R V Talal Fouani, 2023 ABCJ 253

In the Alberta Court of Justice Citation: R V Talal Fouani, 2023 ABCJ 253 Date: 20231115 Docket: 220570832P1 Registry: Calgary Between: His Majesty the King - and - Talal Fouani Accused Decision of the Honourable Justice G.D.M. Stirling Introduction [ 1 ] The accused Mr. Talal Fouani has applied to have me recused as the sentencing Judge in relation to his guilty plea to one count of laundering proceeds of crime contrary to

section 462.31(a). The recusal application was heard on November 15, 2023. Following counsel submissions, I denied the accused application and indicated I would provide reasons for my decision. These are my reasons. Background [ 2 ] Before addressing the reasons for denying Mr. Fouani’s application, it is helpful to set out a cursory overview of some of the procedural steps and applications that have arisen in relation to the guilty plea. [ 3 ] Mr. Fouani entered a guilty plea on March 17, 2023, to one count of money laundering contrary to

section 462.31(a). At the time the guilty plea was entered Defence counsel Mr. Niv confirmed he had reviewed section 606 (1.1). with the Mr. Fouani. He again reviewed those conditions on the record, paraphrasing section 606 (1.1), before Mr. Fouani entered his plea. [ 4 ] When the guilty plea was entered the Crown and Defence had not reached an agreement on the facts to be admitted by Mr. Fouani. It was contemplated by the parties that there would be a hearing characterized by the parties as a “Gardiner” hearing to determine the facts relevant to the sentencing.

The parties had earlier scheduled a 6-week trial that was to commence on September 5, 2023, and it was proposed that a portion of that 6-week period could be used for the “Gardiner” hearing. Publication ban, settlement privilege and other applications [ 5 ] Prior to the entry of the guilty plea Mr. Fouani filed an application for an in-camera hearing and publication ban on the facts and counsel submissions in relation to the guilty plea.

The in-camera hearing and publication ban was opposed by the Crown and by CBC and CTV who were represented by counsel, and by Post Media who endorsed the position taken by CBC/CTV. During Defence counsel submissions on the publication ban on March 17, 2023, Mr. Fouani abandoned his application for an in-camera hearing, at least as it related to the entry of the plea. Defence counsel also indicated that Mr. Fouani was not opposed to the media publishing the fact that Mr. Fouani had entered a guilty plea to laundering proceeds of crime. Mr.

Fouani maintained the balance of his application for a publication ban on the facts, materials filed and submissions by counsel related to the guilty plea. [ 6 ] As part of the Crown’s material filed in opposition to the publication ban the Crown included in its brief of law a draft

agreed statement of facts ( the “draft ASF”). The Crown indicated in its brief that none of the facts in the draft ASF were admitted by Mr. Fouani. Mr. Fouani took the position that the draft ASF was subject to settlement privilege and ought not to have been disclosed. The Crown disputed the draft ASF was privileged. At the March 17, 2023 application the Defence sought a sealing order on the draft ASF until the issue of whether it was subject to settlement privilege could be determined.

The Crown did not oppose the sealing of the draft ASF and the Media took no position. [ 7 ] Following submissions, I directed the Media could report on the fact that Mr. Talal Fouani had applied for a publication ban and that he had entered a guilty plea to money laundering. I granted an interim ban on all materials filed and on submissions of counsel until the application for a permanent publication ban was heard.

I also granted a sealing order on the Crown’s draft ASF until the issue of whether the document was subject to settlement privilege was determined. [ 8 ] I also directed that certain procedural steps be scheduled including a cross-examination of Mr. Fouani on his affidavit filed in support of the publication ban. There was also a direction that the accused file a fresh notice to the Media and a fresh Form 1 application to clarify what specific relief was being sought by the applicants, as there was some confusion at the hearing on March 17, 2023. For example, the notice included additional applicants to Mr.

Fouani and the notice did not indicate which portions of the sentencing hearing for which Mr. Fouani was seeking an in-camera hearing. A further case management hearing was scheduled for March 24, 2023. [ 9 ] On March 20, 2023, I received an email from counsel for Mr.

Fouani indicating he was instructed to abandon the application for a publication ban. [ 10 ] On March 21, 2023, I received correspondence from counsel for the Media requesting that any formal abandonment of the publication ban application be made in court at the case management meeting scheduled for March 24, 2023, and that in light of the abandonment of application the status of the interim bans made on March 17, 2023, should be addressed. [ 11 ] At the March 24, 2023 case management hearing, counsel for Mr.

Fouani indicated his client was deeply emotionally affected by his last appearance in court and that he did not have the “resources or psychological ability” to pursue the publication ban application. Defence counsel nevertheless asked that the interim bans remain in place; and he confirmed that his client was still seeking a permanent ban on publication of the sentencing proceedings. Counsel for the Media and Crown indicated that if Mr. Fouani was not prepared to advance his application until the right of Mr. Fouani to a permanent ban could be argued and determined, the interim bans should be lifted. [ 12 ] Mr.

Niv’s submissions on March 24, 2023, were inconsistent with his email correspondence on March 21, that his client was abandoning the publication ban application. Mr. Fouani was not in court on March 24, 2023, due to health reasons. Given the inconsistency in the position of Mr. Fouani, I asked Mr. Niv to confirm whether or not Mr. Fouani was pursuing a publication ban.

As I allowed the interim ban and sealing order to remain in place, I asked Defence counsel to clarify his instructions by March 31, 2023 [ 13 ] In the early evening on the same day, following the March 24, 2023 appearance I received correspondence from Mr. Niv stating: “He [Mr. Fouani] will not be filing further materials or submissions and asks this Court to provide reasons for lifting the interim ban on April 3, 2003” ( bolding and underlining in the original). [ 14 ] In the same letter, Mr. Niv stated: Mr.

Fouani seeks a ruling from the Court on whether the Court is prepared to strike the Agreed statement of facts” on April 3, 2023, and if not, why.” (bolding and underlining in the original) [ 15 ] The March 24, 2023 correspondence was of concern to me as counsel for Mr. Fouani was requesting that the court make a decision on imposing a publication ban and sealing order without hearing submissions from the Crown and counsel for the Media who were opposed to the relief sought by Mr. Fouani.

It also evidenced a misunderstanding that an interim ban could remain in place indefinitely without the application for a publication ban being heard. Finally, counsel for Mr. Fouani sought to impose a deadline on the Court to make these decisions. [ 16 ] On March 27, 2023, in response to Mr. Niv’s March 24, 2023 letter I advised counsel that it was not appropriate that substantive arguments related to Mr. Fouani’s application for a publication ban and sealing order be argued through an exchange of letters sent directly to me.

I further advised counsel that all substantive submissions were to be made on the record or in materials filed in accordance with the then Provincial Court Criminal procedure rules. I also advised that I expected counsel to comply with the case management directions given on March 24, i.e. Mr. Fouani needed to confirm by March 31 whether he intended to pursue his application for a permanent publication ban. [ 17 ] On March 28, 2023, counsel for Mr.

Fouani provided to the court an application filed March 27, 2023 for a stay of proceedings based on abuse of process arising from the Crown’s disclosure of the draft ASF in breach of settlement privilege. [ 18 ] On March 29, 2023, Mr. Fouani provided the Court with an application filed March 28, 2023 for a declaration of a mistrial based in part on a reasonable apprehension of bias arising from the directions given by me requiring a hearing on whether the draft ASF was subject to settlement privilege. [ 19 ] On March 31, 2023, before the scheduled appearance in docket at 9:00 am, in which Mr.

Fouani was to confirm whether he was abandoning the application for a publication ban, counsel for Mr. Fouani sent an email directly to me saying, in part: “If this Court has lost jurisdiction due to an apprehension of bias, the accused takes the position that this Court cannot rule or direct counsel on any matter until the issue of bias has been settled.

Consequently, I [Defence counsel] will not be complying with any directions this court has made, nor will I be making submissions on the substance of any applications, today or on April 3. I will not litigate any matters in docket court or in case management meetings. Today, I will confirm that April 3 case management meeting for the purpose of scheduling a mistrial application only. I expect this Court and opposing counsel to respect my

schedule and resources in setting filing deadlines for this and other applications.” [ 20 ] Later that morning (March 31, 2023) at the case management hearing in docket court, I ruled the Court had jurisdiction until a mistrial application was heard and determined. After that direction, counsel for Mr. Fouani then confirmed Mr.

Fouani intended to pursue the ban on publication, and he would comply with earlier directions of the court regarding the scheduling of that application. [ 21 ] After two further case management meetings the defendant’s application for a publication ban on the sentencing proceedings was ultimately heard on May 26, 2023. I gave reasons on June 12, 2023 denying the defendant’s application for a publication ban, except with respect to information identifying vehicles or residences of Mr.

Fouani. [ 22 ] Further, the sealing order of the draft ASF disclosed by the Crown was continued until an application could be heard to determine whether the document was privileged. [ 23 ] On June 20, 23 Mr. Fouani filed an amended application seeking disclosure of records (O’Connor application) from CBC/CTV and the law firm acting for the Media related to the distribution of the draft ASF included in the Crown’s brief. The application also sought a stay of proceedings based on alleged Charter breaches under sections 7 and 11(d). [ 24 ] By letter dated June 26, 2023, counsel for Mr.

Fouani indicated that the earlier mistrial/recusal application to have me removed as the sentencing Judge filed on March 28, 2023, was being abandoned by Mr. Fouani. [ 25 ] A case management hearing was held on June 29 primarily to

schedule steps associated with the defendant’s application for a determination on whether the draft ASF was privileged. The privilege application was set for September 5, 2023. [ 26 ] By letter dated July 7, 2023, counsel for Mr. Fouani sought to book dates for applications for a stay of proceedings (if the ASF was found to be privileged) a third-party records application related to the disclosure of the Crown draft ASF and an application for Mr. Fouani to withdraw his guilty plea.

The Defence also raised concerns about the status of Crown disclosure and indicated in the absence of additional disclosure the Defence could not proceed with a Gardiner hearing. [ 27 ] A further case management meeting was held on July 19.

At that case management meeting the application to determine privilege related to the draft ASF was confirmed for September 5, 2023, an O’Connor application related to the amended application filed June 20 was set for October 12, 2023, and the start of the Gardiner hearing was set for 9 days commencing November 14, 2023. [ 28 ] The application on whether the draft ASF was subject to settlement privilege was heard on September 5, 2023. Mr. Fouani was represented by Mr. Lutz, KC on the privilege application as Mr. Niv had other commitments that prevented him from conducting the privilege application.

Following oral submissions, I indicated I would need to reserve, and I would give my reasons for decision on October 12, 2023, the date that had earlier been scheduled for the defendant’s O’Connor application, which application would now have to be rescheduled. [ 29 ] On September 20, 2023, Mr. Fouani filed a Jordan application for a stay of proceedings based on undue delay. [ 30 ] There was then a further case management meeting on September 25, 2023. At that meeting Mr.

Niv again indicated that there had been incomplete and late Crown disclosure which deprived him of sufficient time to prepare for the Gardiner hearing set to commence on November 14, 2023. He proposed dates for the Gardiner hearing to start in March 2024. After hearing from counsel, I directed that the Gardiner hearing would start on November 20 instead of November 14, to allow Mr. Niv a further week to prepare, given the late Crown disclosure. I also directed the parties to make efforts to see if they could agree on what evidence could be dealt with during the week of November 20.

I also suggested if the parties could not sort out what use could be made of the week of November 20, 2023, further directions in relation to the commencement of the Gardiner hearing could be sought on October 12, 2023 when I was scheduled to give my decision on the privilege application. [ 31 ] On October 12, 2023, I gave my decision on the privilege application. and found that the draft ASF was privileged and ought not to have been disclosed by the Crown. At the same time, I found that as the Crown had indicated the facts in the draft ASF were not admitted by Fouani, there was little prejudice to Mr. Fouani.

I also indicated that the issue of what remedy if any might be available to Mr. Fouani resulting from the disclosure of the draft ASF was still to be determined. [ 32 ] On October 18, 2023 Mr. Niv wrote directly to me suggesting that as I has already made a finding that Mr. Fouani had suffered little prejudice from the disclosure of the draft ASF, before Mr. Fouani had been given an opportunity to marshal evidence by way of his third party records application, and before his application for a stay of proceedings based on abuse of process had been heard, there were serious concerns of bias. [ 33 ] Mr.

Niv’s October 18, 2023 letter was copied to Assistant Chief Justice Hawkes and a request was made of ACJ Hawkes that this matter be “re-assigned forthwith” or Mr. Fouani would make a recusal application. Counsel for Mr. Fouani also stated that Mr.

Fouani would not engage in the Gardiner hearing that I had earlier directed start on November 20, 2023, until his applications for third party records, a stay of proceedings based on abuse of process and his application to vacate his guilty plea “were adjudicated.” [ 34 ] On October 25, 2023, I wrote to the Crown and Defence counsel indicating that I expected counsel and their clients to abide by directions of the Court and that unless otherwise ordered the Gardiner hearing was to commence on November 20, 2023, as earlier directed.

[ 35 ] I also gave directions that a recusal application could be heard by me on November 15 and provided Defence and the Crown with deadlines to file material in relation to the application. [ 36 ] The foregoing is an abbreviated overview of some of the circumstances that preceded Mr. Fouani’s second recusal application. Position of the Defence [ 37 ] The Defence advances three arguments there is a reasonable apprehension of bias.

Prejudgment of other applications [ 38 ] First, in my reasons for decision on October 12, 2023, on the privilege application I stated that disclosure of the privileged draft ASF resulted in little prejudice to Mr. Fouani. [ 39 ] The Defence says Mr. Fouani has brought at least three other applications that arise from the disclosure of the draft ASF.

The applications include a third-party records application to compel disclosure by the Media and their counsel of records related to the distribution of the draft ASF, an application for a stay of proceedings or other remedy arising from abuse of process based on the disclosure by the Crown of the draft ASF, and an application to vacate Mr. Fouani’s guilty plea. In each of these applications, and in particular the application for a stay or other remedy based on abuse of process, the prejudice suffered by Mr.

Fouani from the disclosure of the draft ASF is a central issue. [ 40 ] The Defence says it has not yet had an opportunity to marshal evidence in support of these applications, nor have the applications been heard. As I have already stated that Mr. Fouani has suffered little or no prejudice I have “pre-judged” the issue of prejudice central to those applications, and as consequence there is evidence of bias or a reasonable apprehension of bias. The position of Mr.

Fouani is summarized by Defence counsel as follows: “With respect to the abuse of process, the state misconduct that led to the disclosure is not fully before the court, let alone the harm to the administration of justice that follows. This includes a failure to abide by policies set out in the PPSC desk book as well as the procedure for handling of privileged documents set out by the Alberta Court of Appeal. On the face of the record, the Crown conduct denying that privilege exists and forcing the accused to litigate this matter aggravates the breach and amounts to a further abuse of process.

The accused takes the position that the prosecutors in this matter- in the face of binding legal precedent and their very involvement in the plea negotiations- actively misled the court as to the existence of privilege and this court must distance itself from such conduct. Lastly, Mr.

Fouani has not had the opportunity to demonstrate by way of evidence the very real prejudice he has suffered which included significant legal costs associated with litigating the privilege and related applications, delay, a breakdown of resolution process, aggravated psychological harm as a result of the conduct of both the Crown and counsel for the media, (both in and outside of court) This is setting aside that Mr. Fouani had to disclose the totality of his resolution discussions for the purposes of having the document that should have never been disclosed be deemed privileged.

With respect it appears at the court has made a preliminary finding of lack of prejudice based on the Crown's assertions, and prior to hearing evidence and adjudicating the accused filed applications. This raises serious concerns of bias.” Review of settlement correspondence [ 41 ] Second, the Defence argues that by agreement the parties disclosed to me the settlement correspondence between counsel related to what sentence might be proposed and what facts might be admitted.

Having now seen this correspondence, to use the words of Defence counsel I have “seen too much” and I will not be able to approach a contested sentencing that is not coloured by the without prejudice correspondence that I have seen. Case management directions [ 42 ] Third, directing that the Gardiner hearing to proceed on November 20, 2023, is evidence of bias. The Defence has several applications outstanding including a stay of proceedings and to vacate the Mr. Fouani’s guilty plea.

Those applications should be heard first as if either application is granted the time associated with commencing the Gardiner hearing would be wasted. [ 43 ] Further, by directing the Gardiner hearing to proceed the Court has conveyed that it has already “pre-judged the Defence applications or has no intention of hearing them”. [ 44 ] The Defence argues also that by requiring the Gardiner hearing to commence in the face of the accused’s application to vacate his guilty plea is “forcing the accused to proceed with a guilty plea despite his stated intention not to do so” and creates a “miscarriage of justice”

[ 45 ] Finally, there has been late and incomplete Crown disclosure and the Defence cannot be ready for the Gardiner hearing. The Court’s failure to accede to the Defence request for an adjournment is further evidence of bias. Position of the Crown [ 46 ] The Crown says the Court has not engaged in conduct that gives rise to a reasonable apprehension of bias. Commenting on discrete evidence in the context of a voir dire hearing does not ground a basis for recusal. Case management to keep a case on track is not objectional conduct for a Judge. Dissatisfaction in a Judge’s rulings is not a basis for recusal.

Pre-judgment of other applications [ 47 ] The Court’s ruling in relation to the privilege application was limited to the issues before it, and the Court did not prejudge or pre-determine future applications. The Court ruled that the draft ASF was subject to a settlement privilege and ought not to have been disclosed, however, the Crown’s allegations contained in the draft ASF, were not subject to the privilege.

This was further clarified when the Court stated that it was the document itself that was subject to the privilege, but not the content of the Crown’s allegations. [ 48 ] The Court stated that given that Mr. Fouani has made no admission of the allegations against him for purposes supporting the guilty plea, the disclosure of the draft ASF resulted in little or no prejudice to the applicant.

The comment was regarding the lack of any settlement concession in the draft ASF and was made in the context of the Court pressing counsel to explain prejudice from the content of the draft ASF being disclosed when no settlement admissions were made that could be used against Mr. Fouani if admitted into evidence. [ 49 ] The finding of little or no prejudice was based on the record before it and the issue before it. There is no evidence to suggest the Court has closed its mind to consider further evidence in relation to the several other applications filed by the accused.

Review of settlement correspondence [ 50 ] In terms of the Court’s review of the settlement correspondence, the Crown cites R v Stinchcombe , [1993] 3 SCR 320 at para 38 . “Trial judges are frequently apprised of evidence which is ruled inadmissible…We operate on the principle that a judge trained to screen out inadmissible evidence will disabuse himself or herself of such evidence.” [ 51 ] Ruling on an interlocutory matter of this nature does not mean a Judge cannot act in any later part of the proceedings (citing Toliver v Koepke , 2013 ABCA 297 at para 5 ) [ 52 ] The application here is similar to other interlocutory applications to consider the admissibility of evidence such as a s. 276 application or an application to adduce similar fact evidence where the court can later disabuse itself of evidence found to be inadmissible.

The Court here was aware of its ability to disabuse itself of inadmissible evidence in a voir dire. The fact the issue was raised does not mean the Court had decided the question. [ 53 ] Finally, on this point the Crown notes that during the March 17 hearing counsel for the accused indicated that as this is a Judge alone proceeding “I am not concerned about the Court not being able to disabuse itself of any of that” referring to the factual allegations in the draft ASF.

Case management directions [ 54 ] Finally, the Crown says there is no bias arising from the Court’s direction that the Gardiner hearing commence on November 20, 2023. Judges have an obligation to move proceedings along and prevent delay, even if this means not acceding to a Defence request for adjournment citing R v Cody , 20217 SCC 31 (para 36-39) [ 55 ] The Gardiner hearing was set for some part of September 5 to October 3, 2023. On July 19, 2023, the dates were moved to two weeks from November 14 to November 25.

Counsel for the accused indicated that due to delays in obtaining the Crowns expert reports, he was not able to retain his own experts. As a result, an additional week of January 15 to 19, 2024 was added. Given the delays already occurring to what was originally expected to be a typical sentencing hearing, the Court was understandably concerned about the need to move along to a substantive hearing. Effective case management is not demonstrative of a lack of impartiality. Legal Framework [ 56 ] The legal principles are not in dispute.

The test for reasonable apprehension of bias [ 57 ] The test for determining reasonable apprehension of bias is well-settled and has been set out in a variety of authorities. In Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General) , 2015 SCC 25 (“ Yukon Francophone ”), Justice

Abella said: [20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows: . . . 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 likely than not that [the decision-maker], whether consciously or unconsciously, would notdecide fairly. [Citation omitted.] (Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.(dissenting)) [58] Justice Abella further noted that the test is objective and is designed to “ensure not only the reality, but the appearance of afair adjudicative process” (at para 22, original emphasis). The presumption of judicial impartiality is strong, the burden of proof is high,and a “real likelihood or probability of bias” is required to show a reasonable apprehension of bias (at para 25-26).

Further, Judges’comments should not be looked at in isolation, but instead considered in the fact-specific context of an entire proceeding (ibid). [59] The Court of Appeal has discussed the requirements for recusal based on a reasonable apprehension of bias on multipleoccasions.

In Alberta Health Services v Wang, 2018 ABCA 104 at para 4, leave to appeal to SCC refused, 38445 (April 11, 2019),Justice Slatter said: A recusal should occur if a reasonable person, properly informed, viewing the matter realistically and practically, and having thought thematter through, would think it more likely than not that the judge, whether consciously or unconsciously, would not decide fairly.

Inother words, if there is an objectively reasonable apprehension of bias the judge should recuse him or herself. [60] Justice Slatter explained at para 8 that an apprehension of bias does not arise from a litigant’s lack of success, and also notedat para 6 that judges should not be too quick to recuse themselves when challenged for reasonable apprehension of bias: … The law is clear that the judge should recuse himself when the applicant has demonstrated, based on substantive grounds, that thepresumption of impartiality has been displaced.

However, the law is also clear that judges should not recuse themselves just because theyare challenged, even if that may be the most convenient decision: 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 donot, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of ajudge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re J.R.L.; Ex parteC.J.L. (1986), 161 CLR 342 at p. 352 (Aust HC).

Recusing on inadequate grounds promotes judge shopping, disrupts the proper disposition of the case, and wastes scarce court resources. [61] In R v Stephan, 2021 ABCA 82, leave to appeal to SCC refused, 39666 and 39667 (August 4, 2022), the Court of Appealexplained that a corollary of the high bar for proving reasonable apprehension of bias is that Judges retain the ability to intervene in thematters before them as necessary: [107] Impartiality and absence of bias are both legal and ethical requirements: Yukon Francophone School Board at para 22.

Thethreshold to establish a reasonable apprehension of bias is high. And properly so. Trial judges must have the freedom to manage trialseffectively and intervene in proceedings when appropriate.

There is also a presumption that judges will carry out their oath ofimpartiality, a presumption that can only be displaced with cogent evidence that something they have done gives rise to a reasonableapprehension of bias: S(RD) at paras 116-117. [62] The Court explained that for a reasonable apprehension of bias to be proven “[s]omething must have been said or done by theJudge in the course of the proceedings that would cause a reasonable, fully informed person to apprehend that it was likely the Judgewould not decide the matter fairly” (at para 110).

The Court also reiterated that “[t]he assessment of whether the conduct of the Judgecreated a reasonable apprehension of bias will be contextual and fact specific, and the entire record must be considered to determine thecumulative effect of the alleged improprieties” (at para 111). In R v Vader, 2019 ABCA 191 at para 69, leave to appeal to SCC refused38764 (December 5, 2019), the Court said that this contextual and fact specific consideration of the entire record would include the“reasonable informed observer” reading the Judge’s decision and understanding the findings of fact that were made.

Analysis and Findings Has there been prejudgment of the remedy hearing or the otherapplications [63] In the decision given on October 12, 2023, I stated in part that “given the Crown’s express statement that none of the facts inthe agreed statement of facts are admitted, it is difficult to see how the disclosure of facts not admitted by Mr. Fouani is prejudicial toMr. Fouani” [64] I also stated that I would hear from counsel on “what if any remedy is available to Mr.

Fouani as a consequence of thedisclosure of the draft ASF” [65] As noted in Stephan ‘the assessment of whether the conduct of the Judge created a reasonable apprehension of bias will becontextual and fact specific, and the entire record must be considered to determine the cumulative effect of the alleged improprieties”

(para 111) [ 66 ] The comments on prejudice to Mr. Fouani were made in the context of a discrete application to determine whether the draft ASF was subject to settlement privilege. In my October 12 decision, I referred to the decision in R v Nestle Canada Inc , 2015 ONSC 810 at para 47 where the Court there stated “the purpose of settlement privilege is to protect the negotiating parties from prejudice or risk.

If the use of the information will not cause prejudice or risk to the party whose information it is, then the rationale for privilege tends to disappear.” [ 67 ] In assessing whether settlement privilege applied to the draft ASF, I had to consider whether the disclosure of the draft ASF caused prejudice to Mr. Fouani’s legal position in relation to the facts to be admitted or determined in the Gardiner hearing. As the Crown expressly stated that none of the facts in the draft ASF were admitted by Mr.

Fouani, I found it was difficult to see how the disclosure could be prejudicial to that specific issue, i.e., an admission of facts against interest in relation to the offence. [ 68 ] The Defence has misconstrued my decision to mean that I found generally that there can be no type of prejudice to Mr. Fouani. [ 69 ] In its brief the Defence identifies several harms or types of prejudice that the Defence alleges arises from the disclosure of the draft ASF.

Without repeating the entire list compiled by the Defence, and without commenting on the merits of the Defence assertions of prejudice, the accused says the disclosure of the draft ASF has caused: (

i) Costs to the accused of litigating the privilege issue. (ii) Judicial resources expended due to the Crown insisting on litigating the privilege issue. (iii) Delay and uncertainty in the outcome of the hearing (iv) The breakdown in resolution discussions (

v) psychological impact to the accused of having to litigate this issue while the draft ASF was in the hands of the media and potentially subject to publication. (vi) The accused being subpoenaed as a witness to testify in a murder trial knowing that he could be cross-examined on the draft ASF if it were made public. [ 70 ] This kind of prejudice, allegedly arising from the disclosure of the draft ASF, was not the subject of the privilege hearing.

It is open to the accused to argue that the alleged prejudice identified above warrants a stay for abuse of process or is relevant to the application to obtain third party records or to the application to vacate his guilty plea. There has been no hearing on those applications and no findings have been made as to whether Mr. Fouani has suffered prejudice of the kind identified by Mr. Fouani as a consequence of the disclosure of the draft ASF. [ 71 ] In short, the Defence is wrong to suggest that because I found there was a little or no prejudice in relation to what facts are admitted by Mr.

Fouani (none) in relation to the guilty plea, I am close minded about there being other prejudice to Mr. Fouani arising from the disclosure of the draft ASF. [ 72 ] I am satisfied that I have not pre-judged the several other applications of Mr. Fouani or what remedies might be available to Mr. Fouani, as a consequence of the disclosure of the draft ASF.

Whether review of the settlement correspondence and draft ASF gives rise to bias [ 73 ] The Defence argues that as I have seen the settlement correspondence related to the sentencing and the draft ASF I have “seen too much” and it would colour my impartiality in the Gardiner hearing. [ 74 ] The short answer is that Judges regularly are exposed to evidence in voir dires or other proceedings where the evidence is ultimately found inadmissible. As noted in Stinchcombe , Judges are trained and required to disabuse themselves of such evidence.

There is nothing unusual in the circumstances here that would exclude the application of the usual practice that being apprised of inadmissible evidence does not preclude a Judge from continuing to act in the proceeding. [ 75 ] I am satisfied that I can disabuse myself of the settlement correspondence and the draft ASF. Whether the case management direction to commence the Gardiner hearing on November 20, 2023 shows bias [ 76 ] To address this issue it is again necessary to review some of the background that led to the direction to commence the Gardiner hearing. [ 77 ] Mr.

Fouani entered his guilty plea on March 17, 2023. Some of the procedural steps, applications and case management meetings that have arisen since the plea are briefly described above. The

summary does not reflect the extensive time and court resources that have been devoted to this matter. Several of the lengthy case management meetings were squeezed into busy docket courts where there were literally over 100 other matters to be addressed or into sentencing courts where there were 13 or 14 other contested matters that had been pre- booked for that day. Further, to accommodate counsel’s schedules, I cancelled a judgment week and had the judicial scheduler scramble to re-arrange other matters I was assigned to, so that the multiple appearances in this matter could be addressed.

Finding dates when the parties could commence the Gardiner hearing absorbed a massively disproportionate amount of the judicial scheduler’s time, a person who is tasked with scheduling hundreds of matters at any given moment.

[ 78 ] The parties generally have been unable to agree on how to proceed on most issues that have arisen. [ 79 ] There has been an ongoing dispute on the adequacy of Crown disclosure. [ 80 ] With respect to disclosure, the Defence argues that there has been late and incomplete disclosure. There have been technical “hiccups” that has prevented the Defence from reviewing the disclosure. There was inadvertent disclosure by the Crown of solicitor/ client information that required the Defence at one point to return all the disclosure.

The Crown financial expert reports were not delivered until the end of September 2023 which did not allow time for the Defence to obtain its own expert reports prior to the scheduled start of the Gardiner hearing on November 14, 2023. [ 81 ] On the other hand, the Crown says that advance release of some disclosure was made in June 2022. As well, eighty-five percent of all Crown disclosure was made by July 2022. A drive containing all of the Crown disclosure in relation to the draft ASF was provided on March 14, 2023.

The Crown requested return of the disclosure on June14, 2023 (or July 19, 2023, the record is not entirely clear) due to the discovery that an intercept may have included solicitor/client communication in relation to another accused. On August 23, 2023, the Crown provided combined disclosure in relation to the earlier releases after having excised the solicitor/client information related to another accused. The Crown expert reports were provided on September 20 and 25, 2023. [ 82 ] The Crown notes that Mr.

Fouani had sufficient disclosure to enter a guilty plea on March 17, 2023. [ 83 ] At a case management meeting on July 19, 2023, I gave directions with respect to the scheduling of the privilege hearing, the scheduling of the third-party records (O’Connor) application and directed that the Gardiner hearing would commence for 9 days starting November 14, 2023. On July 29, 2023, Defence counsel sought to have another case management hearing to

schedule an additional week in January 2024 for the continuation of the Gardiner hearing to allow time for the preparation of the Defence expert reports. At that point Defence counsel did not take issue with the November dates for the start of the Gardiner hearing. [ 84 ] On September 20, 2023, the Defence filed a Jordon application for a stay of proceedings. [ 85 ] A further case management hearing was scheduled for September 25, 2023.

In advance of that meeting counsel for the Defence sent an email on September 22, 2023, proposing a litigation plan that the November dates would be used for the Defence applications for third party records and for the application for a stay of proceedings. The proposed January dates (5 days) would be used for the Defence Jordon application.

The Defence suggested that the Gardiner hearing now be booked in February -March 2024. [ 86 ] The Defence also indicated that time would be needed for a contemplated application (not yet filed) in relation to lost/destroyed evidence. [ 87 ] At the case management meeting on September 25, 2023, the Defence indicated that given the late and incomplete disclosure and given various technical issues related to reviewing the disclosure, and in view of the other commitments of Defence counsel the accused could not adequately prepare for the Gardiner hearing set to start on November 14, 2023.

The Defence sought to adjourn the Gardiner hearing to March 2024. When asked how this adjournment would affect the Defence Jordan application, Defence counsel said the Jordan application was “going to happen either way”. Later the Defence said it could not waive delay if there was an adjournment, given the late disclosure by the Crown. [ 88 ] The Crown’s position was that the accused had the disclosure relevant to the issues on the Gardiner hearing since at least March 14, 2023.

With respect to the late disclosure of the expert reports in September 2023 the Crown suggested the expert evidence could be deferred to the January 2024 week that had been set aside for the continuation of the Gardiner hearing. The Crown also suggested that some or all its evidence for the sentencing could be proffered by affidavit and then the hearing could be adjourned to allow the Defence additional time to prepare for cross-examination.

The Crown expressed concern about further delay, particularly in light of the Defence Jordan application, and believed the November dates should be used to attenuate delay issues. [ 89 ] Following submissions of counsel, I stated that I had some sympathy for the Defence related to the late disclosure by the Crown and the Gardiner hearing would start on November 20 rather than November 14 to allow the Defence an extra week to prepare. I also asked counsel to address what evidence might be proffered during the week of November 20, and that if they could not agree the matter should be brought back before me.

I suggested that there were perhaps non-contentious issues or witnesses that could be dealt with during the week of November 20. [ 90 ] Since the guilty plea on March 17, 2023, there has been a tension between addressing the various applications filed by the Defence and commencing the sentencing hearing itself. The publication ban, the privilege application and the second recusal application have taken about 8 months to address.

There are at least 3 other outstanding Defence applications and Defence has indicated in either written or oral submissions that further applications are anticipated including an application to remove Crown counsel for misconduct, an application for a remedy for lost/destroyed evidence and an application of a constitutional challenge to the definition of a criminal organization under

section 462.31(a). [ 91 ] As a Case Management Judge, I have a duty to try and manage the proceeding and to balance the fair trial rights of the accused with the need to ensure that proceedings are advanced. (see R v Cody , 2017 SCC 31 paras 36-39 ) The direction that the start of the Gardiner hearing be postponed one week to allow extra time for the Defence to prepare, and the direction that the parties attempt to reach agreement on what evidence might be addressed during the week of November 20, was an effort at trying to strike that balance.

I am satisfied that the directions given in the case management meetings do not amount to bias or a reasonable apprehension of bias. Conclusion [ 92 ] For the foregoing reasons, I find that a reasonable person, properly informed, viewing the matter realistically and practically, and having thought the matter through would not believe that, whether consciously or unconsciously, I could not decide this matter

fairly. [ 93 ] The Defence application for recusal is dismissed. Heard on the 15 th day of November 2023. Dated at the City of Calgary, Alberta this 23 day of November 2023. G.D.M. Stirling A Justice of the Alberta Court of Justice Appearances: S. Tkatch, KC for the Crown Y. Niv for the Accused