R. v. N.J.S., 2013 BCSC 2109

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. N.J.S., 2013 BCSC 2109 Date: 20131029 Docket: 146983-2 Registry: Victoria Regina v. N.J.S. Notice: This judgment has been edited for publication purposes on May 23rd, 2014. Restriction on Publication: Pursuant to 486.4(1) &.486.5(1) C.C.C. Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgmentre: Application for Recusal Counsel for the Crown: P. DonnachieCounsel for the Accused: B. JohnsonPlace and Date of Trial/Hearing: Victoria, B.C. October 25, 2013Place and Date of Judgment: Victoria, B.C.

October 29, 2013 [1] THE COURT: These oral reasons are subject to editorial revisions before their reproduction in final form. [2] The accused is charged with one count of communicating with anyone for the purpose of obtaining for consideration the sexualservices of a person under the age of eighteen years, contrary to s. 212(4) of the Criminal Code. [3] On 4 February 2013 the accused's jury trial began. Unfortunately, prior to the end of the trial, counsel for the accused (notMr. Johnson) fell grievously ill. This sad turn of events precipitated the declaration of a mistrial.

We are now at the preparatory stagesfor the retrial that is set to commence early next year. [4] Presently before me is an application by the accused that I recuse myself from this matter on account of an apprehension ofbias. The accused asserts that the following “factors" support his argument that a reasonable apprehension of bias exists:

a) All of the pre-trial applications in the first trial were decided in favour of the Crown;

b) On one occasion during my introductory instructions to the jury in the first trial, I referred to the accused as "Mr. Guilt";

c) After declaring the mistrial in the first trial, I chose to remain as the trial judge for the retrial;

d) After declaring the mistrial in the first trial, I chose not to provide reasons for denying the accused's application under sections 11(

b) and 24(2) of the Charter for a judicial stay of proceedings; and

e) Remarks I allegedly made at a pre-trial conference that suggest any rehearing of the pre-trial applications from the first trial might result in the same decisions. [5] The test to determine whether a reasonable apprehension of bias exists was articulated in R. v. S. (R.D), (SCC), [1997] 3 SCR 484. At paragraphs 111 to 114 of that decision, Justice Cory explains: [111] The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasonsin Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394: [T]he 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. . . . [The] test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through-- conclude. . . .” This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram , supra , at pp. 54-55; Gushman , supra , at para. 31.

Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick , [1983] O.J. No. 515 (H.C.), at para. 14 . See also Stark , supra , at para. 74; R. v. Lin , [1995] B.C.J. No. 982 (S.C.), at para. 34 .

To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. [112] The appellant submitted that the test requires a demonstration of “real likelihood” of bias, in the sense that bias is probable, rather than a “mere suspicion”.

This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty , supra , at pp. 394-95: I can see no real difference between the expressions found in the decided cases, be they ‘reasonable apprehension of bias’, ‘reasonable suspicion of bias’, or ‘real likelihood of bias’.

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”. [Emphasis added.] Nonetheless the English and Canadian case law does properly support the appellant’s contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce , [1954] 2 All E.R. 850 (Q.B.D.) ; Metropolitan Properties Co. v. Lannon , [1969] 1 Q.B. 577 (C.A.) ; R . v.

Gough , [1993] 2 W.L.R. 883 (H.L.) ; Bertram , supra , at p. 53; Stark , supra , at para. 74; Gushman , supra , at para. 30. [113] Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. 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.

See Stark , supra , at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. [114] The onus of demonstrating bias lies with the person who is alleging its existence: Bertram , supra , at p. 28; Lin , supra , at para. 30.

Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case. [ 6 ] Using these observations of Justice Cory as my analytical framework, I will address each of the factors the accused alleges supports his request that I recuse myself from this case because there is a reasonable apprehension of bias. [ 7 ] To begin with, the accused is incorrect when he asserts that all of the pre-trial motions in the first trial were decided against him and in favour of the Crown.

More specifically, his contention that his application to have his challenge to the constitutional validity of s. 212(4) of the Code heard in advance of the trial was denied is simply wrong. In actual fact that application was withdrawn by his counsel, who agreed that the constitutional challenge should be heard at the conclusion of the trial. [ 8 ] Trial judges decide issues based upon the strength and merit of the evidence and arguments presented. It is not a numbers game where the court keeps track of the number of arguments or applications each side has successfully made; nor should it be.

In my respectful opinion, a reasonable person, knowing all of the circumstances of this case, would not find the fact that the accused was unsuccessful on any of the pre-trial motions that were decided in the first trial, as an indication of any partiality on my part as the trial judge or supportive of any inference that there is a reasonable apprehension of bias against him. [ 9 ] The transcript of my introductory instructions to the jury at the first trial discloses that on one occasion I referred to the accused as "Mr. Guilt".

The reference is found in the following passage from the transcript: If based upon the evidence you are sure that Mr. Guilt -- N.J.S. is guilty of the offence of which he is charged, you must convict him of that offence, since that demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

If you have a reasonable doubt whether N.J.S. is guilty of the offence for which he is charged, you must give him the benefit of that doubt and find him not guilty. [ 10 ] The audio recording of the relevant portion of these instruction was played in court during the hearing of this application, and to my untrained ear, it appeared that I referred to the accused as "Mr. Gill" and not "Mr. Guilt". That is, the "t" was inaudible to me. Counsel for the accused indicated that he heard the "t" and for the purposes of this application I will accept that I used the term "Mr. Guilt".

Given this reference to the accused, counsel for the accused argues that a reasonable and right-minded person could infer that I had a predetermined view of the evidence and an unconscious bias against the accused. [ 11 ] In R. v. Wilson, [2013] ONCA 222, the Ontario Court of Appeal considered the situation where a trial judge referred to an accused as "Mr. Guilty" in her final instructions to the jury. Those comments are reproduced at paragraph 5 of the Court of Appeal’s reasons: [5] In the course of explaining reasonable doubt to the jury, the trial judge said: The presumption of innocence means that Mr.

Wilson started the trial with a clean slate. The presumption stays with him throughout the case, including your deliberations at the end of the trial. It is only defeated if and when Crown counsel satisfied you, beyond a reasonable doubt, that Mr. Guilty, I'm sorry, Mr. Wilson is guilty of the crime charged. Mr. Wilson does not have to present evidence or prove anything in this case. In particular, that he is innocent of the crime charged. From start to finish, it is Crown counsel who must prove the person charged guilty beyond a reasonable doubt. It is Crown counsel who must prove Mr.

Wilson's guilt beyond a reasonable

doubt and not Mr. Wilson who must prove his innocence. You must find Mr. Wilson not guilty of an offence unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty of it. [Emphasis added] [ 12 ] Much like the situation in the present case, nothing was said to the trial judge in Wilson when she made that slip of the tongue, and no complaint was raised until the matter was appealed.

In denying the appeal, the Ontario Court of Appeal concluded, at paragraphs 7 and 8: [7] On appeal, counsel submits that there was a “powerful risk” that the jury would take the comment as an indication of the trial judge’s personal view of the merits of the case. [8] We see no merit to this submission. The jury, as reasonable intelligent people, would take the comment for what it clearly was – an inadvertent misstatement quickly corrected, probably before it was even noticed.

To suggest that the jury would take some expression of the trial judge’s personal opinion of the merits of the case from an obvious slip of the tongue is not only to speculate, but also to assume a degree of irresponsibility and irrationality incompatible with the important function of the jury in the criminal justice process. [ 13 ] Counsel for the accused submits that the Wilson decision is wrong in law and that I should not follow it.

He criticizes the Ontario Court of Appeal for failing to consider or address the risk that the trial judge's misstatement may have “stacked the deck” against the accused and provided the jurors with an avenue or excuse for abdicating their responsibility to decide the case impartially and only on their own assessment of the evidence presented at trial. I am not persuaded by these submissions.

In my view the Ontario Court of Appeal's observations and conclusions in Wilson are directly on point and more than adequately address the complaint being raised by the accused. [ 14 ] With respect to the accused's third complaint, it must be remembered that his trial will be before a court composed of a judge sitting with a jury. The triers of fact will be twelve individuals from the community who are chosen to sit as jurors at the accused's trial. It will not be me, as the trial judge, who decides whether the Crown has successfully proven the accused's guilt beyond a reasonable doubt.

In my opinion, it is not at all unusual that a trial judge who has presided over a jury trial that, because the accused's counsel has fallen ill and cannot continue, has ended suddenly in a mistrial, would decide that he or she will remain as the judge for the retrial. With the declaration of a mistrial, the first trial came to an end and it made practical sense, in my respectful view, that I retain my role as the trial judge for the retrial.

Nothing that I did caused or contributed to the mistrial, and therefore, in my view, no reasonable person knowing the facts and history of this case would interpret my decision to remain as the trial judge as one suggesting a reasonable apprehension of bias on my part. [ 15 ] My decision not to provide reasons for denying the accused's Charter application for a judicial stay in the first trial must be placed in its proper context so that it can be properly understood. The first trial was set for ten days.

A number of pre-trial applications had been addressed in the months leading up to the trial date and the expectation was the trial would begin immediately following jury selection. On day one of the trial, the jury was selected; however the jurors were then excused so that the accused's application could be heard. Why the application was not heard with all of the other pre-trial motions well in advance of the trial is unclear to me. The evidence and arguments on the application took the entire week. On the following Monday morning I rendered my decision on the application.

In doing so, I advised the Crown and the defence that the application was dismissed and that oral reasons would be delivered later. Immediately thereafter, the jury was brought in and the trial got underway. Before the trial could complete, counsel for the accused had to withdraw from the case on account of a serious personal health condition. This led to the mistrial.

All of this occurred prior to my being able to deliver my reasons for denying the accused's application for a judicial stay. [ 16 ] The accused has indicated he will again be applying for judicial stay on account of an unreasonable delay in getting his matter to trial. Counsel for the accused has explained that my previous denial of the application and my decision not to deliver reasons for doing so, could lead a reasonable and right-minded person to form the impression that I have already decided the renewed application before hearing it.

In my opinion, the declaration of the mistrial brought the first trial to an end and resulted in my being functus with respect to anything relating to that trial. In the result, I concluded it was unnecessary and inadvisable for me to deliver my reasons on the accused's application. The accused's new application for a judicial stay will be heard, irrespective of who is the trial judge. I see no prejudice to the accused in proceeding with the renewed application without knowing the reasons for my previous denial of his application.

The circumstances have changed since the hearing of that first application, and I do not agree with the accused's submission that a right-minded person, knowing all of the facts in this case, would conclude that a reasonable apprehension of bias against him exists. [ 17 ] Finally, the accused is concerned about comments I allegedly made at a pre-trial conference to the effect that he should not be surprised if the results of any re-hearing of previous pre-trial motions are the same as those in the first trial.

There is no transcript of those proceedings at the pre-trial conference and therefore we are all at a disadvantage regarding what was actually said, and the context in which it was said. If I made these remarks, then they must be placed in their proper context. There have been multiple pre-trial appearances where attempts have been made to identify and clarify what pre-trial motions the defence wishes to pursue, and what arguments will be advanced on those applications.

Counsel for the accused has indicated that some of the applications may be based upon the same arguments that were advanced at the first hearings. The comments attributed to me by the accused may well have been in response to such a submission. I am not satisfied that these comments justifiably lead to the conclusion that there is a reasonable apprehension of bias in the present case. [ 18 ] In determining whether there is a reasonable apprehension of bias, I have considered the factors cited by the accused, individually as well as collectively.

The jurisprudence is clear that the threshold for such a finding is high and that it cannot be based upon speculation. It is also important to remember that the test to be applied involves an objective assessment of all of the circumstances. In the present case the accused places great weight and reliance on the fact that on one occasion I referred to him as "Mr. Guilt". On paper and taken in isolation, that reference may be cause for some concern.

However, when one listens to what was actually said, and how it was said, and considers that along with everything else that was said to the jurors at that time, there is, in my opinion, no rational possibility that a right-minded and informed person would conclude that a reasonable apprehension of bias exists. [ 19 ] Counsel for the accused has urged me to consider the accused's right to a fair trial when deciding this application. He

underscores the fact that he does not suggest that actual bias exists, just the reasonable apprehension of bias. Counsel has made his submissions in a thoughtful and principled manner and I can assure him, his client, and Crown counsel, that I have taken absolutely no offence at what has been presented on this application. [ 20 ] Having said all of this and having kept in mind the accused’s right to a fair trial, I must say that I am not persuaded by the arguments advanced on behalf of the accused.

In my respectful opinion, the accused's contention that there is a possibility of a reasonable apprehension of bias against him is nothing more than unsubstantiated speculation. Moreover, in my view the evidence on this application falls far short of the high threshold that must be met before concluding that a reasonable apprehension of bias exists and that I should recuse myself. [ 21 ] For all of these reasons, the accused's application is dismissed. “G. R. J. Gaul J.”