R v MacDonald, 2016 ABQB 154

Court of Queen ’ s Bench of Alberta Citation: R v MacDonald, 2016 ABQB 154 Date: 20160316 Docket: 130946304U1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Adam MacDonald Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes _______________________________________________________ I. Introduction [ 1 ] This is an application by the Crown for an order of certiorari with mandamus in aid to quash the declaration of a mistrial by the trial judge, and directing the trial judge to complete the trial of the accused.

II. Facts [ 2 ] The accused is charged with the following offences: Count 1: On or about the 23 rd day of June, 2012 at or near Carseland, in the Province of Alberta, did unlawfully commit a sexual assault, contrary to

section 271 of the Criminal Code . Count 2: On or about the 23 rd day of June, 2012 at or near Carseland, in the Province of Alberta, did unlawfully for a sexual purpose touch a person under the age of sixteen years, directly with a part of his body, to wit: his hands, contrary to

section 151 of the Criminal Code . [ 3 ] The trial commenced on September 29, 2014. During the direct examination of the first witness, the Crown attempted to lead evidence from the witness that he had been messaged on Facebook by a person named Adam MacDonald, after the complainant had gone to the police. When the Crown asked the witness what was said in the Facebook communication, counsel for Mr.

MacDonald objected stating: Sir, I would submit that the Facebook communications would need to be proved as having been from the accused prior to the testimony with respect to their content being admitted, Unless he’s able to swear – well, I submit that he cannot swear that the Facebook messages were actually from the accused and not from any other potential source even posing as the accused. [ 4 ] The Crown elicited from the witness why he believed the communication was from the accused, Adam MacDonald, but did not lead the contents of the communication. [ 5 ] The complainant was the third witness in the trial.

During her evidence, she testified that about one week after the alleged sexual touching, the accused messaged her on Facebook. Counsel for the accused again objected to the admissibility of the evidence and a voir dire was entered to determine the admissibility of the evidence. [ 6 ] The accused testified on the voir dire and denied being the person who sent the Facebook messages. [ 7 ] At the commencement of defence counsel’s submissions on the voir dire , he stated: MR. KOLBA: Sir, there’s one fundamental question, not on my submissions particularly but on a procedure.

I decided not to stand immediately and then decided to let my friend- -friend complete, whether or not that was the best way to proceed. The voir dire is as a result of defence’s position that the documents were not inherently admissible, and as Your Honour pointed out, I’m to- - in that case, then, we’ll consider them under the principled approach. The concerns were not about whether or not the words were actually spoken by Mr. MacDonald or communicated by Mr.

MacDonald, but whether or not these were an actual- - an actual Facebook conversation between two individuals, and which is what they purport to be, a Facebook conversation between two individuals. In other words, in this voir dire , defence has taken the approach that although they may be authored by Mr. MacDonald, it’s not determinative of- - the voir dire is not determinative of whether or not they were authored by Mr. MacDonald.

My position is- - what my expectation was that the voir dire would determine whether or not they were admissible, and that they- - also a determination as to authorship would be determined based on evidence which might yet be called in the trial proper. So I would ask- - or my position would be that the decision at this point is restricted to whether or not these documents are admissible- - admissible, even legally admissible. I see my friend is nodding. [ 8 ] The Court then asked: THE COURT: Well, why would I find them to be admissible if I had a doubt as to their authorship? MS.

CHAMBERS: That- - right, so essentially what we’re doing is we’re finding them reliable and admissible because- - based on all the evidences I had outlined that- - that your author- - or Your Honour- - THE COURT: If I have a doubt as to their authorship- - MS. CHAMBERS: Right. THE COURT: - - then they should not be admitted in the trial. MS. CHAMBERS: Right, yeah. THE COURT: So, Mr. Kolba, I disagree. This is a bigger bite of the pie than you are expressing and that a finding that has to be made on the voir dire is whether I am satisfied on the evidence that Mr.

MacDonald is the author or the other participant in the Facebook conversation. MR. KOLBA: My reason would be this, Sir. Essentially the issue of admissibility, as raised by defence, is are these documents what they purport to be? And they purport to be a conversation between two people, one of them identified as Adam MacDonald and one of them identified as [the complainant] by their usernames on Facebook. The reliability issue was whether or not the- - it’s reliable that they are what they are purported to be.

That’s what would allow them to be entered into evidence without the voir- - if it was known from the outset that they were that, it was proven, essentially, by my friend, they may be entered into evidence without a voir dire , I’m- - I haven’t even begun to argue necessity

and reliability with that scope. THE COURT: Go ahead. MR. KOLBA: May I ask, Sir, whether or not a decision on this voir dire , then, will be determinative of the authorship of the Adam MacDonald side of this conversation, or if it’s simply evidence? THE COURT: Well, if I conclude that he was not the participant in this conversation, why would I enter the documents into the trial? MR. KOLBA: In the event there’s any more evidence one way or the other, Sir. I mean, this- - this bit of evidence is only part of the evidence in the trial proper. THE COURT: There is more. MR. KOLBA: Yes.

THE COURT: We heard more before we entered the voir dire . MR. KOLBA: Exactly. THE COURT: And I am led to believe that there will be more evidence after the voir dire is concluded. MR. KOLBA: Yes, and what I am- - frankly, I had expected at this point is that these documents would be evidence before the Court and admissible and relevant to determination of several- - all of the issues admissible at least, to be considered with all of the issues, and that there may be additional evidence in the trial proper that could affect a finding on the authorship of the Adam MacDonald side of the conversation.

THE COURT: You anticipate calling further evidence on the authorship. Why was that not called in the voir dire ? MR. KOLBA: Because that’s not an argument that I intended to make on conclusion of the voir dire , Sir. THE COURT: No, authorship is- - MR. KOLBA: I shouldn’t say, conclusively. THE COURT: Authorship is an essential ingredient of admissibility in a voir dire . If this conversation was not authored by Mr. MacDonald, why would the document be considered in the trial? MR.

KOLBA: I see- - I think I see the problem, and- - [...] THE COURT: There was an objection made to the entry of the document on two bases. One, it is not really a Facebook document, and, two, Mr. MacDonald did not participate in it. We had a voir dire , and I believe we fully heard the evidence on those two issues. The voir dire is over.

I am prepared to open it if some further evidence ought to be heard, but, if not, the voir dire is concluded, and the outcome of the voir dire will be the document is admissible if I believe that it is Facebook, if I believe it is relevant, if I believe it is reliable, and that means I have to make a determination whether Mr. MacDonald was the participant. It is not reliable if he was not the participant. It is not admissible if he was not the participant. [ 9 ] Counsel for the accused continued his submissions on the voir dire .

He concluded by submitting “...the author of the communications is not necessarily Adam MacDonald.” [ 10 ] The trial judge found the Facebook communications to be admissible. In the context of his ruling, he disbelieved the accused’s evidence denying he was the person engaged in the Facebook conversation with the complainant stating: I do not believe Mr. MacDonald’s denial that he was the person engaged in the conversation with [the complainant]. I find the denial untruthful. I make this finding on truthfulness for these reasons: 1. The regularity of the conversation.

It appears to come by contact from his Facebook page to hers in what is described as the regular manner. 2. The contact occurred two days after [the complainant] and Mr. MacDonald met and had a personal encounter of some manner, the full details of which remain in issue in this trial. 3. Speculation that another person posing as Mr. MacDonald cannot be sustained. I cannot speculate in favour of a scenario whereby the young person described as [the complainant’s] best friend, who heard a brief reporting of the wedding the following day, could locate, access, and impersonate Mr.

MacDonald on his Facebook account. ... I find, despite and in the face of Mr. MacDonald’s denial, that he did engage in the Facebook conversation on the 26 th of June, 2012, as recorded by Exhibit 1, which is, therefore, relevant and admissible in the trial proper. [ 11 ] After the voir dire ruling, the trial continued. At the conclusion of the day, the Crown advised that its case was concluded. Counsel for the accused advised the court, “[t]here will be a defence case,” and the matter was adjourned for continuation.

[12] On September 1, 2015, the continuation date, the trial judge raised the issue of a mistrial on his own motion. I note that at thispoint in the trial, the defence had not advised whether it still intended to call evidence, and if so, what evidence it was calling. THE COURT: Ms. Chambers and Mr. Kolba, your comments have raised for me a concern that has been nagging for some time,and that is arising from the conduct of the voir dire on the Facebook exhibit.

And I have a substantial doubt as to the correctness of theposition I took, which was that admissibility of the document, which states in print a Facebook exchange between the complainant andMr. MacDonald, as I found, required that I find that he was the participant in that exchange. He took the witness stand, denied that he was the participant. I ruled that he was. I found his evidence to be untruthful. And I think thatwas an error and that it was an error of such a kind that the trial cannot continue.

So I invite your comments on the notion that I have committed an error and the error results in a mistrial. [13] After the trial judge raised the issue of a mistrial, the accused made an application for a mistrial which the Crown opposed. [14] The trial judge declared a mistrial stating: But I do believe that I made a mistake and that I took away the function of the jury to make the determination of who was the other partyto the Facebook exchange.

And having taken away that function from the notional jury, because this is a judge alone, and making it inthe middle of the trial, it colours me to fairly consider any further evidence of credibility by Mr. MacDonald. III. Position of the Parties [15] The Crown submits that the trial judge erred, or alternatively, acted in excess of his jurisdiction when he granted the mistrialin this case. The Crown therefore seeks an order in the nature of certiorari with mandamus in aid to quash the trial judge’s declaration ofa mistrial.

In addition, the Crown submits the facts of this case require me to remit the matter back to the trial judge for completion ofthe trial. [16] The position of the accused is that the decision of the trial judge is not reviewable by way of certiorari or mandamus. Further,the accused submits that the trial judge made no error of jurisdiction in granting the mistrial. IV. Issues [17] The issues on this application are as follows: 1. Did the trial judge act in excess of his jurisdiction in declaring a mistrial or err in declaring a mistrial; 2.

If yes, should the trial judge be required to complete the trial, thus rendering a verdict? V. Analysis A. Jurisdiction of this Court and Standard of Review [18] The jurisdiction of a superior court to review the declaration of a mistrial is well established: see R v Toutissani, [2007] OJ No1671 (Ont Sup Ct), aff’d 2007 ONCA 773, and R v Bertucci, (SK CA), [1984] 2 WWR 459, 31 Sask R 1 (CA). Thescope of review on certiorari is, however, very limited. [19] As stated by the Supreme Court of Canada in R v Russell, 2001 SCC 53 at para 19: ....

Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because thattribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rathercertiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has actedin breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100(citing Forsythe v.

The Queen, (SCC), [1980] 2 S.C.R. 268). [20] While certiorari may also be available in some instances where a trial judge commits an error of law in making an order, theorder must be such that “it immediately and finally disposes of a legal right”: R v Black, 2011 ABCA 349 at para 25. [21] I am unable to find that a declaration of a mistrial “immediately and finally disposes of a legal right”. A declaration of mistrialdoes not put an end to the proceeding. Rather, it requires the setting of a new trial date before another judge.

Therefore, where a mistrialhas been declared, there must be an error of jurisdiction before certiorari can be granted. If the error is not jurisdictional, certiorari doesnot lie. [22] The writ of mandamus, like certiorari, is also an extraordinary remedy that is discretionary.

Mandamus will not ordinarily lieif a right of appeal exists; an order declaring a mistrial is not a judgment or verdict of acquittal, therefore the Crown does not have a rightof appeal: R v Holliday, 1973 ALTASCAD 43 , [1973] 5 WWR 363, 12 CCC (2d) 56 (Alta SC (Appellate Division)). [23] R v Palacios (1984), (ON CA), 10 CCC (3d) 431, 1 OAC 356, adopted the following explanation of thedifference between certiorari and mandamus from an unreported decision of the British Columbia Court of Appeal at para 38:

Certiorari is needed to quash the decision if it involves a jurisdictional issue, and mandamus is needed to compel the judge to performhis judicial duty. That view of the matter is, I think, consonant with the view expressed by Pigeon, J., in Rourke and by Judson, J., inKipp that mandamus lies to revise a decision on a preliminary question which does not go to the merits, and to compel the judge to hearthe case on its merits, when there is no legal justification for refusing to do so. B. Authenticity, Mistrial and Reasonable Apprehension of Bias 1.

Was it was proper for the trial judge to make a determination of authenticity and credibility on thevoir dire? [24] The Crown submits it was proper for the trial judge to enter into a voir dire to determine the authenticity of the Facebookmessages because the Crown was tendering the messages as admissions made by the accused and the accused was asserting that he wasnot the author. [25] In R v Evans, (SCC), [1993] 3 SCR 653 at 668-669, 108 DLR (4th) 32, the court held that for a statement tobe admitted, a trial judge must be satisfied that there is some evidence that the declarant was the accused: In my opinion, this is the correct approach to be applied in respect of the authenticity of admissions.

If there is some evidence to permitthe issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be madeas to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that thestatement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along withother evidence to determine the issue of innocence or guilt.

While the contents of the statement may only be considered for the limitedpurpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertionscontained therein. [26] The accused testified on the voir dire that he was not the author of the Facebook messages. Obviously, the trial judge had tomake a determination of credibility on the voir dire in order to make “a preliminary determination” that the Crown had established on abalance of probabilities that the statement was that of the accused.

This is what the trial judge did when he said that the accused didengage in the Facebook conversation. 2. Was there a good and sufficient reason to declare a mistrial? [27] Both parties acknowledge that a trial judge has jurisdiction to declare a mistrial in compelling circumstances wheninadmissible evidence overtly prejudicial to the accused is disclosed. [28] In the case at bar the trial judge was not confronted with a situation where inadmissible evidence came out during the voirdire.

However, this is not the only situation in which a judge sitting alone has the jurisdiction to declare a mistrial. [29] The power to declare a mistrial is an inherent, discretionary remedy of a trial judge: R v Dueck, 2011 SKCA 45 at para 30. [30] A trial judge should only declare a mistrial in the “clearest of cases”. The remedy of a mistrial “[...] contemplates [...] ‘a fatalwounding of the trial process’, a wounding to the administration of justice which cannot be cured by other remedial measures”: R vLawson (1991), (BC CA), 1 BCAC 2004, 1 WAC 204 at 209.

See also R v Paterson (1998), (BCCA), 102 BCAC 200 at para 93, 166 WAC 200, R v Arabia, 2008 ONCA 565 at para 52, Dueck at para 30, R v Pires, 2004 BCCA 33 atpara 55, and R v Karim, 2010 ABCA 401 at para 29. [31] In R v Burke, 2002 SCC 55 at para 74, the court stated that, “[t]he test for declaring a mistrial is a [TRANSLATION] ‘realdanger’ of prejudice to the accused or danger of a miscarriage of justice: Lessard, supra, at p. 562 CCC.” [32] The discretion of a trial judge to declare a mistrial has been considered in a number of cases.

For example, in R v Kellington(1987), (AB KB), 80 AR 246, 2 WCB (2d) 32 (QB), an application to quash the declaration of a mistrial was grantedas there was no foundation for a mistrial. The court held at para 15: Certiorari will lie to quash a decision of an inferior tribunal made in excess of or without jurisdiction (R. v. Conley (1979) 1979ALTASCAD 129 , 17 A.R. 447 at 457 (C.A.)). While a trial judge admittedly has the jurisdiction to declare a mistrial, hispower to do so exists only where good and sufficient reason has been established.

In the present case, there was no evidence to supportthe conclusion of the learned Provincial Court Judge that there had been Court induced confusion of the Crown witnesses. As a result,there was no basis upon which the jurisdiction to declare a mistrial could be founded […] [emphasis added] [33] Another similar situation is found in Guelph (City) v Louws, 2013 ONSC 7903.

There, the Justice of the Peace concluded that,“due to the manner in which both the prosecution and the defence [had] conducted themselves in [that] trial”, and her troubles with thatconduct, there was a reasonable apprehension of bias towards both parties. For that reason, she declared a mistrial. The Crown sought anorder of mandamus with certiorari in aid to quash the mistrial.

The application judge held that the Justice of the Peace committed ajurisdictional error in declaring a mistrial in the circumstances of the case finding that the Justice of the Peace’s disapproval of theconduct of the parties was not grounds for declaring a mistrial, as there was no “fatal wounding of the trial process” to justify a mistrial:para 10. [34] In contrast, in Bertucci, at 89, the Court held that the trial judge did not err in jurisdiction in declaring a mistrial because, inthe circumstances of that case, a reasonable apprehension of bias did exist.

The Court held that there was “ample evidence to support thetrial judge’s conclusion that he had good and sufficient reason to disqualify himself and declare a mistrial.”

[35] Therefore, if a trial judge errs in declaring a mistrial, for example, such as finding there is a reasonable apprehension of biaswhen one does not exist, the result is a jurisdictional error as there is “no basis upon which the jurisdiction to declare a mistrial could befounded.” 3. Did the preliminary credibility finding raise a reasonable apprehension of bias? [36] The issue that must be decided in this case is whether there was good and sufficient reason for the trial judge to declare amistrial.

This leads to an examination of the role of a trial judge in making rulings in the context of a voir dire, and whether there was areasonable apprehension of bias such that the mistrial should have been granted. [37] A trial judge is routinely required to rule on the credibility of witnesses in a voir dire to determine the admissibility ofevidence: see R v Cochrane, 2014 ABQB 180 at paras 14 and 30.

The assessment of credibility includes that of the accused, if anaccused chooses to testify in a voir dire. [38] For example, in R v Adams, 2006 BCSC 1540, an application was brought for Romilly J to recuse himself on the ground thathe had already made findings of credibility on a voir dire with respect to one of the witnesses. Justice Romilly rejected the applicationand stated at para 15: In R. v. Novak (1995), (BC CA), 59 B.C.A.C. 152 (C.A.), the trial judge had found the accused guilty of two countsof assault arising out of two separate incidents which were tried separately, one after the other.

In the first trial, the judge had madeadverse credibility findings against the accused. The Court of Appeal was of the view that this did not necessarily result in a reasonableapprehension of bias. Prowse J.A. stated at para. 7: The fact that a trial judge has ruled adversely in a previous case on the credibility of either a defence witness or the accused does notnecessarily result in a reasonable apprehension of bias.

Something more is required showing a predisposition by the adjudicator withrespect to the accused’s credibility, such as to amount to pre-judgment of the result of the second hearing. [Citations omitted.] In thiscase, that "something more" is lacking. [39] In addition, trial judges are routinely required to make rulings on the admissibility of evidence.

If the evidence is notadmissible, the trial judge disabuses his or her mind of the evidence. [40] In Lesiczka v Sahota, 2007 BCSC 479, leave to appeal to CA refused, 2007 BCCA 334, the court stated at paras 33-35: [...] the mere fact that comments may be made by a judge that appear unfavourable to a party does not indicate a reasonableapprehension of bias. Further, the fact that a judge may make specific comments on the facts of a case, which may amount to anassessment of the facts as they stand at that point in time, does not indicate that the judge had a closed mind.

Prior unfavourable rulingsare also not, in and of themselves, indicative of bias against the unsuccessful party: see Dempsey at para 13.

The Significance of Non-Final Findings Made in a Previous Hearing It often happens that a judge must make a ruling, for example on a voir dire, and then go on to disregard the evidence presented or thefindings made.[...] The relationship between the reasonable apprehension of bias where a judge must disregard evidence raised in pre-trial or mid-trial hearings versus when the judge makes a final, reasoned determination on thesubject matter was discussed in the criminal law context by the Court of Appeal in R. v. Kelly (2005), 214 B.C.A.C. 162, 2005 BCCA373, a case not cited by counsel.

Low J.A. stated at para 17: The Crown points out that trial judges often are called upon to disregard things they hear during pre-trial or mid-trial enquiries into theadmissibility of evidence (confessions for example) without it ever being said that they become biased or that there is a basis for areasonable apprehension of bias.[...] [41] In the same vein, the British Columbia Court of Appeal in Taylor Ventures Ltd (Trustee of) v Taylor, 2005 BCCA 350 atparas 8 and 9, held that: Applying those principles to the present case I cannot accept the appellant's contention that there exists a reasonable apprehension ofbias.

On the question of transposing evidence from other proceedings into this trial the judge said: [11] The question has been raised whether I will take into account evidence heard in other proceedings in coming to a determination ofthe outcome of this Trial. Judges clearly only listen and are guided only by the evidence heard at trial and there is no difficulty forjudges to disabuse their minds of evidence heard in other matters even if the context of those other matters involves some or all of thesame parties and issues.

As well, judges are often having to disabuse their minds in the context of voir dires, press coverage, legislativedebate and the supposed views of the community expressed in social discussion. Judges must and will ignore what is not in evidence. Imust also say that our memory of previous cases often has a fairly short “shelf life”. Any reasonable, well informed person would accept the judge's assurance that he would decide the case only on the evidence admitted atthe trial.

This duty is so basic to the judicial function that the appellant's concern amounts to nothing more than groundless suspicion. [42] The test for bias was set out by de Grandpré J in his dissent in Committee for Justice and Liberty v Canada (National EnergyBoard), (SCC), [1978] 1 SCR 369 at 394-95, 68 DLR (3d) 716, and was approved in R v S(RD), (SCC),[1997] 3 SCR 484 at para 31: ... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question

and obtaining thereon the required information. ... [T]hat test is “what would an informed person, viewing the matter realistically andpractically — and having thought the matter through — conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” The grounds for this apprehension must, however, be substantial and I ... [refuse] to accept the suggestion that the test be related to the“very sensitive or scrupulous conscience”. [43] In Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 176 at para 29, the court said as follows with respect to anapprehension of bias: To have any legal effect, an apprehension of bias must be reasonable, and the grounds must be serious, and substantial.

Real likelihood orprobability is necessary, not a mere suspicion: R. v. R.D.S. (SCC), [1997] 3 S.C.R. 484, 532 (para. 112). The thresholdis high: id. at 532 (para. 113). The test of appearance to a reasonable neutral observer does not include the very sensitive or scrupulousconscience: see Wewaykum I.B. v. R., supra (para. 76); cf. Makowsky v. Doe, supra (para. 22). This challenge is "favor", not interest,says the British Columbia Court of Appeal in G.W.L. Prop. v. W.R.

Grace, supra. [44] It is the burden of the party alleging the bias to prove it on a balance of probabilities. [45] In R v Fisher, [2004] OJ No 4590 (Ont Sup Ct), the issue before the court was whether preliminary credibility findings raiseda reasonable apprehension of bias.

The accused submitted that the trial judge made preliminary credibility findings in the accused’sdelay-to-trial motion when he stated, “the accused’s affidavit proffered, does not always jibe with the attached transcripts.” Counsel forthe accused argued that this amounted to the Court finding that the accused was a liar, and brought an application for an order ofprohibition which sought to prohibit the trial judge from completing the trial on the basis that “in having pre-determined the credibilityissue in the pre-trial application, a reasonable apprehension of bias necessarily existed should the judge continue to preside over thetrial”: para 16.

The trial judge held on the application that, even if he had made a determination of credibility, “it would not preclude[him] from being totally open-minded as to Mr.

Fisher’s credibility and reliability should he testify in his own defence on his trial”:quoted at para 17 of the reviewing decision. [46] In reviewing the trial judge’s decision, Hill J held, at para 18, that: In any event, where a trial judge makes preliminary credibility findings in pre-trial motions, such as a confessional voir dire or a s 8Charter motion, the judge is not disqualified from presiding over trial of the merits of the criminal prosecution.

Justice Hill was not persuaded the Applicant had discharged his onus of demonstrating that any conduct on the part of the trial judge metthe reasonable apprehension of bias test. [47] In R v H (G), (ON CA), [2002] OJ No 3635 (Ont CA), cited by the Alberta Court of Queen’s Bench in Rv Klostergaard, 2005 ABQB 386, counsel for the accused argued that an apprehension of bias arose from the trial judge's ruling on voirdire that the accused was an “incredible” witness.

The Court of Appeal for Ontario held at para 6: Trial judges are constantly called upon to assess credibility in making rulings on pre-trial motions and voir dires during the trial. It is anecessary and accepted part of the judicial role and of the administration of justice that those conclusions will not impermissibly flowthrough to the trial proper. A trial judge's assessment of the credibility of an accused during the trial will depend on what the accusedsays during his or her testimony, that is if the accused chooses to testify. [48] The trial judge’s findings in the voir dire that Mr.

MacDonald was untruthful and that he was the person engaged in theFacebook conversation do not, standing alone, establish a reasonable apprehension of bias. As courts have said, trial judges are oftencalled upon to make findings of credibility at voir dires and, as part of their role in the administration of justice, they are not to let thoseconclusions on credibility affect the trial proper. [49] With that said, I cannot make a finding as to whether a reasonable apprehension of bias existed without considering thestatements of the trial judge in their entire context when he raised the issue of a mistrial.

Of particular importance are his comments thathe made a mistake in making the determination of who was the other party to the Facebook exchange, that such a determination was a“significant finding against the credibility of Mr. MacDonald”, and that “it colours [him] to fairly consider any further evidence ofcredibility by Mr. MacDonald.” He also stated, “I have painted myself into a corner should any further evidence be provided by Mr.MacDonald.

I’ve found him to be not believable.” [50] The statements made by the trial judge, in expressing the state of his belief regarding whether he could conscientiouslycomplete the trial in fairness, were noted as being of particular importance in Toutissani. In that case, the court reporter testified as awitness after the accused challenged the production of transcripts.

The trial judge then raised the issue of a mistrial on his own motion.Over the objections of both the Crown and the accused, the trial judge declared a mistrial based on his concern that he might beperceived as being biased against the accused as he had previously written letters of reference for the court reporter. The Crown thensought an order in the nature of certiorari and mandamus quashing the declaration of mistrial made by the trial judge.

Nordheimer Jgranted the order and held at para 22, that: [T]he trial judge did not at any point state that the circumstances surrounding the transcripts issue had, in any fashion, coloured the trialjudge’s attitude towards Mr. Toutissani or otherwise prejudiced his position before the court. The trial judge did not say that he was notable to fairly and impartially adjudicate on the charges before him. Rather, the declaration of a mistrial was based entirely on the trialjudge’s concern that there might be an apprehension of bias by Mr. Toutissani even though Mr.

Toutissani had not made any suchsuggestion. [emphasis added] As such, the Court held that there was no basis for the trial judge’s conclusion that he could not continue to preside at the trial due to a

reasonable apprehension of bias. [51] On appeal, the Ontario Court of Appeal endorsed the reasoning of Nordheimer J above and stated at paras 8-10: In my view, the application judge’s analysis on this point is entirely consistent with the leading cases dealing with judicial bias, includingR. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2S.C.R. 259, and Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39 , [2005] 2 S.C.R. 91.

Third, I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial, like the declaration of a stay, should begranted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harmoccasioned.” There is good reason for such a strong statement, as highlighted by this case. A seemingly simple criminal trial consumed 45 days ofcourt time spread over an incredible 81 months. Near the end of the trial, the trial judge declared a mistrial, and he did so over theobjections of both the Crown and the accused.

The “actual harm” caused by this ruling was a manifest failure of justice for theprosecution and accused alike, a substantial allocation of court resources and staff to no effect, and dislocation and stress experienced bymany witnesses, again to no effect. It is crucial that trial judges try to avoid these consequences. The application judge’s reasoning andorder are faithful to this goal.

See also Burke at paras 75-77. [52] Other than the trial judge stating that he was “coloured” in any further consideration of the credibility of the accused, I do notfind any evidence to support the conclusion that a reasonable apprehension of bias existed, and the trial judge had good and sufficientreason to declare a mistrial. [53] I find that the trial judge’s statement about being “coloured” was based on what he believed to be an error in disbelieving Mr.MacDonald’s evidence in the voir dire and making a threshold determination that Mr. MacDonald was the author of the Facebookconversations.

This was not an error, and a credibility finding on the voir dire did not create a reasonable apprehension of bias.Something more was needed as the “threshold is high.” Further, there is nothing on the record to suggest the trial judge will not be ableto disabuse his mind of the credibility findings made in the voir dire, and therefore, will decide the case only on the evidence admitted atthe trial. VI. Conclusion [54] In my view, the test for reasonable apprehension of bias was not met. In the result, the trial judge did not have good andsufficient reason to declare a mistrial.

As such, the trial judge acted in excess of his jurisdiction. [55] The Crown application for certiorari with mandamus in aid is granted in that the order of the trial judge declaring a mistrial isquashed by way of certioriari, and an order of mandamus shall issue requiring the trial judge to continue the trial. Heard on the 11th day of December, 2015; 20th day of January and 25th day of January; 24th day of February and 11th day of March 2016. Dated at the City of Calgary, Alberta this 16th day of March, 2016. E.A. Hughes J.C.Q.B.A.

Appearances: James D. Sawa for the Crown Dennis S. Kolba for the Accused