R. v. Berg, 2019 BCPC 189

Citation: R. v. Berg 2019 BCPC 189 Date: 20190819 File No: 25209-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEWART KEVIN BERG AND FRANK EDWARD DONECZ RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: McDonald, G. Appearing on their own behalf: Berg, S.K. and Donecz, F.E. Place of Hearing: Smithers , B.C. Date of Hearing: August 12, 19, 2019 Date of Judgment: August 19, 2019

Introduction [ 1 ] On August 12, 2019, the Crown applied for a mistrial on the basis that I had “prejudged and/or speculated on the meaning and uses of the evidence that had been led.” The Crown refers to my comments accompanying my decision on August 1, 2019, to conduct a Vukelich hearing with respect to the accused’s complaints about the integrity and fairness of the investigation and prosecution of the charges against them.

Their complaints potentially relate to a breach of their rights as protected by s. 7 of the Charter of Rights and Freedoms. [ 2 ] Early in the proceedings Judge Jackson granted the Crown’s application to disqualify the accused’s counsel from acting for either of them. At the disqualification hearing the accused’s legal counsel alleged the investigation of the offences was “staggeringly incompetent” and their prosecution improper. Both accused proceeded to trial unrepresented by counsel.

The accused alleged the Crown misstated the evidence against them at the disqualification hearing and the investigation was “terribly poor.” [ 3 ] The Crown continues to oppose the Court conducting a Vukelich hearing with respect to the accused’s complaints. It now seeks a mistrial on the basis that there is a reasonable apprehension of bias to the prejudice of the Crown. Issue: [ 4 ] The issue before the Court is whether I ought to declare a mistrial and recuse myself as the trial judge on the basis of a reasonable apprehension of bias. [ 5 ] On the morning of August 12, 2019, Mr.

McDonald for the Crown, and the accused on their own behalf, appeared before me at a pre-trial conference in which the Crown first brought this application for a mistrial. I declined to hear the Crown’s application at that time given the Court and the accused had just received Mr. McDonald’s application materials that morning, the application had not been scheduled for a hearing and there was no Court time to hear it. I referred the matter to the Judicial Case Manager to

schedule a hearing at some later date. The Crown’s application was adjourned for hearing to August 19, 2019. Procedural history and context [ 6 ] By way of Information 25209-1, Stewart Kevin Berg and Frank Edward Donecz are jointly charged with two offences under the Wildlife Act, RSBC 1996, c. 488 . Count 1 charges them with hunting without reasonable consideration for the lives, safety, or property of other persons contrary to s. 28 of the Wildlife Act .

Count 2 charges them with possessing dead wildlife, namely a grizzly bear, without authorization under a licence or permit or as provided by regulation contrary to s. 33(2) of the Wildlife Act . Both offences are alleged to have occurred in the morning of September 19, 2017, at or near the Fulton River Project where the Federal Department of Oceans and Fisheries operates two spawning channels to enhance sockeye salmon in Babine Lake, near Granisle, BC. [ 7 ] The Information was sworn on September 25, 2018, over a year after the offence date. On September 25, 2018, the Justice of the Peace issued a Summons to Mr.

Berg and Mr. Doncez to appear in Smithers Provincial Court on Information 25209-1 on December 4, 2018. On November 1, 2018, Conservation Officer Glen Small completed a Certificate of Service stating that because Mr. Donecz could not be conveniently found he served the summons by leaving it with Janice Pabular Donecz, on November 1, 2018, at 16:22 in Terrace, BC. On November 20, 2018, Conservation Officer Glen Small completed a Certificate of Service stating he served Mr. Berg the summons personally on November 20, 2018, at 15:00, in Topley, BC. [ 8 ] On November 16, 2018, Glenford E.

Greene filed a Counsel designation notice for Mr. Donecz and on November 27, 2018, Mr. Greene filed a counsel designation notice for Mr. Berg. [ 9 ] At the First Appearance on December 4, 2018, Mr. Greene appeared as counsel and agent on behalf of both accused in Smithers Provincial Court. Ms. Purewal acted on behalf of the Crown. Mr. Greene confirmed he had received disclosure from the Crown and waived reading of the information and entered pleas of not guilty on behalf of both accused to both counts on the Information.

He confirmed his intention to act on behalf of both accused and would deal with any conflict at the time it arose. The matter was adjourned to December 18, 2018, to fix a date for trial. [ 10 ] Since the December 4, 2018 first appearance Mr. McDonald has prosecuted the accused on behalf of the Crown. On December 21, 2018, Mr. McDonald completed an Application to a Judge to have Mr. Greene removed as counsel of record for both accused on the basis that he was in an actual conflict of interest. The Crown stated at para. 5 of that application: 5. In addition, the Crown, prior to Mr.

Greene becoming counsel for both accused, has [given] [Initial Sentencing Positions] in which the Crown offered to consider a stay as against Mr. Donecz if Mr. Berg is prepared to take responsibility for not properly supervising his assistant guide. In the Crown’s view all of these offences occurred due to Mr. Berg’s failure to properly supervise and direct his assistant guide. Mr.

Greene cannot possibly negotiate a settlement on behalf of both accused in these circumstances. [ 11 ] The Crown’s application (filed on January 3, 2019) came before Judge Jackson on January 4, 2019 for hearing (the “Disqualification Hearing”). It proceeded on submissions of counsel except for two letters of Acknowledgement and Confirmation of Legal Advice from the accused marked as Exhibits 1 and 2. [ 12 ] On Exhibit 1, Mr. Berg states in a letter dated December 23, 2018: I, Stewart Berg, a Guide Outfitter, confirm that I am the person who is charged under Information in File No. 25209 in the Smithers Registry.

I acknowledge that I am co-accused as a result of the decision of the Crown Counsel to charge me on an information that charged me with my employee and guide, Frank Donecz.

I believe the Crown Counsel did that in an attempt to extort evidence from me or Frank Donecz to testify against each other or otherwise hurt each other. After Mr. Geoffrey McDonald corresponded to our lawyer, Glen Greene about the potential for the conflict of interest, I met alone with Mr. Greene to discuss the legal implications and evidence of both Frank and I and the implications of Mr. Greene continuing to be our joint lawyer on this prosecution. We then met with Frank where Mr. Greene discussed the same issues with Frank. As a result of these discussions, I wish to continue to have Mr.

Greene represent me on this matter jointly with Frank Donecz and I believe that I have been fully advised the available defences to this improper prosecution of Frank and I. I believe this prosecution and the application of Mr. McDonald arise out of Mr. McDonald’s continued vendetta against myself. Mr. McDonald has prosecuted me on approximately 50 previous charges in the past 10 years with the last occasion being in the past summer of 2018 where Mr. Greene represented me and I was found not guilty at a trial that involved 8 different charges. [ 13 ] The 2018 matter to which Mr.

Berg refers was Smithers Court file 24697-1, which went to trial before Judge Whyte in Smithers Provincial Court on July 24, 25, and 26, 2018. Mr. Greene represented Mr. Berg at that time. Mr. McDonald represented the Crown. The trial concluded on July 26, 2018, and Judge Whyte reserved his decision. On August 15, 2018, Judge Whyte acquitted Mr. Berg of all offences charged on Information 24697-1. [ 14 ] Exhibit 2, is a letter of Acknowledgement and Confirmation of Legal Advice dated January 3, 2019, in which Mr.

Donecz states: I, Frank Donecz, an Assistant Guide Outfitter, confirm that I am the person who is charged under Information in File No. 25209 in the Smithers Registry. I acknowledge that I am co-accused as a result of the decision of the Crown Counsel to charge my employer, Stewart Berg. I believe the Crown Counsel did that in an attempt to extort evidence from me or Stewart Berg to testify against each other or otherwise hurt each other. After Mr. Geoffrey McDonald corresponded to our lawyer, Glen Greene about the potential for the conflict of interest, I met with Mr.

Greene and Stewart to discuss the legal implications and evidence of both Stewart and I and the implications of Mr. Greene continuing to be our joint lawyer on this prosecution. As a result of these discussions, I wish to continue to have Mr. Greene represent me on this matter jointly with Stewart Berg and I believe that I have been fully advised the available defences to this improper prosecution of Stewart and I. I believe that this prosecution and the application of Mr. McDonald arise out of Mr.

McDonald’s continued vendetta against Stewart Berg. [ 15 ] In his January 17, 2019 Reasons for Judgement (“Judge Jackson’s RFJ”) Judge Jackson set out the Crown and Defence’s submissions on the evidence and legal argument. Judge Jackson states at paras. 12 and 13: [12] The crown represented as follows: That the accused Donecz was working as an assistant guide for Mr. Berg. The Crown continued that Mr.

Donecz took a client to an area called the Fulton Channel which is Federal government private property; that area contains a salmon ladder and is posted as a no shooting area and also posted as an area where unauthorized vehicles are not supposed to go. The Crown added that the client was an Italian speaker whose English was not very good. The Crown stated that they observed a Grizzly bear in the middle of the channel; that the client “got out” and Mr. Donecz told him not to shoot.

The Crown continued that the client shot the Grizzly bear several times and it was dead in the middle of the channel. [13] The crown counsel stated that the evidence of the crown includes the observations of a Federal government employee who saw the client, Mr. Donecz, and another employee of Mr. Berg attempting to retrieve the bear from the water. [ 16 ] At the Disqualification Hearing, Mr. Greene took issue with some of the Crown’s submissions, arguing they were “completely improper.” In particular Mr. Greene stated: a. Mr.

Donecz did not go to Fulton River spawning channel with the client to hunt, but to look for a bear: Judge Jackson’s RFJ para.27; b. The person who shot the bear was not Italian, but Spanish. The Spaniard killed the bear with one shot and Mr. Donecz’s says that he was surprised: Judge Jackson’s RFJ, para. 24; and c. There was no evidence the area where the bear was shot (the Fulton River) was private property: Judge Jackson’s RFJ, para. 29. [ 17 ] Mr. Greene made no suggestion the identity of either accused was in issue. Mr. Greene told Judge Jackson Mr. Berg had hired Mr.

Donecz to be his assistant guide for the day in question: Judge Jackson’s RFJ, para.34. Mr. Greene represented the accused had a number of common defences, one being no offence was committed. He asserted the Crown was attempting to force the co-accused to testify against one another contrary to their right to silence. Judge Jackson wrote at paras. 29 and 30 of his RFJ: [29] Mr. Greene stated that if the bear was not illegally shot that is a defence for both Mr. Donecz and Mr. Berg and there are several issues in the disclosure that give rise to common defences.

These include that there is no evidence that the location is private property; the guides took the position that the river is not part of anyone’s property; the location was at the time was not properly posted. Mr. Greene added that this application has thus forced him to reveal one of the defences. [30] Mr. Greene stated that central to the common defence is the evidence from both accused, both of whom it is anticipated will testify.

[ 18 ] Another common defence Mr. Greene identified in the Disqualification Hearing was the impropriety of the investigation into the offences and the subsequent prosecution based on that investigation. Judge Jackson states at para. 37 of his RFJ: [37] Mr. Greene stated that he could reveal one common defence, which is that the investigation is “staggeringly incompetent”. He continued to state that this prosecution is an improper attempt to “extort” a financial penalty from Mr. Berg. [ 19 ] In his RFJ, Judge Jackson said there was no real conflict and Mr. Greene acted properly throughout. Mr.

Greene’s dual representation of the accused, however, created a “substantial risk of potential mischief later on.” Ultimately, Judge Jackson disqualified Mr. Greene from representing either accused. [ 20 ] The matter before Judge Jackson was a Crown application to have Mr. Greene removed as counsel for both of the accused. It was not a pre-trial Charter application and Judge Jackson did not address the accused’s complaints about the integrity or fairness of the investigation or the prosecution. Clearly, Judge Jackson did not consider the inaccuracies Mr.

Greene identified to be fatal to the Crown’s application to have Mr. Greene disqualified as legal counsel. [ 21 ] In his application for a mistrial, Mr. McDonald attached a letter Mr. Berg sent him on March 15, 2019, in which he states: I am very disappointed that my constitutional right to an attorney of my choice has been removed in court file 25209. If there is a conflict of interest between Mr. Donecz and I, therefore we should have separate trials and separate [trial] dates. With Mr. Glen Greene no longer being able to represent me in the court room I have decided to represent myself. . . .

I will also prove I did not send Mr. Donecz to hunt Fulton River, in fact I sent him to a different location on Babine Lake by boat. There is no discrepancy. [ 22 ] On March 26, 2019, the Crown and the accused scheduled a five day trial commencing on July 30, 2019, and continuing on July 31, August 1, August 2, August 12, and August 13, 2019. [ 23 ] On July 30, 2019, the matter came before me for the first day of trial. Unfortunately, the crowded court list did not allow the trial to proceed at that time and the trial was adjourned until July 31, 2019. [ 24 ] On July 31, 2019, Mr. Berg and Mr.

Donecz proceeded to trial self-represented. Mr. McDonald appeared on behalf of the Crown. July 31, 2019 [ 25 ] At the outset of the trial on July 31, 2019, both accused indicated their intention to represent themselves at trial. I gave them a copy of the Wildlife Act and s. 98 of the Offence Act. I endeavoured to provide them with information and direction on basic substantive and procedural matters. As I embarked on this process, Mr. Greene entered the court room and quietly sat in the back row of the public gallery.

He was dressed in Supreme Court attire and was merely watching the proceedings pending the commencement of his Supreme Court case in the adjacent courtroom. Other than Mr. Greene, the only persons in the Courtroom were the parties and court staff. [ 26 ] Mr. Greene made no attempt to speak to the accused or address the court. As I was explaining the meaning of vicarious liability to the accused, Mr. McDonald stood up and asked I exclude Mr. Greene from the court room. He stated: MR. MCDONALD: Your Honour, I apologize for interrupting further.

There is a lawyer present who was disqualified from acting in this matter . . . former counsel for both men, and . . . I do believe that that particular lawyer should not be present for this matter and should not be in the courtroom, if that is why he's here. And I would ask that he be excluded from the courtroom. THE COURT: Well, it's a public hearing . . . MR. MCDONALD: He has been disqualified from acting.

I understand . . .I would not want anyone to have the impression that he was trying to, indirectly, in the background, act or speak in this particular matter, and he should not be present for this particular trial as an officer of the court, given Judge Jackson's order. [ 27 ] Mr. Greene responded that despite Judge Jackson’s order, he remained a citizen and was just observing the proceedings. I refused the Crown’s request, noting that disqualifying him from representing the accused in this matter did not work to bar Mr.

Greene from entering the courtroom. [ 28 ] Prior to the Crown calling evidence on July 31, 2019, Mr. Berg advised the Court there were some errors in the information Mr. McDonald gave Judge Jackson in its submissions to make his decision to disqualify Mr. Greene from representing him and Mr. Donecz. Mr. Berg said: THE ACCUSED BERG: And there was some errors given by the Crown to Judge Jackson, on the information, in order to make his judgment -- judgment on this. . . And there was . . . inaccuracies in the -- in the Statement . . . given by Mr. McDonald. . . .

THE ACCUSED BERG: It's just I thought I should – I would clear it up with the court that the . . . the things that he said, it's just so inaccurate that I don't even know how . . . how anybody could have said some of this stuff. . . .

Cause it shows a really poor . . . poor investigation, terribly poor investigation. It's just so inaccurate. . . . THE ACCUSED BERG: Yeah, I just thought it'd be nice to -- to point out the accurac[ies] -- you know, to say, you know, it should'vebeen said differently. There's -- there's -- it was just so inaccurate, right? . . . THE ACCUSED BERG: It was just the information that was provided to him was inaccurate. [29] I advised Mr. Berg I could not sit on appeal of Judge Jackson’s decision. Mr.

Berg responded, “So for now it has no relevance,then?” As the Disqualification Hearing had been argued based solely on submissions of counsel, I advised Mr. Berg that as the trialjudge I would not be influenced by any of Judge Jackson’s findings of fact. At that time I did not consider the more systemic issues raisedby the accused at the Disqualification Hearing relating to the integrity of the investigation and fairness of the prosecution. I did not inviteMr. Berg to identify what he considered misinformation or particularize his concerns. [30] Mr.

McDonald gave a fairly comprehensive opening on behalf of the Crown. He advised the Crown’s first witness would beMr. Loosmore. He stated: Mr. Loosmore will testify that at the time he was the channel technician for the Fulton River salmon ladders. And I expect he will giveevidence about September 19th, 2017, that he came 25 to eight and observed two pickup trucks in a no-vehicle area, loading a grizzlybear from the river. He spoke briefly to the men. One -- one of the three identified themselves as -- Glen . . . was the primary spokesman,was wearing a guide outfitter hat. [31] Mr.

McDonald also advised the Court the Crown’s case against Mr. Donecz was based primarily on Mr. Donecz’s warned out-of-custody statements to the Conservation Officers. One statement was made to CO Knibbs and CO Small on September 23, 2017, andanother to Sergeant Nixon on December 18, 2017. The Crown’s case against Mr. Berg, who was not present when the bear was shot,was based on his alleged vicarious liability under s. 104 of the Wildlife Act for the acts of his assistant guide, Mr. Donecz. [32] At the commencement of the trial neither the Crown nor the accused identified any potential Charter issues.

Of course, theCourt does not expect that of a self-represented accused. The only thing the accused expressed exception to in Mr. McDonald’s openingwas his representation there were salmon ladders in the vicinity where the grizzly was killed. [33] On July 31, 2019, the Crown called its first witness, Thomas Loosmore, an employee of Fisheries and Oceans who worked atthe Fulton River spawning channel near Granisle, BC. At the conclusion of Mr. Loosmore’s oral testimony, I reflected on his evidence inthe context of Mr. Berg’s complaint about the Crown submissions made to the Court during the Disqualification Hearing.

I reviewedJudge Jackson’s RFJ and noted there was possibly a couple of submissions to which the accused may have been referring to as“inaccuracies.” Specifically, I noted: a. para. 13 of Judge Jackson’s RFJ suggests the Federal government employee, who I took to be Mr. Loosmore, saw Mr. Doneczattempting to retrieve the bear from the river. Mr. Loosmore could not identify Mr. Donecz at trial. I did not consider it critical because Iunderstood Mr.

Donecz’s presence at the kill site was not in issue; b. para. 12 of Judge Jackson’s decision states the “Crown continued that the client shot the Grizzly bear several times.” Theaccused contended the grizzly was shot once as Mr. Greene stated in the Disqualification Hearing. Mr. Loosmore did not testify that heheard any shots, only that he spoke to some unnamed member of the public who said he heard a shot. The Crown adduced this evidencenot for the truth of its contents, but only for narrative purposes; c. Mr.

McDonald asserted in the Disqualification Hearing, as he did in his opening at trial, the offence occurred in an area thatcontained a salmon ladder. Mr. Loosmore referred only to spawning channels. [34] Upon reviewing Judge Jackson’s RFJ, I noted Mr. Greene, who was the accused’s counsel at the time, told the Court one oftheir defences was the investigation was incompetent and the prosecution improper. By the end of the first day of trial, all I had heard onthis issue was Mr. Berg’s unparticularized complaints that Mr.

McDonald had presented the Court with inaccurate information at theDisqualification Hearing and the investigation was “terribly poor.” I did not know whether all or any of these alleged inaccuracies hadbeen brought to Judge Jackson’s attention. I did not know whether the accused’s complaints were principally about Mr. McDonald’ssubmissions to Judge Jackson or the Conservation Officer’s investigation, or both.

Moreover, I did not know if these allegations relatedto the accused’s earlier criticisms about the integrity and fairness of the investigation and prosecution. [35] I am acutely aware as a judge presiding over a trial involving two self-represented accused I have a duty to ensure they receive afair trial, which includes providing the accused with reasonable assistance to ensure their defence or any defence that may be disclosedduring the course of the proceedings is brought out with full force and effect.

I also have a duty to raise the issue of a Charter breach ifthere is clear evidence pointing to such an event. (See R. v. Wyatt, 2018 BCCA 162 ; R. v. Moghaddam, 2006 BCCA 136; R. v. B.K.S., (BCCA). [36] Although neither Mr. Greene nor the accused framed the issue as such, I considered whether their complaints about the integrityand fairness of the investigation and prosecution engaged the accused’s s. 7 Charter rights.

Section 7 states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [37] The analytical framework for assessing s. 7 Charter breaches requires the Court to first determine whether the accused’s s. 7right has been engaged and deprived by the state, and if so, whether the deprivation was in accordance with the principles of fundamental

justice. An accused can establish a breach of s. 7 and seek a remedy under s. 24(2) of the Charter if the deprivation was not inaccordance with the principles of fundamental justice. Generally, in criminal and quasi-criminal cases, an accused’s s. 7 right to liberty isengaged as soon as he or she is charged. [38] The defence materials filed and submissions made in the Disqualification Hearing clearly allege this prosecution was Mr.McDonald’s personal vendetta against Mr. Berg. Mr. Greene’s description of the investigation was that it was “staggeringlyincompetent” and the prosecution “improper.” Mr.

Greene’s submissions suggest he had mapped out an array of defences for theaccused. From what I have seen thus far, the accused, who are now self-represented, are struggling with the complex cartography. [39] Mr. Berg’s complaints as to the inaccuracies of the information the Crown provided to the Court in the Disqualification Hearingare unclear. His complaint about the quality of the investigation is even murkier. This lack of clarity is due in whole or in part to myfailure at the outset to give the accused the opportunity to articulate and particularize their concerns.

After the first day of trial, I realizedthis was an oversight I should rectify. [40] I am cognizant that allegations of state misconduct which compromises the fairness of an accused’s trial can engage the doctrineof abuse of process which is now subsumed into the principles of s. 7 of the Charter: R. v.

O’Connor, (SCC). [41] There are two categories of abuse of process under s. 7 of the Charter: (1) state misconduct affecting the fairness of the trial;and (2) state misconduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process butdoes not affect trial fairness: R. v. Nixon, 2011 SCC 34 ; R. v. Babos, 2014 SCC 16 , at para 31.

In this case, conduct ofthe state includes the actions of Crown Counsel and the Conservation Officer Services. [42] There is no doubt the fact the accused were unrepresented by counsel at trial resulted in the Crown having a fairly significanttactical advantage. I am acutely aware the accused are self-represented, in whole or in part, as a result of the Court disqualifying theirlegal counsel on the Crown’s application. Accordingly, after the first day of trial, I thought it appropriate to conduct a Vukelich hearingto obtain a better grasp of the accused’s concerns.

I did not know whether there was any evidence to justify a Charter voir dire. ACharter voir dire may necessitate reopening the Disqualification Hearing (See: R. v. Cody, 2017 SCC 31 at para. 13). August 1, 2019 [43] I advised the Crown and the accused of my decision to conduct a Vukelich hearing on the morning of August 1, 2019. I also toldMr. McDonald he may likely be in a conflict to represent the Crown in such a hearing given the nature of the allegations. Mr. McDonaldresponded as follows: MR. MCDONALD: I am not in a conflict, Your Honour, and with respect you are not an appellate court.

With respect to this matter, inrespect to Judge Jackson's decision, which you don't get to review, the issue was not what happened there -- if I said multiple shots, then Imisspoke. Everything else was precisely accurate. You have not yet heard the statement which will confirm all that is in the submissions. [44] I advised Mr. McDonald that the Crown could proceed with its case and the accused could consider if they want to bring aCharter application in the defence case.

Nevertheless, I had determined at some point to conduct a Vukelich hearing to flesh out theissues to which the accused alluded and assess whether those issues had a Charter dimension the Court should consider. I stood downCourt to give the parties time to digest my comments and consider their position. [45] When Court reconvened, Mr. McDonald made oral submissions opposing the Court consider any Charter issue arising from theDisqualification Hearing, because the Crown had no proper notice or understanding of the issues. I agree the Crown did not have formalCharter notice but Mr.

McDonald must have been aware of the accused’s allegation the prosecution was his personal vendetta againstMr. Berg given their submissions at the Disqualification Hearing. Judge Jackson’s RFJ cites defence counsel’s depiction of theinvestigation as “staggeringly incompetent” and the prosecution as improper.

In the circumstances, I believed it appropriate to hearfurther particulars from the accused about their concerns with the investigation and prosecution of this matter and consider whether theCourt could or should entertain a Charter voir dire. [46] It was not my intention to launch into a Vukelich Hearing on August 1, 2019, but merely to advise the parties I thought oneappropriate. Nevertheless, Mr. McDonald demanded to know from the Court immediately what evidence aside from the multiple shots asopposed to single shot was inaccurate.

Obviously, I could not answer this question because the accused had not yet had an opportunity toparticularize his complaints to the Court. [47] I asked Mr. Berg and Mr. Donecz if they wanted to obtain legal advice on the Charter issue or carry on with the hearing. Mr.Berg stated: THE ACCUSED BERG: -- the inaccuracies in the report to Judge Jackson, it just wasn't one. It was several, several misinformationswhich shows a poor investigation. [48] I stood down court to give the accused time to consider the issue. When they returned to court. Mr.

Berg stated: THE ACCUSED BERG: Yes, we discussed it and we would like to ask for an adjournment and give us our constitutional right to legalcounsel of our choice if we chose to do so, but to -- we tried to seek other legal counsel before and it was – just took forever. We couldn'tfind anybody. It's going to take awhile. It's just -- it's just not easy to find someone who wants to represent you and we strongly believe ifthe COs were to give Mr. McDonald proper information, Mr. McDonald would give Judge Jackson proper information, that we wouldn'tbe in this position that we're in right now.

We just feel that it was a very poor investigation all the way around and our Charter rightswere -- were infringed and we'd like to ask for an adjournment and proper length of time to seek legal counsel of our choice if we do. [49] I adjourned the August 12 and 13, 2019 trial dates and scheduled a pre-trial conference on the morning of August 12, 2019, togive the accused an opportunity to consult with legal counsel. Mr. Murphey was present in the court room as duty counsel.

He offered toescort the accused to the law library and provide them with assistance in using the library’s computer to seek out a lawyer who has some

expertise in defending accused charged with Wildlife Act offences. August 12, 2019 [50] On the morning of August 12, 2019, Mr. McDonald sent to the Judicial Case Manager the “Crown Reply to CourtDetermination to Explore the Possibility of Prosecutorial Misconduct [and] Crown Application for a Mistrial” (the “MistrialApplication”).The Court and the accused received the Mistrial Application the morning of August 12, 2019. [51] At the August 12, 2019 pre-trial conference, I asked the accused if they had received and read the Mistrial Application. Mr.Berg responded: THE ACCUSED BERG: Yeah, thank you, Your Honour.

Yeah, we -- we've read some it. We had a few minutes to read it. I don't reallyunderstand all of it, what's going on, but Mr. Donecz and I decided that we will continue to represent ourselves and that we do not in anyway feel that there's any conflict between us. Our whole case is based on facts; the Regulation, the Wildlife Act and our 80 years betweenthe two of us of the knowledge of the area that -- that was hunted. The history of the area; we know the history between the two of us andprobably better than anybody. There's always been hunting down there, in the area in question.

We have lots of witnesses that willcontest to that. We -- we feel that it wouldn't take very long to prove just through the Regulation that the bear was legally harvested bythe hunter. And so, we'd just like to proceed. Basically all we need is probably a couple of days, one or two days. Even one day with the -- with the COs, questioning the COs and we can prove pretty quickly that it was a legal harvesting. [52] I asked the accused if they intended to raise or rely on any Charter issues with respect to this matter. Mr. Berg stated: THE ACCUSED BERG: No.

In -- in the statement that was given to Judge Jackson by Mr. McDonald, there wasn't just one inaccuracy;there was -- I picked out six. So -- but what is done, is done. So we would just like to proceed and -- and prove that the bear was legallyharvested, and that will be it. [53] Mr. McDonald stated that ideally he would like to proceed with the Mistrial Application that day. The accused said they werehappy to set new trial dates and carry on with me as the judge. In other words, the accused did not want a mistrial. [54] I refused to proceed with a mistrial hearing at the Pre-trial Conference.

Neither I nor the accused had received a copy of thetranscripts on which the Crown based its Mistrial Application. The accused obviously opposed the application, but had no time toprepare or make a considered response given it had only been made that morning. Moreover, the Court already had a busy court listincluding a multi-day trial. [55] Mr. McDonald invited the Court to “issue a written reasoned response to the Crown's application” because he had nothingfurther to add to the materials he provided. These materials included Mr.

McDonald’s Mistrial Application, the transcripts of the July 31and August 1, 2019 trial dates and the following legal authorities: R. v. Bertucci, (SKCA), R. v. Khan, 2013 ONCS5664 , 2013 ONSC 5664 and R. v. MacDonald, 2016 ABQB 154. Crown’s application to quash a Vukelich hearing [56] In his Mistrial Application Mr. McDonald continues to oppose the Court conducting a Vukelich hearing with respect to theaccused’s complaints. At the pre-trial conference on August 12, 2019, I reiterated a Vukelich hearing was a threshold hearing todetermine whether there ought to be an evidentiary Charter hearing. Mr.

McDonald assured me he understood what a Vukelich hearingwas, and went on to say, “It's usually something requested by the Crown, not by the court.” [57] A Vukelich hearing derives from R. v. Vukelich, (BCCA) and is a type of trial management tool trial judgesuse to filter out Charter applications that have no reasonable prospect of success.

The Judge, in controlling the course of proceedings, hasthe power to "decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show areasonable likelihood that the hearing can assist in determining the issues before the court”: R. v. Pires, 2005 SCC 66 . [58] In his Mistrial Application, Mr. McDonald argues and cites case law as to why there is insufficient evidence for the Court toproceed to an evidentiary hearing. It is apparent to me Mr. McDonald has conflated a Vukelich hearing with an evidentiary Charter voirdire.

The accused have not formally applied for Charter relief. Given the history and circumstances of this case, I decided to conduct aVukelich hearing to ensure I have not unfairly denied the self-represented accused an opportunity to explain to the Court their concernsabout the integrity and fairness of the investigation and prosecution of charges against them. I did not intend at this stage to engage in anevidentiary hearing into an infringement of the accused s. 7 Charter rights on the basis of an abuse of process or state misconduct.

I hadnot, could not, and cannot determine if there was a viable Charter issue without first hearing what the accused had to say. [59] Mr. McDonald claims I “misheard or misapprehended Mr. Berg’s comments the day before” and that Mr. Berg was not allegingbad faith but rather an “inadequate investigation” and cites Mr. Berg’s comment “the inaccuracies show a really poor investigation.” I didnot say the accused alleged bad faith. In any event, Mr. McDonald appears to have overlooked Mr. Berg’s complaint that the thingsMr.

McDonald said to Judge Jackson were “just so inaccurate that I don't even know how . . . how anybody could have said some of thisstuff.” [60] I do not agree “I misheard or misapprehended Mr. Berg’s comment.” Moreover, a s. 7 Charter breach for “state misconduct”could arise from the actions of the prosecutor or the investigating officers or both. The whole point of conducting a Vukelich hearing isfor the Court to obtain a better understanding of the substance of the accused’s complaints.

In my view, “state misconduct” as acomponent of an abuse of process is not limited to wilful prosecutorial misconduct. [61] Frankly, I am mystified why the Crown is so resistant to this Court giving the self-represented accused an opportunity toexplain their concerns. Mr. McDonald has known or ought to have known since the Disqualification Hearing the accused took issue withthe integrity and fairness of the investigation and prosecution of the offences now before the Court. The accused are hunting guides, notlawyers.

The fact they do not know how to articulate a potential Charter infringement is not a reason for this Court to ignore it.

[62] Mr. McDonald’s argument and authorities are something I would expect to receive from the Crown in support of a Vukelichhearing or at a Vukelich hearing, not to quash a Vukelich hearing. Crown application for a mistrial [63] The Crown now seeks a mistrial on the basis of my comments accompanying my decision to conduct a Vukelich hearing. [64] Trial judges have broad and inherent common law powers to declare mistrials in necessary circumstances. A declaration of amistrial is a last resort, and will occur only where the Court concludes that no other curative measure will suffice: R. v.

Burke, 2002 SCC55 at para. 76. A reasonable apprehension of bias on the part of the trial judge has the possibility of affecting the fairness of thetrial, and may be grounds for a mistrial. The public expects fair verdicts from its judges and juries. Any departure from that standardwould erode public confidence in the administration of justice: Burke. [65] The Crown’s Mistrial Application is based on my pointing out two potential inaccuracies in the Crown’s submissions of theevidence at the Disqualification Hearing to which Mr. Berg alluded. According to Judge Jackson’s RFJ, Mr.

McDonald “stated that theevidence of the Crown includes the observations of a Federal government employee who saw the client, Mr. Donecz, and anotheremployee of Mr. Berg attempting to retrieve the bear from the water.” I understood from the Crown’s opening at trial the Federalgovernment employee was Mr. Loosmore. [66] Mr. Loosmore could not identify Mr. Donecz at trial, which was of no moment. I am aware the Crown intends to prove theircase on statements Mr. Donecz made to the Conservation Officers. It is also apparent to me from Judge Jackson’s RFJ, Mr.

Greene’ssubmissions and Exhibits 1 and 2 in the Disqualification Hearing, the accused’s statements at trial and cross-examination of Mr.Loosmore that Mr. Donecz’s identity is not in issue. I refer for example the following excerpts from Mr. Donecz’ cross-examination ofMr. Loosmore on pgs. 83 and 89 of the transcript: THE ACCUSED DONECZ: Q . . . During the day in question, September 19th, did you drive upon me, myself, Frankie, Francisco and Glen retrieving a bear from theFulton River? A Okay. You would be the second person that I mentioned earlier on there?

I mentioned Glen and then there was a person whose name -- Q Just yes or no. A -- okay, so you would be -- you're saying that you're that person? Q Yes. A Okay. Q Yeah. A Yeah. In that case, you say you're the person, I can't argue with that. Q No problem, yeah, just -- A Yeah. And later: THE ACCUSED DONECZ: Q When you came up to the scene of Glen, Francisco and Frankie, who was in charge of the scene? A Well, that's a good question there. Glen sounded and acted like he was in charge. Q Yeah. We established that. So Glen was in charge of this scene, he did -- A He gave that impression. Q -- most of the talking?

Sorry, I cut you off. A Yeah. He gave that impression. Q Yes. A 'Cause he was the one who approached me as I came walking up and immediately started talking. Q Yeah. When we were down there, part of the conversation, do you remember telling Glen that next time we go down there we shouldcall you first? [67] I also pointed out a potential inaccuracy to which Mr. Berg may be referring is reflected in Judge Jackson’s statement, “TheCrown continued that the client shot the Grizzly bear several times and it was dead in the middle of the channel.” Mr. Greene submittedthe bear was shot once. On August 1, 2019, Mr.

McDonald said, “If I said multiple shots, then I misspoke.” He went on to say about the

“one shot” / “multiple shots” issue that “it was an irrelevant fact.” Mr. McDonald said: “we don't care if the bear was shot once, twice orthree hundred times. It is the act of shooting on the DFO property that is at issue in this.” [68] Mr. McDonald now seeks a mistrial because, “there was no basis for the Court to make a finding that it heard any evidenceabout a shot, shots or shooting.” I agree that Mr. Loosmore did not testify to having observed or heard the bear being shot. Perhaps I didnot articulate it precisely, but my intent was simply to point out that nothing Mr. Loosmore said supported Mr.

McDonald’srepresentation in the Disqualification Hearing that the “client shot the Grizzly bear several times.” [69] The context of my comments bears reiteration. On July 31, 2019, Mr. Berg complained Mr. McDonald made a number ofinaccurate submissions of evidence to the Court at the Disqualification Hearing. By the second day of trial on August 1, 2019, Mr. Berghad not identified those inaccuracies or explain their impact on his trial because I had not yet given him that opportunity.

After the firstday of trial I concluded that was an oversight and the accused ought to be given an opportunity to particularize their concerns in aVukelich hearing. The only role Mr. Loosmore’s evidence played in this decision was to prompt me to speculate what might be one ortwo of the inaccuracies to which Mr. Berg referred. Mr. Greene had already submitted to Judge Jackson the bear was shot once, notseveral times. As nothing Mr. Loosmore said in his oral testimony suggested otherwise, I though this might have be an inaccuracy towhich Mr. Berg referred. [70] In a similar vein, Mr.

McDonald’s submission to Judge Jackson at the Disqualification Hearing suggested Mr. Loosmore wouldtestify he observed Mr. Donecz attempting to retrieve the bear from the water. Given Mr. Loosmore could not identify Mr. Donecz, Iagain speculated perhaps this was also an inaccuracy to which Mr. Berg referred. [71] I did not and have not made any findings of fact in the trial. I have not prejudged, predetermined, misunderstood,misapprehended, or speculated on the evidence for the purposes of adjudicating the trial or an evidentiary hearing into a breach of theaccused’s s. 7 Charter rights.

I agree I did speculate as to what Mr. Berg considered an inaccuracy in the Crown’s submission at theDisqualification Hearing. I also agree this was unnecessary because the accused could simply tell the Court what they consideredinaccurate and I should have given them an opportunity to do so. [72] Recently, in R. v. Ibrahim, 2019 ONCA 631 , the Ontario Court of Appeal set out the law on apprehension of bias.

TheCourt held at paras, 83 to 85 [Citations omitted]: [83] The test for establishing a reasonable apprehension of bias is well known – would a reasonable person, properly informed andviewing the matter realistically and practically conclude that the decision-maker could decide the case fairly . . . . [84] In Canadian law, judges are presumed to be impartial . .

There is a strong presumption of judicial impartiality and a heavy burden ona party who seeks to rebut this presumption. . . [85] When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must beviewed in context. . . . It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettableand of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness . . . . [73] Given Mr.

Donecz’ identity is not and has never been in issue, and the number of times the bear was shot, according to Mr.McDonald, is an “irrelevant fact”, I am not persuaded my comments in the context in and the purposes for which they were made justifya mistrial. [74] The unusual if not extraordinary contextual circumstances of the Crown’s Mistrial Application include: (

a) the Crown appliedto have the accused’s counsel of choice disqualified from continuing to representing either of them; (

b) the Crown asked the Court toexclude the accused’s former counsel from the courtroom during a public hearing; (

c) the Crown has applied to quash a Vukelich hearinginto a possible breach of the accused’s s. 7 Charter rights; and (

d) the Crown Counsel whose conduct is subject of the accused’scomplaints has brought and argued this application for a mistrial on the basis of apprehension of bias. [75] In R. v.

Khan, 2001 SCC 86 , at para. 80, the Supreme Court held a decision on whether an incident has affected trialfairness in a way which would warrant declaring a mistrial must take into account any corrective measure which has been brought orcould be brought by the judge to remedy the irregularity. [76] The context of my “impugned comments” was in respect to my decision to conduct a threshold hearing into the accused’scomplaints about the integrity and fairness of the investigation and the prosecution of the offences before the Court.

I do not accept thesecomments fatally wounded the trial process or the administration of justice. Conclusion [77] I am of the view a reasonable person, properly informed and viewing the matter realistically and practically, would concludethat as the trial judge, I could decide the case fairly. Accordingly, the Crown’s application for a mistrial is denied. [78] To the extent the Mistrial Application is also a Crown application to quash a Vukelich hearing, it too is denied. __________________________________ Judge J.T. Doulis Provincial Court of British Columbia