provided by Mr. Royal. Mr.

Royal states that the test for reasonable apprehension of bias is properly stated by the Nunavut Court of Justice in R v Noah 2010 NUCJ 22 at paragraph 13, where the Court states the test outlined by Justice de Grandpre in his reasons in Liberty v National Energy Board. The Court in Noah recites this test as: Would a reasonable, fair-minded, and properly informed person viewing the matter realistically and practically think that there is a real likelihood or probability of bias so as to render the trial unfair? Mr. Royal goes on to refer to the Supreme Court of Canada case in R v S(RD) 3 SCR at page 484.

In particular, he refers me to paragraph 100 of that decision where the Court states as follows: If a reasonable apprehension of bias arises, it colours the entire trial proceedings, and it cannot be cured by the correctness of the subsequent decision. In that same paragraph, the Court goes on to say: The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the words or conduct of the judge. Mr.

Royal advised that the cases of R v Kelly and R v Curragh -- pardon my pronunciation -- are simply provided to show the application of these general principles. Mr. Royal did not refer me to any specific passages from either case. In reviewing Kelly, I note that the Court concluded that a reasonable apprehension of bias

existed to prevent a judge from rehearing a dangerous offender application where his earlier decision to declare Mr. Rogers a dangerous offender was overturned on appeal. And in R v Curragh, the Supreme Court of Canada determined that a reasonable apprehension of bias existed where a trial judge privately phoned a senior member of the Attorney General's staff to request the removal of the Crown prosecutor and warned that if he would -- and warned that he would otherwise take steps to secure that end.

As outlined in the headnote of that decision, the Court determined that the trial judge's actions demonstrated that he was interfering with the conduct of the Crown's case and became inappropriately involved in the fray . PP I now turn to the Crown's review of the case law. The Crown started by referring to a number of paragraphs in the Supreme Court of Canada decision provided by Mr. Royal in R v S(RD). In particular, Ms. Howery highlighted paragraph 112, which again quotes Justice de Grandpre in the Committee For Justice and Liberty.

This quote refers to the grounds required to make out an apprehension of bias as follows: The grounds for this apprehension must, however, be substantial, and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the very sensitive or scrupulous conscience. Ms. Howery then refers to paragraph 113 of that case which speaks to the high threshold to overcome when one alleges bias.

The reason for the high threshold is stated as follows: Indeed, an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge but the integrity of the entire administration of justice. Ms. Howery goes on to reference paragraph 114 of the same case for the proposition that the onus of proof is on the person alleging bias, in this case, Mr. Mavros. Further, Ms.

Howery refers to paragraph 117, which indicates, firstly, that there is a presumption that judges will carry out their oath of office to act impartially -- with impartiality, and secondly, that a reasonable apprehension of bias requires cogent evidence, demonstrating that the judge has done something sufficient to displace the presumption of impartiality. The Crown also referred to the Noah case as provided by Mr. Royal on the issue of

unconscious bias. At paragraph 55 in that case, the Court states: The proposition advanced by the applicant with respect to the possibility of unconscious bias finds no support in the jurisprudence. It is an assault upon judicial impartiality and undermines the very foundations of judicial objectivity that have been in place for hundreds of years. I now tum to the cases provided by the Crown, and I will admit all omit all citations as Ms. Howery has already provided them on the record.

First, in R v Kochan, the Alberta Court of Queen's Bench at paragraph 33 and 34 provides that courts must be wary in granting recusal applications where the facts do not give rise to an apprehension of bias. The courts link this caution, firstly, to avoiding -- to avoid encouraging parties to seek disqualification of a judge in order to secure a judge more likely to decide in their favour, and, secondly, to avoid unreasonable delays in trying the matter.

Next in R v Teskey, the Alberta Court of Queen's Bench Justice denied a recusal application where she bad previously convicted the same accused and disbelieved his testimony in the previous case, leading to a finding of guilt. In coming to this conclusion, at paragraph 75, she cites various case authority supporting a trial judge's ability to hear evidence and rule on the admissibility of confessions and similar fact evidence and continuing with the trial even in cases where the trial judge ruled such evidence inadmissible.

She goes on to state that the justice system must not accommodate recusal in these circumstances because the justice system properly depends upon the tradition of judicial impartiality. Similarly in R v Bulmer, a Supreme Court of Canada decision, and R v Bolt , Alberta Court of Appeal decision, both courts determined that recusal was not appropriate where a trial judge had previously convicted the accused in a previous trial and had made strong adverse findings of credibility against the accused, leading to a finding of guilt.

In R v BNC, the Alberta Court of Appeal, where leave to appeal to the Supreme Court was denied, rejected a recusal application where the trial judge heard unsolicited, highly inflammatory comments about the accused's credibility made by her counsel when seeking leave of the Court to withdraw as counsel. In rejecting recusal in these circumstances, the Court of Appeal reviewed the gatekeeper role of the trial judge at paragraph 18 as follows:

Trial judges are expected to be gatekeepers of evidence and controllers of procedure and thus are routinely expected to hear and then set aside matters that might otherwise be regarded as prejudicial. Lastly, in R v Rathgeber , the Saskatchewan Court of Appeal ruled against a recusal application where the trial judge had knowledge of the accused's prior criminal record.

Having considered the case authority provided by both defence and the Crown, the following principles relevant to my recusal application can be summarized as follows: The test for recusal for bias, real or apprehended, is based on whether a reasonable, right-minded, properly informed person viewing the matter realistically and practically would think that there is a real likelihood or probability of bias so as to render the trial unfair. Second, a properly informed person understands the principle of judicial impartiality.

Third, the onus of proof is on the party alleging the reasonable apprehension of bias, and this threshold is a high one because the type of allegation - this type of allegation calls into question both the personal integrity of the judge and the integrity of the entire administration of justice. Fourth, it is presumed that judges will carry out their oath of office and act impartially. Fifth, this presumption can only be displaced with cogent evidence, and the grounds must be substantial and not based on a person with a very sensitive or scrupulous conscience.

Sixth, the fact that a trial judge bears prejudicial evidence in a voir dire does not, on its face, provide grounds to support a reasonable apprehension of bias. To the contrary, the gatekeeper role of a trial judge requires him or her to routinely hear and disabuse themselves of matters that might be regarded as prejudicial. Seventh, there is case authority on point which holds that a trial judge's knowledge of an accused's criminal record is not grounds for recusal. And eighth, courts must be wary of granting recusal applications where the facts do not support the application.

To do otherwise can result in unreasonable delays in trying

matters and can encourage parties to seek to secure a judge more likely to decide in their favour. I now tum to my analysis leading to my decision. I am aware of Mr. Mavros's prior criminal record. It is lengthy and shows a recent set of convictions that are related to the charges before me. His record was entered as an exhibit by the Crown when Mr. Mavros took the witness stand in support of his successful adjournment application. This occurred in a voir dire at his previous set of trial dates in August of this year. Applying the relevant legal principles that I've summarized above, Mr.

Mavros has not provided cogent evidence to displace the presumption of my judicial impartiality which allows me to disabuse myself of my knowledge of his criminal record when I determine whether he is guilty or not guilty of the charges before me. To the contrary, my gatekeeper role as trial judge requires me to proceed with the trial following the hearing of such evidence in the context of a voir dire. Given that the facts do not support the application, I will not recuse myself. To do otherwise would invite further unnecessary delay in proceedings that are getting extremely dated.

Further, in my questioning of Mr. Royal, it became apparent that the mischief he is seeking to redress with this application is the manner in which Mr. Mavros's criminal record came before me. That is, the fact that the Crown entered his record when Mr. Mavros made a decision to take the witness stand without the benefit of legal advice. More specifically, Mr. Royal indicated that had Mr. Mavros's criminal record come before me as a result of him taking the stand on the advice of counsel, he would not have sought my recusal. This response demonstrates the inappropriateness of this recusal application.

There is no logic whatsoever to a position that necessarily implies that my ability to disabuse myself of Mr. Mavros's criminal record is somehow based upon the manner in which his record comes before me. That is, that I can disabuse myself of his record when he takes the witness stand on the advice of counsel, but for some inexplicable reason, I can't when he takes the stand without legal advice. As noted earlier, Mr. Mavros also alleged the following additional factors in support of my recusal: Firstly, that I have made an adverse credibility finding against him in relation to his adjournment request.

Secondly, that I have knowledge that the Crown had, in the past, considered advancing similar fact evidence. And thirdly, that I have knowledge of the fact that the Crown will consider bringing a dangerous offender application if

Mr. Mavros is convicted on the charges before me. As noted earlier, these additional three factors have been all but abandoned by Mr. Mavros through Mr. Royal. Had they not been abandoned, I would have also concluded that none of these additional factors give rise to a reasonable apprehension of bias for the same reasons expressed in relation to my knowledge of his criminal record and supplemented by the reasons provided by the Crown, which I adopt. For all these reasons, I dismiss the recusal application and I will now turn to the issue of confirming new trial dates and a date for any further preliminary applications.