D. v. D. Date:, 2012 BCPC 221

Citation: D. v. D. Date: 20120213 2012 BCPC 0221 File No: 12453 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: I. D. APPLICANT AND: D. D. RESPONDENT RULING OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Appearing in person: Not present

Counsel for the Respondent: D. Klassen Place of Hearing: Abbotsford, B.C. Date of Hearing: December 13, 16, 2011 Date of Judgment: February 13, 2012 [1] THE COURT: This is I.D.’s application that I recuse myself, along with four of the other judges resident in AbbotsfordProvincial Court. [2] On Tuesday, December 13th, I.D. presented his argument, but said that he had a box of case law at home. I adjourned thematter to the judicial case managers to fix a continuation date, but I.D. did not follow my direction and attend at the JCMs.

A telephonemessage was left advising him of the scheduled date, being December the 16th, but he did not attend then or at the two subsequent datesthereafter. I will proceed with judgment. [3] The test for recusal has long been established by the Supreme Court of Canada. What would an informed person, viewing the matter realistically and practicably, and having thought the matter through, conclude?

Would he think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly … Thegrounds for this apprehension must be substantial." The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons. (Committee for Justice and Liberty v.National Energy Board (SCC), [1978] 1 SCR 369; Liszkay v. Robinson [2003] BCCA 506) [4] Another theme which emerges from the case law is that litigants must not be able to remove a judge preferentially.

In R. v.Mitchell [2002] BCSC 3, at para. 40, Fraser, J. stated: It is important that litigants, both in the criminal and civil domain, not be able to remove a judge by a mere allegation of bias. The evil is"judge shopping" in which a litigant seeks a favourable result by trying to choose (or to avoid) one judge. [5] The same principle was also enunciated in DeCotiis v.

DeCotiis [2004] BCSC 117: It is the duty of a judge to hear cases that come before him or her, and a party should not be able to unilaterally choose not to have amatter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party without soundreason is able to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice intodisrepute. [6] A judge is not required to recuse herself simply because of a prior adverse ruling concerning a litigant.

As stated in R. v.Novak (BC CA), [1995] BCJ No. 1127 (BCCA): 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 prejudgment of the results of the second hearing. [7] With those principles in mind, I turn to the application in this case. [8] I.D. has framed his application for recusal on the following grounds: First, he has appealed my order dated September the 8th,2011, as well as earlier orders of the four other judges named in the application.

More specifically, I.D. has submitted that the courtrefused to allow him to ask questions during the hearing, did not lay charges of perjury, and failed to follow the law. [9] Secondly, I.D. continues to express certain ongoing concerns, to the effect that DARS audio proceedings are being concealedfrom him, documents are missing or being withheld, and he has not been allowed access to the file. [10] I will deal with I.D. expressed concerns in reverse order. In this regard, I specifically rely on my Reasons for Judgment datedSeptember the 8th, 2011.

As stated in paragraphs 28 through to 36, I.D.has had full access to the file and all of the documents within it. There is no concealing of DARS audio recording or any of the documents within the file. As to the appeal, the court in fact welcomesthe appeal process to ensure no errors in law have occurred. The length of the hearing, being four days, would indicate that ample timefor questioning of the two witnesses was in fact allowed.

Finally, it is not a function of the court to lay criminal charges; any concerns asto perjury should be reported to the police. [11] More generally, it seems apparent that I.D. is not alleging actual bias on the part of the court, but more his own apprehension ofbias. I cannot find that an informed person, viewing the matter realistically and practicably, would share those concerns.

In my view,efficiency, fairness to both parties, and the proper administration of justice requires that one judge remains seized of this file, as indeed,I.D. himself originally asked me to be. [12] Accordingly, the application for recusal is dismissed. I remain seized of the file.

_____________________ C.J. Rounthwaite Provincial Court Judge