R. v. Maligaspe, 2023 BCSC 126

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Maligaspe, 2023 BCSC 126 Date: 20230109 Docket: 110850 Registry: Kamloops Rex v. Nihal Ananda Maligaspe Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Gropper (appearing via videoconference) Oral Reasons for Judgment on Mistrial #1 and #2 Counsel for the Crown: K.

Bouchard Counsel for the Offender: J. Michi Place and Date of Hearing: Kamloops, B.C. October 21, November 3 and December 9, 2022 Place and Date of Judgment: Kamloops, B.C. January 9, 2023 [ 1 ] THE COURT: There are two mistrial applications by Mr. Maligaspe before me. Background Mistrial #1 [ 2 ] Mr. Maligaspe was charged with three counts of sexual offences against the complainant. He elected trial by judge and jury. On March 3, 2022, Justice Matthews was appointed as trial judge. [ 3 ] The trial commenced on April 26, 2022. [ 4 ] On May 6, 2022, Mr.

Maligaspe was convicted by the jury on two of the three counts in the indictment. Matthews J. adjourned the proceedings to a sentencing hearing that was scheduled to occur on September 16, 2022. [ 5 ] On May 11, 2022, the complainant first spoke to a lawyer from the trial judge's former firm, Camp Fiorante Matthews Mogerman LLP (CFMM), about the possibility of a civil action against Mr. Maligaspe. The complainant retained the firm on June 8, 2022 and upon her instructions the firm filed a notice of civil claim against Mr. Maligaspe on June 22, 2022. [ 6 ] The notice of civil claim was served on Mr.

Maligaspe on June 28, 2022. He provided a copy of it to his counsel on that date. [ 7 ] The trial judge advised counsel that she first learned of her former firm's involvement on June 28, 2022. She advised counsel of this by memo on July 4, 2022 and requested counsel's participation in a case management conference.

There were two case management conferences with the trial judge: the first on July 27, 2022 and the second on August 18, 2022. [ 8 ] After the second case management conference concluded, Matthews J. issued a memo to counsel dated August 18, 2022 advising that she had decided that she must recuse herself from the case. She provided her reasons at paragraphs 7 and 8 of the memo: [7] Based on the information I have about residual financial matters consequent on my departure from the firm at the time of my appointment, I conclude there is a reasonable apprehension of bias.

In reaching this conclusion, I am cognizant of Mr. Maligaspe's interest, and the interest of the public as a whole, in timely sentencing, however I have concluded that I am unable to continue. [8] I will have no involvement in future proceedings. I have advised Associate Chief Justice Holmes of my decision to appoint a judge to preside at the sentencing. …

[ 9 ] On August 22, 2022, Holmes A.C.J. appointed me to preside over the sentencing proceedings under s. 669.2 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ] and directed that the sentencing hearing scheduled to take place on September 16, 2022, be heard before me. The sentencing hearing was adjourned in light of the application by the defence to declare a mistrial (Mistrial #1). [ 10 ] On August 30, 2022, Mr. Maligaspe made an application for a mistrial.

He asserted that the post-verdict recusal of the trial judge on the basis of her conclusion that a reasonable apprehension of bias arose consequent on the complainant retaining her former law firm to represent the complainant in a civil claim against the accused should result in a mistrial. [ 11 ] The Crown opposed that application, asserting that this Court is functus officio and has no ability to declare a mistrial as the jury has rendered its verdict.

Alternatively, the Crown asserted, if the Court has jurisdiction to declare a mistrial, the reasonable apprehension on the part of the trial judge arose post-verdict and cannot retroactively taint the perceived fairness of the trial. [ 12 ] I heard the application for Mistrial #1 on October 21, 2022. On November 3, 2022, I provided oral reasons dismissing that application. Mistrial #2 [ 13 ] Counsel for the defence filed a submission on findings of fact for the purpose of sentencing on September 22, 2022, as I had directed in the pretrial conference of August 20, 2022.

At that time, I had advised defence counsel that those submissions may be helpful to me in addressing his application in Mistrial #1.

Unfortunately, through inadvertence, that submission was not provided to me before I gave my reasons on November 3, 2022 meaning that I did not consider it in reaching my conclusion to dismiss the application. [ 14 ] Upon learning that there was a submission made that I had not considered, I informed defence counsel that I would reopen Mistrial #1 and give him an opportunity to make further submissions and that the oral reasons I had given were not final and would be subject to consideration of his submissions in respect of the findings of fact and any further submissions that he would make. [ 15 ] On November 20, 2022, defence filed an application for Mistrial #2.

The basis of that application is that I failed to consider the defence submissions on the findings of fact when deciding the Mistrial #1 application. Mistrial #1 Positions of the Parties Defence [ 16 ] The defence submits that the trial judge's determination that a reasonable apprehension of bias has arisen based on Matthews J.'s findings that there was a reasonable apprehension of bias in relation to continuing to be the trial judge in this matter.

He argues that the Court ought to declare a mistrial on that basis. [ 17 ] The defence asserts that, in recusing herself from any further involvement in the case, Matthews J. was obviously aware of two well-established principles: first, that there is a high standard needed to establish a reasonable apprehension of bias in the first place ( Yukon Francophone School Board , 2015 SCC 25 at paras. 25-26 ); and second, the principle that trial judges should not recuse themselves simply out of an abundance of caution and take care “not to create an impression that they are disqualified when in law and they are not” ( R. v.

Quinn , 2006 BCCA 255 at para. 53 ). The defence says that in finding that there was a reasonable apprehension on the basis of bias in this case taints the fairness of the entire proceedings, not just the sentencing proceedings.

Appointing a different judge under s. 669.2 of the Code to conduct the sentencing proceedings is, in the defence's view, insufficient to ameliorate the harm to the appearance of unfairness of the entire proceedings, including the finding of guilt by the jury. [ 18 ] The defence submits that the existence of a reasonable apprehension of bias is a serious finding on its own and will almost always result in a mistrial. The reasonable apprehension of bias in the circumstances of this case is sufficiently serious that the only fair remedy is a new trial. Specifically, the defence argues that Mr.

Maligaspe, in the defence's words, “was found guilty of a serious sexual offence in the trial when the trial judge's former law firm -- what still bears her last name -- was suing the applicant for the very same conduct that the trial judge adjudicated upon.” The defence asserts that this raises serious concerns about the overall perception of fairness to Mr. Maligaspe. Thus, a mistrial is the most proportionate remedy to the reasonable apprehension of bias that arises in this case. [ 19 ] The defence argues that the sentencing hearing is part of the trial proceeding.

He argues that this Court is not functus , but that I have the power to declare a mistrial in accordance with my inherent jurisdiction. It is a plenary power to protect trial fairness and the interests of justice. [ 20 ] The defence asserts that optics are important and there is a strong public interest in ordering a mistrial at a well-informed, reasonable person considering the circumstances would conclude that the trial process is unfair or appears to be unfair and that there is no other remedy other than a mistrial that could cure the unfairness or the appearance of unfairness: R. v.

Khan , 2001 SCC 86 at para. 27 . [ 21 ] The defence says that issues arise where one judge hears the evidence given at the trial and another judge hears the sentencing, particularly regarding the findings of fact made on sentencing that justify, in the defence's view, a declaration of a mistrial and the ordering of a new trial.

The defence points out that it is not clear whether the jury convicted having unanimously found that the accused committed one specific offence during the timeframe referred to in the information, or whether the jury found the accused committed an offence during the timeframe, whether or not it was the same specific event (see R. v. Adams , 2022 BCSC 1519 ). With that ambiguity,

the defence says, it is unfair to the accused to have a different judge hear the sentence than heard the trial evidence. This cannot beresolved by the sentencing judge listening to a portion of the digital audio recording (DARS) of the trial or by reading a portion of thetranscript. [22] The defence also contends that the submission on the findings of fact that are [indiscernible/videoconference] concerning mattersof credibility and reliability cannot be properly addressed [indiscernible/videoconference] in the sentencing context without having seenthe parties give their evidence at trial.

Crown [23] The Crown asserts that the Court is functus officio in its ability to declare a mistrial as the jury has rendered its verdict. In thiscase, because the jury was the trier of fact, once it delivered its verdict, the assessment of guilt is final, subject only to appeal: R. v. Head, (SCC), [1986] 2 S.C.R. 684 at paras. 25-26. The Crown asserts that the trial judge's jurisdiction to, after a jury verdict,declare a mistrial is extremely limited.

The normal rule, following the delivery and recording of the verdict by the jury, is that the trialjudge is functus in respect of that verdict, which cannot be altered except on appeal: R. v. Henderson (2004), (ONCA), 189 C.C.C. (3d) 447 (O.N.C.A.) at para. 27; leave to appeal refused, [2005] S.C.C.A.

No. 12. [24] Alternatively, the Crown says that even if the Court had jurisdiction to declare a mistrial at this point, the events that gave rise tothe reasonable apprehension of bias on the part of Matthews J. arose after the jury verdict and cannot retroactively taint the fairness orperceived fairness of the trial proper. Analysis Functus [25] The parties disagree on whether I am functus. Mr. Maligaspe submits that, although the jury has returned its verdict, the court hasthe power to order a mistrial. The court is only functus officio once a sentence has been imposed: R. v.

Griffith, 2013 ONCA 510 at para.12: On the basis of this court's decision in R. v. Lessard . . . (ON CA), [1976] O.J. No. 74 . . . [that is also of the OntarioCourt of Appeal] . . . it cannot be doubted that the trial judge was not functus until he imposed sentence.

In Lessard, Martin J.A.,speaking for the court, held that a judge sitting without a jury is not functus officio until he has imposed sentence or otherwise finallydisposed of the case . . . [26] Different considerations apply where the finding of guilt is by a jury, because the trial judge will be functus: Henderson at para.29: A trial judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial after a jury verdict is extremely limited.

The normalrule is that following the delivery and recording of a verdict by [a] jury, the trial judge is functus in respect of that verdict, which cannotbe altered, except on appeal. The rule is somewhat different in a judge-alone trial. In that case, where the trial judge has entered a verdictof acquittal, the verdict is final and cannot be subsequently altered by the trial judge.

However, where [the] trial judge convicts anaccused but has not yet sentenced him or her, the trial judge is not functus in respect of that charge, and can, in exceptionalcircumstances, vacate the adjudication of guilt before sentencing: [citations omitted] [27] Henderson refers to an exception where the accused seeks a stay of proceeding on the basis of entrapment. There is also theability of a judge to enter a stay after conviction, based on a breach of the accused's s. 11(

b) rights and the principles expressed in R. v.Jordan, 2016 SCC 27. [28] The defence argues that Henderson takes too narrow an approach to the issue of functus, or is wrong, and refers to the decision ofR. v.

Cowan, 2022 ONCA 445, where the apprehension of bias arose from an irregularity after the jury rendered its decision. [29] In Cowan, the defence appeal was successful on the basis that a reasonable apprehension of bias arose, both from the failure ofthe Crown to advise the defence that he and the trial judge had agreed two years earlier that they would not appear on the same case;and, after the verdict but before sentencing, Crown and the trial judge had drinks and dinner together.

Although the defence articlingstudent was invited to join them, she considered it to be wrong because the trial judge would be hearing the matter of parole ineligibility.The Court agreed with the defence that there was a reasonable apprehension of bias arising from both events. The Court found that therewas a miscarriage of justice at the accused's trial. [30] With respect, I disagree with defence that the Cowan decision reflects that Henderson takes too narrow an approach or that it iswrongly decided.

Cowan considered whether an appeal ought to be allowed on the basis that there was a reasonable apprehension of biason the part of the trial judge. The case does not deal with the functus argument. In Cowan, the trial judge presided over both the jurytrial, resulting in a conviction, and the sentencing. [31] In this case, the trier of fact returned the verdict that was intended. It is clear and unambiguous.

The verdict was properlyrecorded. [32] I agree with the Crown that in the circumstances this Court is functus officio and I cannot declare a mistrial. [33] In the event that I am wrong in that conclusion, I will go on to consider whether Matthews J.’s recusal after the verdict revealed areasonable apprehension of bias that has tainted the entire proceeding. Is a Mistrial an Appropriate Remedy?

[34] Matthews J. recused herself from the sentencing aspect of this case on the basis that the circumstances raised a reasonableapprehension of bias. Her former law firm, CFMM, is now acting for the complainant in a civil suit against Mr. Maligaspe in respect ofthe same conduct that was an issue at the trial over which she presided.

She specifically referred to the test for reasonable apprehensionof bias as whether a reasonable, fair-minded, and informed person, viewing the matter realistically and practically, would conclude thatthe trial judge, consciously or unconsciously, would not decide the matter fairly: Wewaykum Indian Band v. Canada, 2003 SCC 45 atpara. 74. [35] In other words, Matthews J. found that the standard of disqualification had been met. [36] The defence asserts that the relevant authorities concerning motions of recusal are generally joined with requests for a mistrial.

Itargues that consistent with the principle that a finding of bias will generally result in a new trial. The defence relies on R. v. CurraghInc., (SCC), [1997] 1 S.C.R. 537; R. v. M.M., 2022 ONCA 63 at para. 17; Griffith; and R. v. C.D.H., 2015 ONCA 102. [37] The defence also relies on the statement of Fitch J.A. in R. v. Mehl, 2021 BCCA 264 at para. 280: Once established . . . a reasonable apprehension of bias incurably taints the proceedings: R. v. Curragh Inc., (SCC),[1997] 1 S.C.R. 537 at paras. 6–7; Khan at para. 70.

Preservation of the integrity of the justice system will ordinarily require the grantingof a new trial. In a criminal context, appellate intervention under s. 686(1)(a)(iii) of the Code will be required to relieve against theensuing miscarriage of justice . . . [38] Mehl continues at para. 281: In summation, the reasonable apprehension of bias inquiry is inherently contextual and case-specific, with a correspondingly high burdento prove the claim on the party alleging bias: Yukon Francophone School Board at para. 26.

While previous judgments are helpful indiscerning the governing principles and as illustrations of the application of those principles in unique contexts, they are notdeterminative of the resolution of this appeal. [39] The defence argues that a well-informed reasonable person aware of the circumstances would conclude that the trial process isunfair or has the appearance of unfairness.

He asserts that it would be more egregious if CFMM had been hired before the conviction,however the fact that it was engaged five days after is less important, as there is still a reasonable apprehension of bias; and, as I havenoted, the defence points out that CFMM continues to bear Matthews J.’s name. [40] In R. v. Goodpipe, 2018 SKQB 189 a new judge was assigned to conduct sentencing proceedings where there was found to be amere potential on the part of the originally assigned trial judge.

In Goodpipe, the trial judge found that the standard of disqualificationhad not been met but determined that for various reasons including a potential for bias if certain things were to occur in a sentencinghearing, fairness to the accused and the interests of the administration of justice suggested that it was appropriate to recuse himself in thesentencing proceedings.

In Goodpipe, the issues leading to the recusal existed before the jury came to its verdict but came to light afterthe verdict was reached. [41] In respect of the defence position that the same judge ought to hear both the trial and sentencing portions of the trial, I disagree.The Code expressly contemplates such a circumstance in s. 669.2(1) and (2): Subject to this section, where an accused or a defendant is being tried by … (

c) a court composed of a judge and jury, as the case may be, and the … justice …is for any reason unable to continue, the proceedings may be continued before another justice …who has [the] jurisdiction to try the accused or defendant. …

(2) Where a verdict was rendered by … a justice … before whom the trial was commenced, the … justice … before whom theproceedings are continued shall, without further election by the accused, impose … punishment or make an order that is authorized bylaw in the circumstances. [42] Even if the trial judge is also the sentencing judge, any ambiguity arising from a conviction must be addressed in sentencing.Matters of credibility and reliability are matters that must be addressed by every sentencing judge. The difference here is that the trialjudge heard the evidence and I have not.

Nevertheless, I do have the benefit of all of the transcripts and access to all of the recordingsand the other evidence filed at this trial which I intend to read fully; and, with the assistance of counsel, I am satisfied that I will be ableto make the necessary findings of fact in order to fairly and promptly sentence Mr. Maligaspe in this case. There is no reasonableprospect that my findings of facts can be tainted by the circumstances that led to Matthews J.’s recusal.

There is a strong presumption ofjudicial impartiality, referring to Mehl. [43] Because there was no reasonable apprehension of bias during the jury trial, and up to and including the verdict, and because thecomplainant had no contact with the law firm until after the jury returned its verdict, a reasonable person aware of the circumstances,would be satisfied that any previous apprehension of bias, potential of prejudice to the accused, or unfairness in this matter has beenremoved by the appointment of a new judge, who will complete the matter of sentencing Mr.

Maligaspe without delay. [44] In the circumstances, I decline to declare a mistrial. Mistrial #2

Positions of the Parties Defence [ 45 ] The defence argues that my failure to consider the defence submissions on the findings of fact when deciding Mistrial #1, gives rise to a new second reasonable apprehension of bias. Specifically, the defence points out that it assumed that I had considered its submissions on the finding of facts. Defence counsel made choices regarding the efficient presentation of the material bearing in mind effective use of the Court's time. The Crown's oral and written submissions in Mistrial #1 responds to arguments that defence counsel made in its submissions of finding of facts.

In particular, in its submissions on the findings of fact, the defence made reference to the adequacy (or not) of the DARS recordings and transcripts of the proceedings.

This was not considered by the Court and is, in the defence's view, a breach of natural justice ( audi alteram partem ). [ 46 ] The defence asserts that I must not assume that the Crown's assertions on the findings of fact were not disputed by the defence, when they are, and that I must not assume that there was an agreement by the defence to the Crown's submissions on findings of fact, including the credibility of both parties, when they were not. [ 47 ] The defence says that the Court must have considered defence counsel in a negative light by assuming that the submissions had not been filed as directed.

The defence argues that those considerations demonstrate a reasonable apprehension of bias and that Mr. Maligaspe will be considered in the same negative light. [ 48 ] The defence submits that there have now been two significant irregularities in this trial, each amounting to a reasonable apprehension of bias. They both may pertain to events arising after the verdict, but cumulatively, in the eyes of a reasonable observer, they cast out on whether Mr.

Maligaspe is receiving a fair trial. [ 49 ] Defence refers to the following authorities, to which it referred in Mistrial #1. [ 50 ] Curragh involved a trial judge calling administrative Crown counsel to seek the removal of Crown counsel from the trial and a stay of proceedings issued after that occurred. At para. 5 the Court held: . . . a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held.

In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new trial. [ 51 ] In Khan , the Court considered whether a reasonable apprehension of bias arose from an irregularity in the transcripts that were given to the jury before the verdict. The Court held at para. 73: Whether a “miscarriage of justice” has occurred asks whether the trial was unfair, or alternatively whether an appearance of unfairness was created . . .

This last element should be evaluated in relation to a reasonable and objective observer, by asking if the irregularity would be such as to taint the administration of justice in his or her eyes . . . We must look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial [was] unfair or . . . appearing to be so. [ 52 ] The Court in Khan also held at para. 77 , that: When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial.

Sometimes, a trial in which more than one error has occurred can be seen as unfair, even if [those] irregularities standing alone might not have been fatal on their own.

Crown [ 53 ] The Crown maintains its position that this Court is functus officio in its ability to declare a mistrial, as the jury has rendered its verdict; and, alternatively, even if the Court had jurisdiction to declare a mistrial at this point, the events giving rise to any reasonable apprehension of bias reflect a mere “irregularity” that has not prospectively tainted the fairness of proceedings or resulted in a reasonable apprehension of bias. Analysis Functus [ 54 ] While I have concluded that the Court is functus in respect of Mistrial #1, I do not reach the same conclusion here.

Mistrial #2 addresses events that occurred under my watch, in the context of a sentencing proceeding generally. I have the jurisdiction to address Mistrial #2 and consider whether a mistrial ought to result. Is a Mistrial an Appropriate Remedy? [ 55 ] As I have stated, it is unfortunate and inadvertent that the defence submissions on the findings of fact were not provided to me as part of the materials considered in respect of Mistrial #1. Nevertheless, I do find that it does not raise a reasonable apprehension of bias.

It was irregular, to be sure, but I took steps to address it by reopening the application and seeking further submissions from the defence. The defence chose to do so in the context of an application for Mistrial #2. [ 56 ] I have now had the opportunity to consider the defence submissions on findings of fact and the further submissions made by the defence.

[ 57 ] I have declined to declare a mistrial in respect of Mistrial #1 on the basis of the facts and arguments presented. In respect of the position taken by the defence as to the reasonable apprehension of bias in Mistrial #2, this does not arise from my failing to consider submissions the defence made that was not brought to my attention.

I agree with the Crown that it is irregularity, but, in and of itself, it does not taint the fairness of the proceedings. [ 58 ] The defence asserts that a bias may arise from my seeing the defence counsel's conduct as negative, by my assuming that no submission had been made in accordance with my direction. Counsel suggests that I may consider Mr. Maligaspe in that same negative light. I want to assure counsel and Mr. Maligaspe that I have no negative perceptions of either of them. In my experience as a trial judge, there are times when counsel have declined to make submissions in accordance with my directions.

This does not affect my impartiality as a trial judge. I am required to provide decisions based on the evidence, submissions before me, and, in this case, the principles of sentencing and the applicable case law, not the timing and the receipt of a particular submission. [ 59 ] The defence asserts that I must have assumed the Crown's assertions on the findings of fact were not disputed by the defence and that there was an agreement by the defence to the Crown's submissions on findings of fact, including the credibility of both parties.

I have made no such assumptions in relation to either party's submissions on the findings of fact. I have received them and I have reviewed them for the purpose of these mistrial applications, but I have not made any findings of fact as yet. We have not come to that stage in these proceedings. [ 60 ] The defence submits that there have been now two significant irregularities in this trial, each amounting to a reasonable apprehension of bias or cumulatively amounting to a reasonable apprehension of bias. The defence says that they may both pertain to events arising after the verdict.

The defence says, in the eyes of a reasonable observer, they cast doubt on whether Mr. Maligaspe is receiving a fair trial. [ 61 ] I agree that there have been two irregularities in this trial. However, the facts giving rise to the application for Mistrial #1 are not intertwined with the facts relating to Mistrial #2. I am not convinced that I should consider the cumulative effect of there being two applications of a mistrial. [ 62 ] I am aware of the Mehl decision, where the Court considered the cumulative effect of irregularities to determine that there was a reasonable apprehension of bias.

In that case, the facts involved a juror who was observed making gestures to the witnesses. There were several incidents and each may have demonstrated the juror's bias against the accused. That case, while providing guidance on the jurisprudence related to the reasonable apprehension of bias, is entirely distinguishable on the facts. [ 63 ] I have concluded that my not considering the defence submissions on the findings of fact before reaching a decision in Mistrial #1 does not raise a reasonable apprehension of bias. I have considered them now. [ 64 ] There is no basis for a declaration of a mistrial.

Conclusion [ 65 ] I vacate my original oral decision on Mistrial #1 delivered on November 3, 2022, and substitute this decision. [ 66 ] I agree with the defence that it is important, in the public interest, for this Court to address these matters before sentencing proceeds. In this regard, it is important that the defence raise these issues, in order that a well-informed, reasonable person would be aware of the particular circumstances of the case and would be satisfied that there is no reasonable apprehension of bias that arises and that a mistrial ought not be declared. “Gropper J.”