R v Wilson, 2016 ABQB 568

Court of Queen’s Bench of Alberta Citation: R v Wilson, 2016 ABQB 568 Date: 20161012 Docket: 140402736Q2 Registry: Calgary Between: Her Majesty the Queen Crown - and - Hasson Barrington Wilson, Ivan Ivolet Willis, Troy Anthony Wareham, Abraham Cristo Latife and Jamar Newton Sterling Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E.

Mahoney _______________________________________________________ [ 1 ] This is an application by the Crown asking that I, as case management judge and assigned trial judge, recuse myself from hearing the Askov/Jordan application brought by the defence, set for October 17, 2016, where the defence counsel ask for a judicial stay of proceedings for all accused due to an unjustifiable breach of their right to be tried within a reasonable time. [ 2 ] There are four accused on a 16-count indictment for charges including robbery, kidnapping, conspiracy to commit robbery, weapons and ammunition possession, unauthorized possession of a weapon in a motor vehicle and weapons trafficking. [ 3 ] The trial of this matter was scheduled to commence on October 3, 2016, for five-weeks.

On September 19, 2016, 11 days before the start of the trial, I granted an application brought by all accused to adjourn the trial. The September 19, 2016 date had originally been scheduled for the court to hear the Askov/Jordan defence application for unreasonable delay, contrary to

Section 7 of the Charter . That morning, the defence served the Crown with an application to adjourn the trial due to incomplete and late disclosure. The result, after hearing submissions, is that I adjourned the trial to January 8, 2018, the nearest available date for a five-week trial.

[4] I granted the adjournment because I was satisfied on the evidence before me that the Crown had not provided the defencewith complete and timely disclosure. I found that the nature of the incomplete and late disclosure, 11 days before the trial, threatened allof the accuseds’ Charter rights to make full answer and defence which, in turn, would deny their right to a fair trial. [5] The Crown in this application makes the submission that my granting the adjournment was an error due to following anincorrect procedure at the hearing.

The incorrect procedure, argues the Crown, was that I proceeded with the adjournment applicationwhen the Crown had not received sufficient notice. The Crown submitted that if it had more notice, it could have prepared submissions,presented evidence and argued against the adjournment on a date some time before the start of the trial on October 3, 2016. [6] The Crown is not arguing against the decision to adjourn the trial; that decision has been made.

However, the Crown arguesthat the additional delay resulting from the adjournment of the trial to January 2018 is a discrete, exceptional circumstance that wasoutside the Crown’s control and that the 15-month period should be deducted from the total period of delay.

This submission has notbeen argued and no doubt will be argued at the October 17, 2016 hearing of the Askov/Jordan application. [7] The Crown’s concern, presented with utmost professionalism, is that my presiding at the October 17, 2016 Askov/Jordanapplication for unreasonable delay introduces a reasonable apprehension of bias since I will “inevitably” be asked to rule on thecorrectness of the September 19, 2016 trial adjournment ruling.

The Crown submits that it is wrong to “be a judge in one’s own cause,”in this case, the correctness of my trial adjournment ruling. [8] The Crown submits that the test for recusal of a judge is whether there is a reasonable apprehension of bias.

This test wasexpressed by de Grandpre J. in Committee for Justice and Liberty v National Energy Board, (SCC), [1978] 1 SCR 369,(“Committee for Justice”) which was adopted in Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 SCR 259 at para 60, citingCommittee for Justice at 394: . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information.

In the words of the Court of Appeal, that test is “what would an informed person,viewing the matter realistically and practically - and having thought the matter through - conclude.

Would he think that it is more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [9] The Crown submits that in this particular case, a reasonable and right-minded person would think that it is more likely thannot that a decision-maker could not fairly decide the correctness of his own decision made in the same matter, only a short time before. [10] Defence counsel, in opposing the recusal application, argue that it is a collateral attack on an interlocutory order.

The accusedsubmit that, in reality, the adjournment was a Crown adjournment because of the incomplete and late disclosure of material evidence.They submit that the Crown was not ready for trial, in that it had not met its constitutional obligation to provide full and timelydisclosure. [11] Further, defence counsel state that under the case management provisions of s. 551.3(4) of the Criminal Code, my decision toadjourn the trial is binding on the parties unless the court is otherwise satisfied it is not in the interests of justice.

The defence alsosubmits there is no appeal available for an interlocutory ruling. [12] Regarding recusal, in Point on the Bow Development Ltd v William Kelly & Sons Plumbing Contractors Ltd, 2005 ABQB 368,aff’d 2005 ABCA 310, 371 AR 395, Lutz J. recused himself from rehearing an application for contempt brought within a civil casemanagement hearing. He stated at para 5: The criterion for recusal is the reasonable apprehension of bias.

The test for reasonable apprehension of bias is whether an informedperson, viewing the matter realistically and practically, and having thought the matter through, would think it is more likely than not thatthe decision-maker, whether consciously or unconsciously, would not decide fairly. ... [13] Put another way, the test is whether a reasonable person properly informed would apprehend that there was a conscious orunconscious bias on the part of the judge. In this case, the test has two parts.

First, what is the perspective of a reasonable person, whichmay differ from the Crown’s perspective, as to whether the judge has a bias? Second, the alleged bias must be reasonable given thecontext of the adjournment application vis-à-vis the upcoming Askov/Jordan application. [14] A positive finding of reasonable apprehension of bias does not necessarily mean the judge made a decision based on improperconsiderations.

It only means, in the case at bar, that it is reasonable for the Crown to have an apprehension of bias in the upcomingJordan/Askov application. [15] In reviewing the Crown’s recusal application, I am guided by the principle that our legal system is predicated on a judge’sopen-minded, neutral consideration of each case, without predisposition to decide an issue or cause in a certain way. The case authoritiesall say that there is a strong presumption of judicial impartiality.

The focus of the reasonable apprehension of bias test is not bias in fact,but rather bias as perceived or apprehended by a reasonable person, properly informed. It is highly fact-specific and a real likelihood orprobability of bias must be demonstrated on the evidence. In other words, there must be a real likelihood that the judge will showpartiality to one side of the cause.

The grounds for this apprehension must be substantial. [16] It must be substantial because making a decision founded on the evidence and the law that is adverse to one side is not bias.The court is not required to yield to an objection that is voiced because a party disagrees with the judge’s case management decision. Thecourt must be careful to ensure that important rights are not sacrificed in order to satisfy the displeasure of a party who is critical of acourt ruling. Judges ought not to recuse themselves too easily.

We have a responsibility to remain seized and make rulings in the matterbefore us unless a legitimate basis for recusal exists. [17] Staying with this theme a little further, it would be easier to conclude that whenever an allegation of apprehension of bias ismade against a judge, that judge should simply step aside. As this court said in Broda v Broda, 2000 ABQB 948, 285 AR 201 at para 26,aff’d 2001 ABCA 151, 286 AR 120:

The Court of Queen's Bench of Alberta has many judges at its disposal, and it would appear to be easy to replace any one judge with another. When a motion for recusal is made, the question then might arise: Why does a judge even have to think about it, why not just disqualify [him or herself]? [ 18 ] It is not quite as simple as that.

As this court also stated in Broda at para 28: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide in their favour. [citing L (JR) Re (1986), 161 CLR 342 (Australia HC) ] [ 19 ] In addressing the Crown’s recusal application, I take into account what took place at the September 19, 2016 hearing.

There is no debate that the Crown was not given notice of the application to adjourn on the basis of incomplete and late disclosure until court opened that morning. [ 20 ] Counsel for the defence submitted that because the application was based on serious non-disclosure, late disclosure and the Crown’s failure to comply in a timely way with the court’s case management disclosure order of April 11, 2016, the trial ought to be adjourned. [ 21 ] Mr. Jugnauth, counsel for the accused Mr.

Willis, made submissions on the application to adjourn, and directed the court to the defence application materials, which contained a list of over two pages of items of disclosure not received by the defence, or received late.

I was satisfied that a serious disclosure issue was raised 11 days before the start of a five-week trial. [ 22 ] The defence suggested that the trial ought to be adjourned and, if adjourned, the Askov/Jordan application would also have to be adjourned to a new date (October 17, 2016) so that new briefs could be filed by counsel for all parties to address the disclosure and delay issues. [ 23 ] The Crown did not directly waive notice. I suggested to the Crown counsel that he likely needed time to consider the application.

Crown counsel acknowledged that we were “really close” to the trial start date and suggest that maybe the application could be dealt with on the opening day of the trial. [ 24 ] When asked by the court how much time he would need to prepare his materials to address the adjournment application, Crown counsel suggested a week. [ 25 ] Ms. Blumer, counsel for the accused Mr. Latife, stated that if the Crown could narrow down its written reply materials in advance, perhaps a half-day hearing in the week before the trial could work. [ 26 ] Mr. Jugnauth, counsel for the accused Mr.

Willis, submitted that given the long list of outstanding disclosure and the second list of late disclosure, the defence, whose clients are facing serious charges, was faced with not only serious disclosure issues but finding time within the next week to address the adjournment application. I determined adjourning the trial was the only fair option given these late development disclosure issues. [ 27 ] In making this ruling on the Crown’s request that I recuse myself, I also have to take into account the accumulated knowledge of this case I have gained as case management judge.

One reason for early involvement of a case management judge is to make rulings that will ensure timely management of the process to ensure a fair and efficient criminal trial. [ 28 ] In the case at bar, given the purpose of the case management rules, the public interests they address and the discretionary powers given to the case management judge, the Crown must establish an apprehension of bias that is reasonable in the circumstances.

The Crown must establish that my position is such that I can no longer be neutral in hearing the Askov/Jordan application. [ 29 ] The Crown’s apprehension is that I will take into account, in the Askov/Jordan application, a view of the facts and legal issues which I formed in the adjournment application. [ 30 ] Making interim rulings to bring the matter to trial is what the case management rules mandate. I made no comments in the September 19 ruling about the Askov/Jordan application. I made no comments as to whether the delay occasioned by the adjournment is attributed to the Crown.

Those issues are undecided, and are scheduled to be argued on October 17, 2016. In this recusal application, the Crown is essentially making a pre-emptive attack on a potentially adverse ruling. [ 31 ] The mere fact that a party has received a negative ruling before a case management judge does not entitle that party to obtain a recusal of that judge on the apprehension that the case management judge is now biased. Any other proposition would render criminal case management impossible to operate.

This was explained by the Alberta Court of Appeal in Lakhoo v Lakhoo , 2016 ABCA 200 at para 14 : ...Discretionary rulings, even incorrect ones, do not necessarily evidence reasonable apprehension of bias. Indeed, case management would cease to have any benefit if a party who was unsuccessful at one point could therefore spin a wheel for a new judge. That would scarcely make sense let alone work. ... [ 32 ] In the Crown’s recusal brief and submissions, I was not referred to any evidence that I pre-judged or took sides regarding the Askov/Jordan application.

All arguments as to the new framework set up in R v Jordan , 2016 SCC 27 are open to the Crown to make when the Askov/Jordan application is argued. [ 33 ] For these reasons, the application for recusal on the basis of reasonable apprehension of bias is dismissed.

Heard on the 3 rd day of October, 2016. Dated at the City of Calgary, Alberta this 12 th day of October, 2016. Bryan E. Mahoney J.C.Q.B.A. Appearances: Brian Holtby, Q.C., Alberta Justice for the Crown Shamsher Kothari, Foster Iovinelli Beyak for the Accused, Hasson Barrington Wilson Derek Jugnauth, Wolch deWit Watts & Wilson for the Accused, Ivan Ivolet Willis Joan Blumer, Blumer Ouellette Sirois LLP for the Accused, Abraham Cristo Latife Matthew Deshaye, Dunn & Associates for the Accused, Jamar Newton Sterling