2014 QCCA 1441, 2014 QCCA 1441

Unofficial English Translation Hébert c. R. 2014 QCCA 1441 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005066-111 (760-01-051646-104) DATE: August 1, 2014 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. FRANCE THIBAULT, J.A. MANON SAVARD, J.A. SÉBASTIEN HÉBERT APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a guilty verdict on a charge of first degree murder rendered on December 1, 2011, by a jury presided by the Honourable Jean-Guy Boilard of the Superior Court, District of Beauharnois. [ 2 ] For the reasons of the Chief Justice, with which Thibault and Savard JJ.A. agree: THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] ORDERS a new trial on the charge; [ 5 ] REFERS the file back to the Superior Court so that it may proceed accordingly. NICOLE DUVAL HESLER, C.J.Q. FRANCE THIBAULT, J.A. MANON SAVARD, J.A.

Mtre Maude Pagé-Arpin LATOUR DORVAL DEL NEGRO Counsel for the appellant Mtre Jean Campeau CRIMINAL AND PENAL PROSECUTOR Counsel for the respondent Date of hearing: May 27, 2014

REASONS OF THE CHIEF JUSTICE [ 6 ] Every accused has the right to a fair trial. [ 7 ] Although there is a strong presumption of impartiality, the appellant has convinced me that, in this case, the behaviour on the part of the trial judge was such as to raise a reasonable apprehension of bias. [ 8 ] For the following reasons, I would allow the appeal and order a new trial. Overview of the facts [ 9 ] Michel Lespérance was found dead in a hotel room on December 4, 2005.

In 2010, the appellant was charged with his first degree murder. [ 10 ] After a ten-day trial during which the Crown called several individuals to testify, the jury found the appellant guilty. Reasonable apprehension of bias [ 11 ] The duty of impartiality incumbent on judges protects the fairness of the trial. Thus, bias constitutes a miscarriage of justice. [1] According to the leading case of R. v.

S. (R.D.) , impartiality consists in "a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions". [2] The test is the following: [3] [W]hat 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 not decide fairly…?

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". The test is therefore doubly objective: both the person and that person's apprehension must be reasonable. [ 12 ] In R. v.

Brouillard, a case in which the judge had interjected sarcastic comments during examinations, the type of behaviour alleged against the judge in the present case is discussed from the perspective of the appearance of bias. [4] [ 13 ] I note that, in this case, the prosecution acknowledged at the outset of the hearing that if all jury trials were conducted like this one, the administration of justice would fall into disrepute. The conduct of the judge was indeed unacceptable. I will now consider it in more detail.

Remarks made before the jury [ 14 ] The transcript reveals that the judge's attitude was intransigent and that he showed himself to be unduly irritated. Here are a few examples: [The witness states that the prison guards told him that he was in preventive custody because his life was in danger due to his collaboration at the appellant's preliminary inquiry] [ translation ] THE DEFENCE I did not receive that information. I object to this evidence. THE COURT That doesn't matter. Objection dismissed . THE DEFENCE Okay. THE CROWN Q: At whose preliminary inquiry?

A. Sébastien Hébert's. Q: Okay. A. By coming to testify at Sébastien Hébert's preliminary inquiry, well, my life was in danger. THE DEFENCE Objection, Your Lordship. This information was not disclosed to me. I don't want this evidence to be excluded, but I have the right to know what ... THE COURT Madam, the objection is dismissed. You can explore this in cross-examination or at the end of the Crown's examination-in-chief, you can make submissions on this point, but for the moment, the objection is dismissed. There is nothing inadmissible or illegal about this evidence on its face.

THE DEFENCE Not even the right to disclosure? THE COURT Madam, I believe I have told you three (3) times, I do not answer lawyers' questions. And according to my job description, I am not here to provide refresher training for lawyers. I have just rendered my decision and I have repeated it for you . THE DEFENCE Very well, Your Lordship. A: Okay.

Uh, since I came to testify at Sébastien Hébert's preliminary inquiry, I... in Drummondville, in May, on the 19th of May, they have had me in custody because they said that the Hells Angels would have a contract out on my head because I came to testify in Court for Sébastien Hébert. That I had... that my life would be in danger. [5] ... ***** [The defence made a mistake regarding where to begin playing the video evidence] THE COURT Well, listen, don't let your amateurism get the better of you . You are in front of a jury at the moment, you are cross-examining a witness...

THE DEFENCE I am sorry, Your Lordship, I made a mistake. I don't believe I have made many in this trial. THE COURT Well, we'll see when we tally them up later on. [6] ... ***** THE DEFENCE Following the intelligent question from the jury, I would like to ask another. May I? THE COURT Let's hope it's of the same nature. [7] ... ***** THE DEFENCE Q: Do you remember if there was a charge of arson? A. It was in our garage. And the fire started. There was a plantation in the garage. The fire started. THE CROWN

I object to the term charge. As I just said, it may be incidents where she was merely summoned. ... THE COURT I rely on the good faith and intelligence of lawyers when they ask questions. So if you are basing your questions to the witness on a file containing convictions, what the jargon used to refer to as an “FPS”?, well then, ask the question. But you cannot interpret a document or walk around with a document in your hands as you did yesterday to read from it verbatim, letting it be believed or suggesting that you have information about a charge. That's not how it's done .... ...

Madam, the next time you do something like that in front of me, you will be testifying. Because that is what you are doing now and you are doing it in the presence of the jurors. And you know, and if you don't know I will tell you, what you are doing is totally irregular . [8] ... ***** THE COURT ... Take

section 10 and all you have to do is comply with it. THE DEFENCE He has not denied it, Your Lordship. He has not denied it yet. THE COURT Madam, I believe that you have a short memory. I told you that I do not debate with lawyers and I do not try to justify my decisions, right or wrong . [9] ... THE COURT Read

section 12 of the Evidence Act. THE COURT Yes. I've read it. THE COURT ...

Section 12 tells you what to do. You don't have to tell us. We've read it, we are familiar with it . Next question. [10] ... ***** THE COURT All right. So the objection is dismissed. The question is allowed. But I will give you one warning. The cross-examination cannot become some kind of free-for-all where any more or less injurious question to a witness is allowed. And second, there are limits to a cross- examination. And it cannot become a form of witness harassment . [11] ... ***** THE COURT No. Well yes, but listen, this isn't a free-for all. You have...

THE COURT ... rules of evidence, Madam, that must be respected. ... Except I am dealing with irregularities committed by counsel for the accused, and I hear absolutely nothing from your end [the prosecution] . I find that a bit strange. What do you want to produce, Madam? What is it that you want to produce? THE DEFENCE I want it to be clear before the jury that the Defence may produce evidence. THE COURT But what do you want to produce? This is the third (3rd) time...

THE DEFENCE Photographs! THE COURT I am not asking you to be hysterical, I am simply asking you to answer me . [12] ... ***** THE COURT Well, it might be time for you to re-read

section 10 and for you to comply with it at some point. For the moment, your objection is dismissed. [13] [ 15 ] I note as an aside that at no point during these exchanges did the judge ever address counsel for the accused as " Maître ", the recognized professional title used in Quebec. If he used any title for her at all, it was [ translation ] "Madam", which, while polite, is devoid of any professional meaning and clearly condescending in this case.

Remarks made in the absence of the jury [ 16 ] In addition to the above remarks, other incidents occurred in the absence of the jury but, obviously, in the presence of the appellant, counsel, and the audience. [ 17 ] Here are a few examples: [ translation ] THE COURT You will not restate it. The witness [during the testimony of the accused in a voir dire ] cannot give you his opinion about what he thinks Pelletier might have done with the Sureté du Québec. Come on! THE DEFENCE I withdraw this question.

Q: I will ask you the following question: What did you understand from what the police officers were telling you about working with them? A. Well, they... THE COURT You don't think... Do you take me for an imbecile? ... THE DEFENCE All right, Your Lordship. A. Now I'm stressed. ... So, what I said before, now I am afraid of saying it again, I wouldn’t want to anger the Judge. [14] ... ***** THE DEFENCE All right. Your Lordship, may I respond to the objection? THE COURT It is allowed. ... THE COURT ... My threshold of tolerance of lawyers who dispute my decisions is rather low. THE DEFENCE I know. THE COURT

So, comply with what I say and continue if you want to continue. [15] ... ***** THE DEFENCE Excuse me, Your Honour. I excused myself to take a deep breath so that I could speak calmly.... You have emphasized my amateurism and I did not take umbrage at this remark because I am outside this, it is not me, I am the lightning rod for Mr. Hébert and neither I nor my competence are on trial.

But what I would ask you, when you do not know where I am going, is to trust me and perhaps not tell the jurors that I am torturing the witnesses, that I am fumbling along with my documents, or that I am insulting and cursing them. ... Everything that I am doing is not pointless and vain. I do not want your respect, I simply want the luxury of working in peace and I admit that, with my accumulated fatigue, it is difficult . [16] ... ***** THE COURT ... I do not make it a habit to answer lawyers' questions. I also do not make it a habit to give them refresher course in criminal law . [17] ... ***** THE COURT ...

It would perhaps be good if Madam Pinsonneault listened to us. THE DEFENCE Excuse me, Your Lordship. ... I am able to do two (2) things at once. THE COURT Women do that all the time. That doesn't mean it's always well done, but they do it anyway! THE DEFENCE Oh! [18] ... ***** [The defence raises a question relating to the conditions of detention] THE DEFENCE Just a moment. So, Your Lordship, excuse me, I have not seen this gentleman before and yesterday there was a request to the Court, but now I see by your attitude that the request will no longer be accepted. Do you have access to ...

THE COURT You know, now, I first... Before dealing with questions of detention, I have a decision to make. I will make it. And after that, we will see. ... THE COURT I do not want anyone to imagine that I have suddenly become a kind of wet nurse . That’s not my role. ... THE DEFENCE That said, I believe that it is important for my client to have ... THE COURT Yes. Do you know... THE DEFENCE May I finish my sentence? THE COURT

No. Madam, listen to me closely. There is no jury here. Get it through your head that in the trial room, there is only one person leading the debates, and it is not you. ... So therefore, based on that, when I say, "I will render my decision" that is when you shut up, you sit down, and you listen. It is as brutal and as simple as that . [19] ... ***** [The judge addresses the prosecution and the defence intervenes] THE COURT Will you please, Madam. First, the first thing, would you just sit down. This will be a very simple thing.

This will prevent you from speaking . [20] ... ***** THE DEFENCE In the instructions, it is certainly clear that the Court gives the jurors its opinion as to Mr. Hébert's guilt. THE COURT Believe whatever you want, it doesn't matter to me. THE DEFENCE It is not what I think, it is not important what I think, I am saying it. THE COURT That also doesn't matter to me. [21] ... ***** THE DEFENCE May I address the Court? ... THE COURT Call in the jurors . THE COURT Your Honour, may I address the Court? THE COURT Call in the jurors, Madam . [22] [ 18 ] I will not mince my words.

Once again, it is apparent that the judge's tone was contemptuous and that he systematically failed to use the professional title " Maître " to address counsel for the accused.

In addition to his unacceptable attitude, there was his repeated, if not to say obstinate, refusal to rule on or even consider the appellant's objection to undisclosed prejudicial evidence, which was referred to during the Crown examination when the incarcerated witness Dany Roy reported that a prison guard had told him that his life was in danger because the Hells Angels had a contract out on his head due to his collaboration at the appellant's trial.

The defence immediately objected, justifiably, on the grounds that the prosecution had not disclosed this information. [ 19 ] As we have seen, the judge, seemingly seeking to reassert his infallibility, peremptorily dismissed the objection three times over. He allowed the witness to continue before eventually interrupting the examination after a conversation with counsel in the absence of the jury.

He issued curative instructions telling the jury to ignore this aspect of the testimony as to the truth of its contents, which speaks volumes about the legitimacy of his initial criticisms of counsel for the appellant. [ 20 ] I note that the object here is not to review of the merits of the trial judge's decision on the objection as to the admissibility of this evidence nor to determine whether the curative instructions were sufficient.

When analyzing the reasonable apprehension of bias, this aspect of the judgment is relevant only insofar as it raises a reasonable doubt in the mind of a well-informed person who must decide whether, in his or her opinion, the judge ruled on the objection in accordance with the law or whether the judge was influenced by bias or some type of prejudice against the appellant and/or his counsel. [ 21 ] Without entering into a discussion of the merits of the objection, the fact remains that it raised serious questions that at the very least warranted careful consideration.

The judge nevertheless stood firm in his position, despite the defence's repeated attempts to

prevent the jury from being irreversibly exposed to potentially inadmissible evidence.

In the circumstances, it is certainly possible for areasonable person to entertain a serious doubt as to whether the judge addressed the issue with the openness of mind incumbent uponhim in his capacity. [22] Similarly, when the trial judge refused to hear counsel for the appellant regarding a request concerning the conditions ofdetention on the grounds that he was not a "wet nurse"[23] and followed this remark with an unequivocal refusal to hear it,[24] it iscertainly possible for a reasonable person to entertain doubts as to his impartiality. [23] In my view, on the whole and in light of the context, the words and actions of the trial judge were cumulative in effect and arelikely to give rise to a reasonable apprehension of bias. [24] Moreover, the ignominious remarks that the judge directed at counsel both before and in the absence of the jury evinced aninherently sexist attitude.

Only women try doing two things at once, with unhappy results;[25] the judge is not a "wet nurse";[26]counsel for the appellant is a hysterical [translation] "madam";[27] the professional titles of [translation] "counsel" or "maître", whenused, are reserved only for Crown counsel. The latter received only a handful of reprimands. Overall, the trial judge spared him thecondescending attitude that he displayed towards counsel for the appellant. [25] These are also concrete actions of the judge to be considered.

I admit that, in the thick of a ten-day trial, exemplary patiencecannot be demanded of judges at all times. Nevertheless, trial judges have an obligation not only to be impartial, but also to preserve theappearance of impartiality.[28] The refusal to hear an objection based on the right to disclosure of the evidence and a motion on theconditions of detention – both of which were reasonable, sensible and possibly justified – can only raise doubts as to the judge's opennessof mind and impartiality. [26] This finding of a reasonable apprehension of bias is sufficient to allow the appeal.

The Supreme Court teaches that the existenceof a fear of bias necessarily results in a new trial:[29] The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a newtrial must be held. In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction inthe proceedings and there is no alternative to a new trial. [27] But in this case, there is also another reason.

Fairness of the trial [28] In the factums and at the hearing, the parties dealt with the behaviour of the trial judge from the perspective of the reasonableapprehension of bias. [29] That said, the appellant cites passages from Bisson,[30] which frames the remarks of the trial judge as direct and independentattacks on the fairness of the trial without calling on the notion of apparent bias. [30] Considering bias and fairness as part of the same issue is understandable.

It has been done in numerous decisions dealing withthe behaviour of trial judges, where the scathing remarks of judges are seen as inherent breaches of the fairness of the trial.[31] [31] Although the parties in this case did not base their submissions on the aspect of the fairness of the trial, the evidence reproducedand the arguments raised are sufficient to permit an assessment of the fairness of the trial in light of the trial judge's remarks.

This aspectshould therefore be addressed. [32] To constitute a miscarriage of justice, the judge's condescending behaviour need not raise a reasonable apprehension of bias.The conduct on its own may undermine the fairness of the trial. This is explained by Baudouin J.A. in R. v. Bisson:[32] [translation This is not a hypothetical situation... in which the judge, forgetting his duty of impartiality and as arbiter of the debate, enters the fray,taking the initiative to examine the witnesses themselves (see for example Brouillard dit Chatel v.

R., (SCC), [1985] 1S.C.R. 39), or inappropriately interferes in the examinations or cross-examinations. This case is different and concerns only thecontemptuous remarks that were publicly directed towards certain actors in the trial. There is a limited number of appellate rulings on such matters.

On a few occasions, however, new trials have been ordered where thefairness of the trial that had already taken place was compromised. [33] The Court of Appeal went on to identify the applicable criteria as follows:[33] [translation] The lack of courtesy – indeed the rudeness – of the judge's remarks justify overturning the verdict only if it is proved not that theaccused suffered harm, but that a reasonable person would find that the accused did not undergo a fair trial.

Where the judge's remarks toeither of the parties are so inappropriate and impolite that they create a perversion or travesty of justice and insult the justice systemitself, an appellate court's intervention is justified, even if the verdict appears to be reasonable and adequate. Such interventions takeplace in the best interest of justice and to preserve the image of justice where justice cannot be seen to have been done even if the finalresult is just. It is a question of safeguarding the integrity of the judicial process itself.

This excerpt reveals that the mere appearance of having presided a trial that was unfair because of how it was conducted may in itselfconstitute a miscarriage of justice. As in the case of the reasonable apprehension of bias,[34] not only must the trial be fair, it must also

appear to be fair. [35] [ 34 ] I wish to add an observation regarding Bisson . In that judgment, Baudouin J.A. stated that [ translation ] "given the evidence that was presented to them, the verdict also appears to me to be reasonable and supported by the evidence". [36] [ 35 ] With respect, the strength of the evidence presented against an accused is irrelevant when the fairness of the trial is at issue. The fairness of the trial is an issue relating to the miscarriage of justice under section 686(1)(a)(iii) Cr. C.

It is different from an appeal on a question of fact under section 686(1)( a )(i), requiring the appellate court to determine whether the verdict is unreasonable or unsupported by the evidence. Nor is it an appeal based on an error of law pursuant to section 686(1)( a )(ii) Cr. C ., where the appellant court must consider whether the error is inconsequential or the evidence overwhelming in deciding whether the curative proviso in section 686(1)( b )(iii) Cr. C . should apply.

The curative proviso cannot redress a miscarriage of justice. [37] Only appeals based on an error of law within the meaning of section 686(1)( a )(ii) Cr. C . may be rejected where the evidence is so overwhelming that an accused could not have suffered any significant harm. [38] [ 36 ] The strength or weakness of the prosecution's evidence is therefore not relevant at this stage. Under section 686(2) Cr. C. , the Court must order a new trial regardless of the weight of the prosecution's evidence. An accused is entitled to a fair trial, regardless of the facts alleged.

Therefore, Bisson shows us that a judge's disparaging remarks lead to a miscarriage of justice when a reasonable person is able to conclude that the accused did not benefit from a fair trial, regardless of the weight of the evidence against him or her. [ 37 ] It takes more than a lack of courtesy or a display of impatience, however, to render a trial unfair. R. v. Turkiewicz illustrates how remarks denigrating the defence in the presence of the jury compromised the fairness of the trial.

The judge had interrupted the cross-examination being conducted by the defence with an erroneous statement that the attorneys were deliberately misleading a witness. He spoke as follows: [39] You're not supposed to be carrying on a conversation. I don't know what you asked your friends – trying to make a mockery of our trial. Well, I'm not going to let you …. You're trying to make a farce of this case and I don't want to let you do that, that's it.

Although the judge tried to redress the situation by allowing the cross-examination on the question he had originally refused to allow, a new trial was ordered because of his unjustified interference. [ 38 ] Of course I recognize that a breach of the fairness of the trial must be determined on a case-by-case analysis. It is important to place the trial judge's impugned remarks in their context and assess them in light of the trial as a whole. [ 39 ] R. v.

Valley provides a useful classification of judicial interventions: [40] I- Questioning of an accused or his witnesses to an extent or in a manner which conveys the impression that the judge is placing his authority on the side of the prosecution and which conveys the impression of disbelief of the accused or defence witnesses … II- Where the interventions have made it really impossible for counsel for the defence to do his or her duty in presenting the defence, for example, where the interruptions of the trial judge during cross-examination divert counsel from the line of topic of his questions or break the sequence of questions and answers and thereby prevent counsel from properly testing the evidence of the witness III- Where the interventions prevent the accused from doing himself justice or telling his story in his own way IV- The Courts have drawn a distinction between conduct on the part of the presiding judge, which is discourteous to counsel and indicates impatience but which does not invite the jury to disbelieve defence witnesses, and conduct which actively obstructs counsel in his work.

The authorities have consistently held that mere discourtesy, even gross discourtesy, to counsel cannot by itself be a ground for quashing a conviction. Where, however, the trial judge's comments suggest that counsel is acting in a professionally unethical manner for the purpose of misleading the jury, the integrity and good faith of the defence may be denigrated and the appearance of an unfair trial created [ 40 ] In the situation before us, the trial judge made remarks before the jury that discredited counsel and the defence she was putting forward.

In my view, the excerpts reproduced above go far beyond a mere lack of courtesy. The judge was abrasive and contemptuous, questioning the professionalism and competence of counsel for the appellant. These remarks could not have been overlooked by the jury. As Fish J.A., as he then was, stated in a unanimous judgment, judges wield considerable influence over the opinion of the jury: [41] The position of the trial judge "is one of great power and prestige which gives his every word an especial significance". Even experienced counsel are ever anxious to discover the judge's mind.

And they read the judge's thoughts through the prism of the judge's words. Jurors, I should think, are no less influenced by the judge's opinions, openly expressed in unambiguous terms - perhaps even for their exclusive benefit. Remarks from the bench that depreciate defence counsel do not leave untarnished counsel's credibility with the jury.

This can reasonably be expected to have some adverse impact on the jury's appreciation of the entire defence . [ 41 ] In this case, the trial judge suggested to the jury that counsel for the appellant was acting irregularly, [42] that she was harassing and insulting the witnesses, [43] and that she was trying to circumvent the rules of evidence. [44] This behaviour corresponds to category IV in Valley , i.e., it suggested that counsel was acting in a professionally unethical manner for the purpose of misleading the jury.

By thus denigrating counsel for the appellant and, as a result, the defence that she was attempting to put forward, the trial judge in this case

undermined the fairness of the trial. [ 42 ] If the judge wished to share certain observations regarding the rules of evidence with counsel for the appellant, he could have done so when the jury was not present.

Furthermore, if he was faced with an inexperienced attorney – which is what he strongly insinuated – though the transcripts do not support that view, he should have been twice as prudent so as to attenuate the imbalance between the parties, instead of aggravating the situation as he did. [ 43 ] In short, an appellate court cannot condone the behaviour of a trial judge who has, through his behaviour, not only raised an appearance of bias but also breached the fairness of the trial.

It cannot be said with any certainty that the comments of the judge in this case did not discourage the jury from contemplating any verdict other than guilt, regardless of the strength of the evidence against the appellant. [ 44 ] The trial judge's animosity and contempt towards counsel for the appellant, which he displayed so flagrantly and repeatedly, leads me to find that, in this case, the fairness of the trial was in all likelihood breached. Conclusion [ 45 ] It is important to note that the charge of first degree murder is one of the most serious in the criminal law.

Admittedly, it is not possible to insist that the conduct of trial judges be perfect at all times. It is just as true, however, that no doubt as to the impartiality and fairness of the trial may be tolerated. A new trial is required. [ 46 ] For these reasons, I would allow the appeal and order a new trial. NICOLE DUVAL HESLER, C.J.Q.