R. v. P.R.T.W., 2021 BCPC 374

Citation: R. v. P.R.T.W. 2021 BCPC 374 Date: 20210303 File No: 251819-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.R.T.W. BAN ON PUBLICATION PURSUANT TO S. 517 AND S. 486.4(2) CRIMINAL CODE OF CANADA RULING RE DISQUALIFICATION OF JUDGE OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: A. Ip Counsel for the Defendant: D. Turko, Q.C. and Z. Zwanenburg Place of Hearing: Vancouver , B.C. Dates of Hearing: March 1 and 2, 2021 Date of Judgment: March 3, 2021

[1] THE COURT: The purpose of being here this morning is for me to give my decision on the defence application seeking that Idisqualify myself from continuing to hear this trial. [2] In terms of the nature of application, this is a defence application brought before me on March 1, 2021, during a trial that startedin January 2021. I think there have been approximately seven days of trial. [3] The application is for an order that I disqualify myself from hearing this trial on the basis that I have a reasonable apprehensionof bias against Mr. W.

Defence acknowledges that there is no actual bias on my part but that there is an appearance of bias and a concernfor potential unconscious bias, as set out in

Part 7 of the defence written submissions. [4] This past weekend, it came to defence counsel's attention that I granted an order for substitutional service on Mr. W. in a FamilyLaw Act proceeding on [omitted for publication], at the Robson Square provincial courthouse in British Columbia. Mr. W. and hisformer partner, Ms. S., were parties in that Family Law Act proceeding in which I granted the substitutional service order. She is not acomplainant in this case but both she and Mr. W. are the father of the children that are complainants in this criminal matter. [5] I have no memory of the sub service application.

Counsel kindly provided me with a copy of the documents that were filed onthe sub service application. A copy of the DARS recording of that [omitted for publication] application were listened to in open court theafternoon of March 1, 2021. Neither the documents nor the DARS recording refreshed my memory. [6] Crown advised me that I had heard the sub service application in courtroom 101 at the Robson Square courthouse. The subservice application was on the Family Law Act remand list at Robson Square Provincial Court. I will comment further on the DARSproceeding later in this ruling.

The materials before me in support of the sub service application were a notice of motion filed on [omittedfor publication], coincidentally was [omitted for publication] that this application was brought before me; and an affidavit of attemptedservice by E.B. (“Mr. B.”), process server. [7] Mr. B.’s affidavit had attached to it exhibits consisting of documents he deposed he and his co-worker tried to personally serveMr. W. with on or between January 2, 2019, January 5, 7, and 16, 2019 inclusive. The document service on Mr. W. was not successful,as set out in Mr. B.’s affidavit.

The documents the process servers were unsuccessful serving included a copy of a protection ordergranted to Ms. S. by Judge Meyers on [omitted for publication], and her affidavit filed in support of the application. [8] In terms of the position of the parties, defence submits I should disqualify myself, as there is a reasonable apprehension of biasby me towards Mr. W., due to my hearing the sub service application and making the sub service order. [9] Defence submits the service order was issued on the grounds Mr.

W. was evading service, that the protection order granted byJudge Meyers was obtained in reaction to the criminal charges at bar and contained an affidavit of Ms. S. containing untruthfulallegations and accusations of the process server, which contained allegations of deception and dishonesty, that Mr. W. may beeffectively forced to testify "concerning this court's finding of credibility" contrary to the Charter, and this is set out in paragraph 4 ofdefence submissions. [10] Crown opposes the application for disqualification.

Crown submits that "the defence has not rebutted the strong presumption ofjudicial impartiality that the Court should hear cases assigned to it unless there is a good reason not to and that a reasonable, informedand right minded person viewing this matter realistically and practically would not think that it is more likely than not that the judge,whether consciously or unconsciously, would not decide the case fairly". [11] In terms of the law, I thank both counsel for their fulsome analysis of the law and their written submissions. I have read all thecases provided to me by Crown and defence on this application.

I will not be reviewing each specific case in the materials, although Ihave read them. I request that Madam Clerk place a copy of the indexes of both case books in the court file so if I misquote a cite or donot read the cite, it is clear what cases were referred to. I reserve the right to put in the full cite in the event that these reasons arerequested in writing. [12] The test to determine if there is a reasonable apprehension of bias was initially adapted from the dissent of Justice de Grandpre inCommittee for Justice and Liberty et al. v. Canada National Energy Board et al., (SCC), [1978] 1 SCR 369.

This case iscited in many of the authorities put before me, which include Keller in paragraph 5, Liefke in paragraph 10, Forslund in paragraph 16 andCarlson in paragraph 9. The test states: . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information," . . . In the words of the Court of Appeal....that test is "what would an informed person, viewing the matter realistically and practically- andhaving thought the matter through- conclude.

Would he think that it is more likely than not [the decision maker], whether consciously orunconsciously, would not decide fairly.” [13] The test was refined by the Supreme Court of Canada in R. v. S. (R.D.), (SCC), [1997] 3 SCR 484. The test isset out in the materials before me at R. v. Carlson, 2018 BCPC 209, paragraph 10. The refined S. (R.D.), test states: This test has been adopted and applied for the past two decades.

It contains a two-fold objective element: the person considering thealleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. It goes on to state:

Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions ofintegrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judgesswear to uphold” . . . [14] In Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 SCR 259, the Court considered whether it should vacatea judgment that Justice Binnie, as he then was, had sat on in the Supreme Court of Canada.

He had been the Associate Deputy Ministerfor 15 years and had dealt broadly with the some of the specific issues that were before the Court. In Wewaykum, the Supreme Court ofCanada cites the de Grandpre test in paragraph 76 of its reasons.

The Court states that: . . . standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality. [15] It quotes from what is referred to as the "now classical expression of the reasonable apprehension of bias standard", that: The grounds for this apprehension must, however, be substantial, and I . . . refus[e] to accept the suggestion that the test be related to the“very sensitive or scrupulous conscience”. [16] The Supreme Court of Canada did not vacate its judgment. [17] In R. v.

Adam et al, 2006 BCSC 1540 , [2006] BCJ No. 2719, the Court affirmed the presumption of judicialimpartiality: The burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality, [and it is that party that] . . . mustestablish actual bias or a reasonable apprehension of bias. (Paragraph 32) [18] In R. v. Adam, the trial judge did not recuse himself in regards to allegations that he had made a finding of fact on a voir direbefore the accused had a chance to cross-examine a witness in trial. [19] In R. v. Wolfe, 2005 BCCA 307 and R. v.

Sipes, 2011 BCSC 1499, which are cases before me, the Court suggests that thestandard for apprehension of bias must be a real possibility rather than more likely than not. Where a decision is on the line, i.e., abalance of probabilities of 50/50 or a little over 50, it is best for a judge to err on the side of caution if a risk of bias has beendemonstrated and is before a trial judge rather than appellate court, and this is also set out in R. v. Mohamud, 2010 ONSC 5462 atparagraph 12. [20] A

summary of the principle concerning the reasonable apprehension of bias analysis is set out in Taylor Ventures Ltd. (Trusteeof) v. Taylor, 2005 BCCA 350 at paragraph 7, which states: (

i) a judge's impartiality is presumed; (ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified; (iii) the criterion of disqualification is the reasonable apprehension of bias; (iv) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, andhaving thought the matter through, [would] conclude; (

v) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would thinkthat it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly; (vi) the test requires demonstration of serious grounds on which to base the apprehension; and (vii) each case must be examined contextually and the inquiry is fact-specific. [21] Bias is defined in several of the cases before me. [22] In Wewaykum, paragraph 58, it is stated that bias involves a pre-disposition towards a perspective or result, sways judgment andrenders a judicial officer unable to exercise their impartiality. [23] Bias is also discussed in the R. v.

Carlson. This case states that something more than a mere allegation of bias or apprehension ofsame is required for a judge to disqualify themselves (paragraph 12). At paragraph 16, the Court states that bias is a very seriousallegation and that the finding is not to be made lightly. [24] In Lesiczka v.

Sahota, Sahota, et al., 2007 BCSC 479, a decision of the British Columbia Supreme Court, the Court notes theduty of judges to hear what they are assigned: . . . judges must be careful not to create the impression that they are disqualified when in law they are not. . . . the presumption of impartiality carries considerable weight, and the law should not [be careless in evoking] . . . the possibility of biasin a judge, whose authority depends [on] that presumption. (Paragraphs 20-25) [25] A finding of bias or apprehended bias as indicated in Lesiczka puts in question the integrity of the administration of justice.

Thedanger of judicial recusal or disqualification, where not warranted in law, is discussed, and its whole context is discussed, in paragraph 20

to 25 inclusive of Lesiczka . [ 26 ] I will review cases provided in this hearing, where there was a disqualification or recusal of a judge for apprehension of bias, and then I will review cases where there was no recusal or disqualification. [ 27 ] I have mentioned previously the decision of R. v. Mohamud , 2010 ONSC 5462 .

During a jury trial, it became known that a juror and witness in a second-degree murder trial both worked at the same grocery store, had talked casually together although they worked in different departments, and that one night per week, the juror worked as a supervisor of all employees, including the witness. [ 28 ] It was not alleged that the juror deliberately concealed this knowledge. It was held that the prior association of the juror and witness, however, created a reasonable apprehension of bias and the juror was discharged pursuant to s. 644 of the Criminal Code .

It was held: Members of the public could well find it difficult to understand how a juror could continue to serve on a second degree murder trial when she has known and worked with a Crown witness for seven years, occasionally acting as [her] . . . supervisor at work. (Paragraph 18) [ 29 ] I note that jurors, like judges, sit as triers of fact but jurors do not have the training a judge does, and there is no presumption of impartiality in regards to a juror as there is with a judge. [ 30 ] The next case is R. v. Funes, 2016 ONCA 567 . This is a decision of the Ontario Court of Appeal.

In that case, the trial judge had convicted Mr. Funes of weapons offences. Following the judge's conviction of Mr. Funes, the trial judge realized that he had sat on the preliminary inquiry wherein Mr. Funes was a witness and alleged victim of a shooting. While Mr. Funes had not testified at the preliminary hearing, a wiretap recording containing his first name and recording a conversation was played before this judge at the unrelated preliminary hearing. In convicting Mr.

Funes, the trial judge, where he was the accused, had relied on voice recognition evidence by a police officer who had monitored wiretapped conversations in an unrelated investigation. (Paragraph 9). [ 31 ] Mistrial applications were brought both in the preliminary hearing and in the trial where Mr. Funes was the accused, on the basis of reasonable apprehension of bias resulting from the judge's involvement in both cases.

For reasons unknown the trial judge granted a mistrial in the preliminary hearing to the accused in that case, but not in regards to the Funes trial where he was accused. (paragraphs 14- 15) [ 32 ] It was held by the Ontario Court of Appeal that the trial judge erred in focussing on whether his judgment had in fact been influenced by the preliminary hearing rather than considering whether there was a reasonable apprehension of bias arising from hearing the wiretap recording of Mr.

Funes when he was an alleged victim of a shooting. (Paragraph 16). [ 33 ] The real issue, according to the Court of Appeal, was the impact of the evidence heard during the preliminary inquiry on a central issue at Mr. Funes' trial, which was the identification of Mr. Funes' voice in the wiretap intercepts. The trial judge had directly heard Mr. Funes' voice and first name in the preliminary inquiry. The Court of Appeal notes that this was an exceptional case with unusual circumstances since the specific issue that was determined in Mr. Funes' trial.

It was held that: . . . a reasonable person considering the matter in a fully informed way would apprehend that the trial judge would have been influenced, albeit unconsciously, by the evidence in the preliminary inquiry in his consideration of the appellant’s [Mr. Funes'] guilt in the subject proceedings. [ 34 ] The appeal was allowed. [ 35 ] In terms of cases where there were no disqualifications or recusals, I have reviewed R. v. Forslund and Quinn , [2007] BCSC 338. This was a decision of Mr. Justice Romilly as he then was. Defence counsel had requested that Mr.

Justice Romilly recuse himself from hearing a jury trial based on an apprehension of bias, as he had made a complaint about one of the defence counsel, a junior defence counsel, to the Law Society nine years before. [ 36 ] He could not recall the complaint, but he had a court law officer contact the Law Society to get particulars to refresh his memory, and the nature of the complaint is set out in the reasons. I will not review them.

After canvassing the legal principles, including judicial impartiality and the test for apprehension of bias, he held there was not enough to demonstrate a reasonable apprehension of bias on his part, the grounds for same must be substantial, and in his view were not. In conclusion, he noted the presumption that judges will carry out their oath of office. [ 37 ] I had previously referred to the case of Lesiczka , which is Lesiczka v. Sahota, Sahota, et al. , [2007] BCSC 479.

The case management judge refused to disqualify himself in regards to comments that he made that were alleged to indicate he had made up his mind on an issue of credibility. He was the assigned trial judge if the matter proceeded.

The judge reviewed the legal principles of the law relating to disqualification, including the meanings of bias and impartiality, the test for disqualification and the duty of judges to hear cases assigned to them. [ 38 ] As previously noted, he stated that judges should not hastily recuse themselves when bias is raised due to the danger that by making the allegations by their very nature taint the process and force disqualification of a judge, and the significance of non-binding final findings made in a previous hearing; for example, a voir dire .

The Court held that: . . . even if the comments [in issue] had indicated a determination as to the credibility of the Applicants, that would be only an interim finding relating to the pre-trial applications at issue. The matter of . . . credibility of the Applicants will only be determined on the basis of the evidence before the trier of fact at the actual trial, and only after having heard all of the relevant evidence required to make such a determination.

(Paragraph 47). [39] In R. v. Carlson, 2018 BCPC 209, the Provincial Court judge refused a defence application to recuse herself from a sentencinghearing based on the manner in which it was alleged she displayed her emotions and her mannerisms and conduct toward the defence atthe sentencing hearing.

The legal principles that have been set out in this case were mentioned and reviewed in Carlson. [40] It was held that there is a presumption judges will act according to their oath of office and the Court stated that this presumptioncan only be displaced with cogent evidence that indicates the judge has a reasonable apprehension of bias. None was found and theapplication was refused.

It was held there was no reliable evidentiary foundation to support a reasonable apprehension of bias from theperspective of an informed, reasonable and right-minded person who is fully apprised of the facts. [41] Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 SCR 259 was previously mentioned. This case held that ajudge's earlier participation in a case is not cause for automatic disqualification (paragraph 81). It held that Mr.

Justice Binnie's lack ofrecall was relevant but not a decisive factor as it could affect his decision unconsciously, but a reasonable person viewing factsrealistically would not come to the conclusion that his limited and supervisory role would affect his ability to remain impartial, evenunconsciously. (Paragraph 90). [42] R. v. Adam, [2006] BCJ No. 2710 again was also previously discussed. It concerned an application that the judge recuse himselfbased on his voir dire ruling.

He held that the officer's evidence on a voir dire did not amount to a finding of fact in the trial proper, andagain, the recusal application was denied. [43] In R. v. Wolfe, [2005] BCJ No. 2148 (BCCA), the appellant sought a new trial on the basis that the trial judge erred in doing aninadequate investigation and not discharging a juror who allegedly discussed the case before the jury with a co-worker. The Court statedthat the actual foundation of the appeal was "whether the juror’s conduct demonstrated a reasonable apprehension of bias".

As I statedpreviously, when a juror sits on a case, they sit as a trier of fact. [44] The appeal was dismissed. In concurrent but separate reasons, Mr. Justice Lambert reviewed the de Grandpre test. He stated hisopinion that the "more likely than not" in the de Grandpre test should read "is there a real possibility that a reasonable person properlyinformed and viewing the circumstances realistically and practically could conclude that the decision maker might well be prone tobias". [45] R. v.

Sipes, 2011 BCJ No. 2720 was another British Columbia Supreme Court case involving whether or not a juror had areasonable apprehension of bias and should be discharged. A sheriff had reported to the trial judge that over lunch breaks, one of thejurors had been talking to a defence counsel for one of the accused.

The judge in Sipes considered cases including Wewaykum, Wolfe,Taylor Ventures Limited and stated in regards to the view of Pomerance J. in Mohamud, which I have previously referenced, that a trialjudge may be justified in exercising an extra degree of caution, and erring on the side of that caution, if a risk of bias has beendemonstrated. [46] Mr.

Justice Smart stated: If the application of the proper legal test to a question of bias results in an answer that is close to the line, then the prudent course may beto err on the side of caution. (Paragraph 47). [47] The wording is permissive but not mandatory in his comment, and based on the case law, the onus remains on the applicant toestablish an apprehension of bias or actual bias. [48] In Sipes, despite the fact that the juror was told not to speak to defence counsel based on the preliminary instruction the judgegave to jury members, after his inquiry he accepted that she thought she could speak to defence counsel as long as they did not discussthe case, because this is what the defence counsel told her.

The judge accepted that the juror and defence counsel did not discuss thecase, that the juror took an oath to decide the case fairly and impartially on the evidence and was satisfied that she would render a verdictaccording to the evidence in the trial. (paragraph 59) [49] Mr.

Justice Smart held that on the evidence before him and in the circumstances of the case, he was satisfied there was noreasonable apprehension or real likelihood that the juror would be biased in favour of, or against, any party in the trial despite what thesheriff on what they had observed. [50] The oath of the juror was considered important. The judge found that she would uphold it. A juror does not have the samepresumption of impartiality as a judge, who is trained to be impartial. [51] R. v. Keller, 2020 BCPC 148 is Judge Cutler’s ruling on recusal.

It is the most applicable case on its facts to this application. Hisruling contains a succinct analysis of relevant jurisprudence and judicial bias, and I have reviewed most of these cases. It is also veryclose to the matters before me on this application. [52] He had heard an ex parte application for a protection order by the former domestic partner under the Family Law Act, regardingthe person before him as an accused. The accused's former domestic partner was the complainant in the criminal trial involving adomestic assault allegation heard by Judge Cutler.

She had been the applicant in the family law proceeding and was the complainant inthe criminal proceeding. [53] The accused's application for recusal before Judge Cutler, focussed on the judge hearing the prior application under the FamilyLaw Act. The accused submitted that Judge Cutler had heard submissions by the complainant relating to the accused's honesty andcredibility in the family law proceeding and had made an order adverse to the accused, as he had granted an ex parte order against theaccused when as a respondent in the family law matter.

It was submitted that Judge Cutler's "ability to adjudicate" the criminal trial in an

impartial manner was compromised, especially in regards to issues relating to the accused's credibility, which might need to be determined by Judge Cutler. (Paragraph 3.) [ 54 ] The date of the accused's alleged assault on the complainant in the criminal matter was August 12, 2019.

It was on September 20, 2019, that the woman who was the applicant in family law matter, and the complainant in the later criminal matter, brought a without notice application, known as an ex parte order, seeking the protection order under the Family Law Act against her former partner. [ 55 ] During the ex parte application, the applicant made statements in court before Judge Cutler alleging numerous instances of verbal and physical abuse by her former partner who was then the respondent and later the accused. [ 56 ] In the ex parte application before Judge Cutler, she had said that her former partner had lied to the courts and that the police had attended the residence every day since he had returned to the residence. [ 57 ] A Protection Order was granted by Judge Cutler and then he commenced a criminal trial with the same parties in 2020.

The Protection Order Judge Cutler granted included a No Contact Order with the complainant and that he could not attend at her residence, workplace or school, and this Protection Order was to be in place until both parties had the opportunity to appear before Judge Cutler approximately one week later so both sides could be heard. [ 58 ] Under the Family Law Act , there is a

section where if there is an allegation of family violence, the other party need not be served but generally, a date is then set to hear both sides. Judge Cutler in the criminal matter states that on May 28, 2020, in the middle of the criminal trial, the accused applied to have him recused for reasonable apprehension of bias. [ 59 ] Judge Cutler had been provided with an affidavit and heard the applicant give evidence in court on her application for the ex parte order under the FLA. He also heard her testimony subsequently as a complainant in the criminal trial before Judge Cutler.

This is the same position that Judge Meyers, who granted the Protection Order in favour of Ms. S. would have been in, had he been the trial judge in this case. [ 60 ] Judge Cutler granted the ex parte order after hearing from the applicant and reading an affidavit from the applicant that attacked both the credibility and character of Mr. Keller. [ 61 ] Judge Cutler clearly describes the nature of a Without Notice Application in a family matter and distinguished it from most interim orders.

He stated ex parte orders are granted on an "interim-interim basis", that they are often set aside or varied once the judge hears both parties and that on such application: The court makes no findings regarding the substantive issues, the merits of the parties' positions, or their credibility. (Paragraph 13). [ 62 ] He stated that where a Court issues an ex parte order, it is: . . . not choosing sides or preferring one position over another as [the court] . . . is only hearing one side of the story. (Paragraph 13). [ 63 ] Judge Cutler follows principles considered in other decisions in not recusing himself for apprehension of bias. [ 64 ] These include the presumption that judges will comply with their oath of office. [ 65 ] Further, that a judge frequently hears prejudicial information about an accused but rather than disqualify or recuse themselves, judges consistent with their training and oath of office reject such information and consider only the merits of the matter before them. [ 66 ] It is inherent in the role of a judge that a judge does not favour one side over the other and makes decisions only on admissible evidence in the matter before them.

Judges frequently disabuse their minds of inadmissible evidence. This is done on an almost daily basis in these courts in voir dire applications on whether or not a statement is admissible, whether or not something is admissible as hearsay or not, applications regarding informants and disclosure applications. [ 67 ] I note that by their very nature, the Information before a trial judge contains allegations of offences committed by accuseds. A judge reads the Information before hearing evidence.

No judge would ever draw an inference against an accused based on allegations in an information, regardless of how egregious they might be.

It is a hallmark of judicial training and practice that a judge ignores information that is not admissible. [ 68 ] Another example is the exclusion of relevant evidence under s. 24(2) of the Charter because although it is clear, for example, that someone may have shot someone with a gun, if the police or other State actors act contrary to the Charter against that individual, the evidence is excluded, as to admit it would bring the administration of justice into disrepute. [ 69 ] Judge Cutler reviews the principle and case law that supports that even where a judge has made a prior adverse ruling to an accused in a prior proceeding, only admissible evidence before the Court in the specific proceeding is admissible and considered, as stated in paragraphs 21 to 24.

He cites the case of R. v. James , 2000 BCCA 616 , wherein the Court of Appeal stated: Nor does the bare fact that the accused was convicted and sentenced by this same judge on more than one past occasion create a reasonable apprehension of bias. It is inevitable that persons will appear before trial judges with whom they have had [prior] judicial contact. (Paragraph 19).

[70] He then cites R. v. Novak, (BC CA), 59 BCAC 152, British Columbia Court of Appeal, wherein it was heldthe trial judge, who ruled adversely on an accused's credibility in back-to-back criminal trials did not have a reasonable apprehension ofbias. It was held more is required to establish that a judge has a predisposition against the accused being found credible in the secondtrial. The Court of Appeal stated: Judges are routinely called upon to disabuse their minds of evidence which they have heard but which, as a matter of law, is notadmissible in the trial before them.

It is fundamental to their role to decide the case only on the evidence properly admissible [beforethem] in that case. (Paragraphs 7 and 8). [71] Several other cases in support of this principle are set out in R. v. Keller at paragraphs 25-28. Included is the decision of R. v.Robert (2000), (ON CA), 143 C.C.C. (3d) 330 (ONCA). This case involved an unsuccessful application regarding theapprehension of bias in a criminal proceeding where the same judge had been the judge in a family proceeding involving the accused andhis wife, who had bitterly fought matrimonial litigation.

In the family matter, the wife had presented affidavits containing seriousallegations of wrongdoing by the person who was now the accused in a criminal arson trial. The affidavits were not cross-examined onand no oral evidence was presented in the family matter. [72] The trial judge, when on the family application, adjourned the matter on terms, including that the father's access be superviseduntil further order of the Court. So it was submitted that this indicated a finding of bias against the former husband.

In Judge Cutler'ssummation of his analysis, he states: . . . a judge presiding in a criminal trial who has in prior proceedings heard information prejudicial to the accused, including attacks onthe accused's credibility and character, and issued an order adverse to the accused will not result in a reasonable apprehension of bias.Judges frequently find themselves presiding at criminal trials where they have earlier ruled . . . against the accused, including on issuesof credibility, and/or have heard adverse information about an accused either during . . . trial or in an earlier proceeding that isinadmissible in the criminal trial.

In such situations, the judges are presumed and expected to disabuse their minds of such informationand render a verdict based on the relevant admissible evidence presented during the criminal trial. (Paragraph 30). [73] In regards to the analysis of the law on the application before me, the application for sub service that I heard two years ago dealtonly with whether or not I should grant an application for substitutional service on Mr. W. pursuant to Rule 9(7) of the Family Law Act.This is a procedural rule.

Its purpose is to allow a proceeding to advance where actual service is required but for a reason stated in Rule9(7), service has not been effected. The application, by its very nature, is ex parte. A judge does not choose sides or prefer one party overthe other. [74] The only evidence that bears on the matter in this case was the affidavit of the process server.

My decision turned on whether ornot the process server's affidavit met the requirements in Rule 9(7) of the Family Law Act, which provides alternatives to personalservice. [75] A judge may order a method other than personal service under Rule 9(7) where a person that is to be served cannot be foundafter diligent search, is evading service, or is temporarily out of British Columbia. The wording specifically says a judge may:

a) order that the document be served by a peace officer if the judge is satisfied that such an order is appropriate in the circumstances; or

b) make an order granting permission to use a different method of service specified in the order if the judge is satisfied that the person tobe served (

i) cannot be found after a diligent search (ii) is evading service of the documents, or (iii) is temporarily outside of B.C. [76] From the DARS that was heard in court, I suggested that service on Mr. W. be made by priority post plus email rather thanhaving the sheriff serve, as given the process servers were unable to find Mr. W., the sheriffs might not be able to. [77] Based on the process server's affidavit, Mr. W. was not outside of B.C. In ‘evading service’ of the documents, on the DARSrecording of [omitted for publication], I stated that it was the view of the process server Mr. W. was evading service. Mr.

B, who was theprocess server, deposed in his affidavit that attempts were made to personally serve Mr. W. at his residence and at his place ofemployment. [78] Mr. B deposed in paragraphs 6 and 7 that his co-worker attended at Mr. W.'s place of work but staff were "unable to get him tocome down to reception at the time; they suggested he return at 2:30" and it was deposed that at 12:25 staff advised Mr. Naylor, the co-worker of Mr. B., that Mr.

W. had already left and that they were under the impression he had bolted because he knew that he was goingto be served. [79] The sub service application was heard on the family law remand list in courtroom 101 at [omitted for publication]. There areusually upwards of 50 matters on that list. It is a busy list. Most applications are heard within five to 10 minutes and evidence is notcalled. Basically, any matter that requires a substantive finding is not in that court. The DARS recording of the sub service applicationindicates the whole application and granting of the order took approximately five minutes.

The majority of time was spent on correctingdates and obtaining contact information for the order, which I did grant. Ms. S. was not present. The DARS recording indicates hercounsel appeared as agent.

[ 80 ] On the DARS, I did state that I had read the materials. I referenced the process server and his affidavit, stated it was his opinion Mr. W. was evading service and I granted a substitutional service by priority post and email. I said that as the process server had been unable to find Mr. W., the sheriffs might have difficulty as well. I did not make a finding under which specific part of the rule I granted the substitutional service order. It made no sense for me to have the sheriff’s serve as they might not be able to find him.

The rule also uses the phrase ‘evading service.’ [ 81 ] I reiterate that an application for substitutional service is procedural. On the application listened to on DARS, no finding of credibility or character was made. No evidence was heard. The order was made on the basis of the affidavit of Mr. B. No mention was made by counsel or myself about any allegations against Mr.

W., according to the DARS recording. [ 82 ] As I have no recall of this application, I will state my usual practice on sub service applications which take place in busy remand court, is to read only materials on attempts at service, the type of documents the process server is attempting to serve, and their opinion on why service has not been effected. The contents of the documents the process server is trying to serve are not relevant. [ 83 ] There was no discussion on the DARS about the substantive claims Ms. S. was advancing or of Judge Meyers' order. Ms. S. was not present in the court.

I reject that I have made any finding of credibility or character regarding Mr. W. The application consisted of a notice of motion and Mr. B.’s affidavit. Paragraph 2 of the affidavit set out what documents the process server was trying to serve, and it sets out unsuccessful efforts of service on Mr. W. The gist of the affidavit was that Mr. W. was at least at his place of work. There was some examples in Mr. B.’s affidavit that he had gone to Mr. W.’s house and lights were off and there were cars in the driveway. [ 84 ] I did not state under which

section the order was made, but a I had mentioned in the DARS recording, that I did not think it appropriate to have the sheriff serve as the process server could not find him. I did cite Mr. B.’s opinion that Mr. W. was evading service. [ 85 ] I reject the submission that the use of the words evading service in the Rule amounts to a finding of credibility or bad character on the part of Mr. W. That are the words used in the Rule.

Whatever the process server's opinion, it is not evidence on any substantive matter. [ 86 ] The nature of an order of substitutional service is that the Court does not hear from the party who has not been served. Even if one accepts that the phrase in the Rule, evading service , indicates an intention not to be served, from what was before me I would have no reason to know why this was and I would not speculate on whether it was due to, for example, fear, stress, or any other reason. I also do not read the process server's affidavit and the recitation of triple hearsay that Mr. W.

"had bolted because he knew he was going to be served" as having anything to do with Mr. W.'s character or credibility. Even if it were correct that he had done this, I have no reason to know nor would I speculate as to why this occurred. [ 87 ] As stated, I have no memory of the application or the documents that were before me, and when I reviewed them in this proceeding, my memory was not refreshed. Again, it is my practice not to read the actual documents that the process server is trying to serve.

It is not relevant and there is certainly no time in family remand court. [ 88 ] Even if I had read the documents attached to Mr. B.’s affidavit, cases cited support that judges are presumed not to consider such documents or evidence in any other proceeding that comes before them. The protection order Judge Meyers made was made ex parte . Mr. W. did not have the opportunity to give evidence or provide in any way his side of what had transpired. He did not have an opportunity to cross-examine Ms. S.

Nothing on the sub service application would be used by any judge to draw an inference on credibility or character in regards to either party. It is the duty of a judge to remain impartial and only consider relevant evidence on a matter before them. [ 89 ] This application is based on much less than applications where there were actual submissions made against an opposing party's credibility or character in family proceedings where the same judge dealt with the parties in further proceedings, i.e., Keller and Robertson . This is not a case where I have made any finding of credibility or bad character against Mr.

W. This would be inconsistent with my duty to be impartial and the oath that I took as a judge. [ 90 ] Case law supports that even where a judge has heard prior prejudicial information about an accused in other proceedings, including where a judge has made adverse findings twice in regards to the same accused in criminal trials, this does not in itself result in a reasonable apprehension of bias.

The strong presumption of a judicial impartibility an applicant must overcome to establish a reasonable apprehension of bias has not been met in this case. [ 91 ] As stated in the case law, the grounds for apprehension must be substantial. There must be a real likelihood or bias for an application like this to succeed. Speculation or a test related to the "very sensitive or scrupulous conscience" is not accepted. The context of the sub service application, again, was procedural. There was no consideration of the substantive relief sought by Ms.

S. in the FLA proceeding. [ 92 ] Judges in the Vancouver region frequently sit on both family and criminal matters. In fact, the judges at 222 Main Street and Robson rotate between the two courts for a minimum of three months a year. Some judges sit equally at Robson Square and 222 Main Street court. [ 93 ] I note the judicial commentary in Lesiczka at paragraphs 20 to 25 about a judge's duty to hear assigned cases and the importance of judges not hastily recusing themselves when the matter of bias is raised.

The Court comments on the dangerous precedent this would set in both the disruption of the judicial system and bringing the administration of justice into disrepute. [ 94 ] In conclusion, the applicant has not met the onus of establishing that a reasonable apprehension of bias would be found by right- minded people fully informed of all the facts. The defence application that I disqualify myself from continuing to hear this trial is dismissed. (RULING CONCLUDED)