R. v. Martin, 2022 BCPC 232

Citation: R. v. Martin 2022 BCPC 232 Date: 20220510 File No: 35881-10 Registry: [omitted for Publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHANEL PATRIC MARTIN RULING ON APPLICATION OF THE HONOURABLE JUDGE L.THOMAS Counsel for the Crown: S. Mann Counsel for the Defendant: G. Wool Place of Hearing: 100 Mile House , B.C. Date of Hearing: March 30, 2022 Date of Judgment: May 10, 2022

INTRODUCTION [ 1 ] This is an application brought by the accused, Nathanel Martin to have me recuse myself as the trial judge and to seek a mistrial declaration. [ 2 ] By way of brief background, Mr. Martin’s criminal matter has been before the court since February 19, 2019. On November 3, 2020, the court was informed that Mr. Martin wished to withdraw his guilty pleas which were entered in his absence on June 4, 2019, by the counsel then representing him. [ 3 ] On May 12, 2021, Mr. Wool, current counsel for Mr. Martin, and Mr.

Mann, Crown counsel, sought direction on how to proceed with respect to the application to withdraw the guilty pleas. [ 4 ] On May 25, 2021, I directed Mr. Martin to file an Application To A Judge to withdraw his guilty pleas to Count 2 and Count 3 on Information 35881-1-K and to which Crown could file a reply. [ 5 ] On July 3, 2021, Crown applied for a

summary dismissal of the Application To A Judge to withdraw the guilty pleas through a Vukelich hearing. To date, neither a sentencing date for Mr. Martin nor a hearing date for the application to a judge to withdraw Mr. Martin’s guilty pleas has been scheduled. Mr. Wool has filed a Charter notice, and he has indicated that he will be filing a Jordan application in the future. [ 6 ] In this application for recusal, Mr. Wool asserts that I have displaced my impartiality by failing to recognize a constitutional violation against the accused when: 1. a guilty plea was entered on behalf of Mr.

Martin out of his presence, 2. I ordered Mr. Martin file an Application To A Judge to withdraw his guilty plea, 3. my impartiality and independence was compromised when Crown sent materials to me, out of court, without the consent of Mr. Wool or his client in advance of the pre-trial for the Crown’s application for a Vukelich hearing. [ 7 ] Mr. Mann, counsel for the Crown, argues that Mr. Martin’s application has no merits and Mr. Martin has not established a reasonable apprehension of bias.

ISSUE [ 8 ] The issue before the Court is whether an informed, reasonable, and right-minded person viewing the matter with knowledge of the relevant circumstances, including the integrity of the Court to remain impartial, would conclude it more likely than not that I would, consciously or unconsciously, not decide the trial fairly. [ 9 ] I note that Mr. Wool in his application also seeks a mistrial declaration, however, since this matter involves pre-trial proceedings and this application is made prior to trial not during trial, I have only considered the application as it relates to my recusal.

POSITIONS OF THE PARTIES Position of Mr. Martin [ 10 ] In the application for recusal of the trial judge and a mistrial declaration filed on January 12, 2022, Mr. Martin states the application is based on the following grounds: 1. Trial judge displaced her impartiality by failing to recognize a constitutional violation, as against the accused; namely an improper guilty plea proceeding June 4, 2019, contra s. 606.1 C.C. [sic] without the presence of the accused, contra s. 650. 2.

Trial judge created a reasonable apprehension of bias by acceding to an unfair prosecution demand and ordering the accused to disprove the validity of guilty pleas that he wasn’t a party to. In effect, this order required the accused to displace his right to silence. 3. Trial judge’s impartiality and independence was comprised [sic] by Crown Counsel sending materials to the trial judge, out of court, and without consent of the accused. [ 11 ] Turning to Mr. Wool’s submissions with respect to these grounds of his application, I have summarized his submissions as follows: Grounds 1 and 2 [ 12 ] When Mr.

Martin appeared before the court on November 7, 2020, he was unrepresented. Crown counsel informed the court that Mr. Martin was before the court to withdraw his guilty plea and that they were opposed to the application to withdraw the guilty pleas. [ 13 ] According to Mr. Wool, the court informed Mr. Martin that he was required to provide some basis for the application, file an affidavit on his own behalf, and file an affidavit from his former counsel. [ 14 ] Mr. Wool characterizes this interaction between Mr. Martin and the court as an admonishment of Mr. Martin while the Crown said nothing. Mr.

Wool submits that the “Crown counsel as an officer of the court could have easily said I do not want to say anything unless this person has counsel in court” and goes on further to say “I am astonished that his proceeding is allowed at this point. Mr. Martin is unrepresented at this point. Legal terms are being used such as application to withdraw and affidavit”. Mr. Wool submits that the judge “joins the Crown” by telling Mr. Martin that he had to bring an application in order to have his guilty pleas reconsidered.

[15] Mr. Wool submits that Mr. Martin’s guilty pleas entered on June 4, 2019, were not valid because he was not present in court,which meant the court was unable to conduct a s. 606 inquiry and compliance with s. 606 was violated. [16] According to Mr. Wool, s. 606 requires the judge to make an inquiry about the voluntariness of the plea and that that inquiry bein the presence of the accused. Mr.

Wool further argues that: It’s also the position that I take is that, through no fault of yours, and I’m not causing this, but I think you did make an error what we calla palatable and irreversible error by failing to enforce s. 606 [17] Mr. Wool submits that on November 7, 2020, once the court was informed of the circumstances of the guilty pleas, this violationcould have been corrected by the court requiring Mr. Martin to appear to confirm that he wanted to plead guilty. [18] Mr.

Wool submits “You could have very easily simply said to myself and to Crown, ‘Look, I cannot put this person – or I cannotaccept a guilty plea unless s. 606 has been complied with, it has not been complied with, and we’re going to have to have the accusedback here to confirm that he actually wants to plead guilty’”. According to Mr. Wool, “…this is an error because I cannot enforce aprocedure that’s unlawful or is invalid. It’s an invalid plea”. [19] Mr.

Wool submits that a reasonable apprehension of bias was created when I assisted the Crown by acceding to the Crown’sobjection to the guilty plea withdrawal, and directing that Mr. Martin has to go through the process of the Vukelich hearing and then thehearing of the application to withdraw his guilty pleas. Ground 3 [20] Mr. Wool submits that Crown sent him an email with an Application To A Judge for a

summary dismissal of the application towithdraw the guilty pleas but that, until he attended court, he did not have notice of the application. [21] Mr. Wool also submits that when the matter was adjourned to

schedule a pre-trial conference to determine whether a Vukelichhearing should proceed, Crown sent an email attaching his materials to me in advance of the hearing. [22] The email dated July 28, 2021, sent from Mr. Mann to the Judicial Case Manager states as follows: Your Worship, we have the Martin file in its multiple forms for pretrial conference in front of [omitted for publication] list judge onTuesday, August 3. I’m attaching my friend’s application as well as the Crown’s counterapplication for

summary dismissal. Can thesedocuments please be brought to the attention of the sitting judge? And I understand that the point of this PTC is to discuss whether theVukelich application is necessary as well as the time estimate and procedure for conducting the Vukelich application, including how andwhether evidence will be heard. [23] Mr. Wool submits this is impermissible for the Crown to forward these materials. He argues that the Crown’s actions raise areasonable apprehension of bias. Exhibits and Case Law [24] In support of this application, Mr.

Wool submitted and marked as Exhibit 1 in these proceedings, transcripts from Mr. Martin’scourt appearances before the Honourable Judge Whonnock on May 7, 2019; the Honourable Judge Whyte on June 4, 2019; theHonourable Judge Whonnock on October 1, 2019; and the Honourable Judge Whyte on November 3, 2019. [25] Submitted and marked as Exhibit 2 in these proceedings is an email dated July 28, 2021, sent to the Judicial Case Manager fromCrown counsel, Mr. Mann. [26] In his submissions, Mr. Wool relied on the following cases: 1. R. v. St. Andrassy & Checkpoint Livestock (15 November 2000), Chilliwack X39576 (BCSC); 2.

R. v. Frank, (6 September 2005) Williams Lake 26335 (BCPC); 3. R. v. Bertucci, , (SKCA) [27] Supplementing the Frank case was a copy of the outline of the Mr. Wool’s argument in that case, which Mr. Wool submits thecourt adopted. Ruling on witness evidence [28] Mr. Wool sought to rely on the evidence of Mr. Martin’s 14-year-old child, who was aged 10 years old at the time of thesealleged incidents that occurred on November 18, 2019, to give evidence about the conduct of the police when they responded to theincident. [29] Mr.

Wool submitted that this proposed evidence would support his theory that Crown’s conduct in sending materials out of courtto the judge in the matter was a calculated effort to ensure a predetermination of the matter thereby concealing the impugned actions ofthe RCMP in this incident. Mr. Wool supposed that once the impugned police conduct was before the court, he would then be able toapproach the Crown to discuss whether they would be agreeable to withdrawing the charges against Mr. Martin. [30] I did not permit Mr. Wool to rely on evidence from Mr.

Martin’s 14-year-old child because it was not relevant to this recusalapplication and the proposed evidence would serve no purpose in this application. I found in my role, exercising my gate keepingfunction to regulate use of court time, control court process, and maintain the public confidence in the administration of justice, I couldnot allow this request.

[ 31 ] Although Mr. Martin was listed as a witness in this application, Mr. Martin’s proposed evidence about the alleged police conduct also would not have been relevant to the court’s determination of whether a reasonable apprehension of bias exists. [ 32 ] Mr. Wool’s theory of the case -- that there is a conspiracy between Crown counsel and the RCMP who investigated Mr. Martin’s alleged conduct to cover up the police conduct -- is also not relevant to the court’s determination of whether a reasonable apprehension of bias exists. I have not considered Mr.

Wool’s theory or his submissions in that regard in this ruling. Position of the Crown [ 33 ] Mr. Mann opposes Mr. Martin’s application. He submits that I should not be recused because Mr. Martin has failed to establish a reasonable apprehension of bias. I will discuss the

summary of Mr. Mann’s submissions under the following headings: Failing to recognize a constitutional violation – an improper guilty plea [ 34 ] Mr. Mann submits that the court exercised its proper discretion when it asked that Mr. Martin to file an application to a judge to withdraw his guilty pleas and the Crown file its response before the hearing was scheduled rather than accept at face value Mr. Wool’s submissions that Mr. Martin’s guilty plea was improperly recorded. [ 35 ] Mr.

Mann submits that the court’s role is manage these proceedings; to move matters forward expeditiously; and, to ensure that these proceedings are fair to everyone, including the Crown. A hearing of an application would allow the Court to consider evidence from both the accused and the Crown and consider their legal arguments about guilty plea withdrawals before determining whether Mr. Martin’s plea was taken improperly; rather than simply relying on defence submissions to strike the plea in the face of opposition from the Crown. Mr.

Mann submits that the latter process “would have been an improper thing for the court to do”. [ 36 ] Mr. Mann submits that the court did not displace its impartiality. Mr. Mann submits that a reasonable person, in these circumstances where the court did not make a

summary judgment or summarily grant the application to withdraw the guilty plea before an application was made or before evidence was heard, would not find that a reasonable apprehension of bias exists. The trial judge created a reasonable apprehension of bias by acceding to an unfair prosecution demand and ordering the accused to disprove the validity of the guilty plea. [ 37 ] Mr. Mann disagrees with Mr. Wool’s characterization of the Court’s direction to Mr. Martin. Mr. Mann submits that on prior occasions that Mr. Martin was before the court, judges were correct in law by informing Mr.

Martin that if he wanted to withdraw his guilty plea that he has the burden to prove that the plea was not voluntary, or that it was not informed, or that it was equivocal. There is no suggestion that any judge has said there will be a displacement of silence. Mr. Martin was told that if he wishes to have his plea withdrawn, he has the burden of proof so he must “take positive action” and bring an application to a judge to have his guilty plea withdrawn. The impartiality and independence of court was compromised when Crown counsel sent materials to the trial judge out of court. [ 38 ] Mr.

Mann submits that the impartiality and independence of the court was not compromised when Crown counsel sent materials to the judge on June 28, 2021, prior to the hearing of the matter because before the pre-trial conference in [omitted for publication] the Court had ordered these materials to be filed in advance of the scheduling of the hearing. [ 39 ] Mr. Mann states that these materials were sent to the court in late June in anticipation of the Vukelich application scheduled to be heard on July 7. He was surprised that Mr.

Wool had not received notice of the Vukelich application, as it was Crown’s response to Mr. Martin’s application to withdraw his guilty pleas. Mr. Mann understood that the court had reviewed these materials prior to the July 7 court appearance. [ 40 ] Mr. Mann submits that he was following proper procedure for sending documents to the court in advance of a pre-trial conference and there is no impropriety in these materials being sent.

While this procedure was mandated during the COVID pandemic protocols for pre-trials so that the pre-trial judge would be able to review the materials in advance, he forwarded these materials because he wanted to the assigned remand court judge to have that same ability to review them in advance of the pre-trial conference. [ 41 ] Mr.

Mann submits that in looking at the context of what’s going on here, a busy [omitted for publication] list day with a judge asked to …give directions on how a Vukelich application is going to work out for a complicated and longstanding application to withdraw a guilty plea, in that context it’s completely reasonable to expect that it makes more sense for the judge to have access to the materials that are already in the court file, materials that have already been discussed before the court. [ 42 ] Mr. Mann relied on two cases, R v. Keller, 2020 BCPC 148 , and Taylor Ventures Ltd. (Trustee of) v.

Taylor, 2005 BCCA 350 , which outline the applicable principles for the test of reasonable apprehension of bias, to support of his argument that Mr. Wool has failed to establish reasonable apprehension of bias exists in this case. Mr. Mann also relied on an email dated June 28, 2021, marked as Exhibit 3 in these proceedings. PREVIOUS PROCEEDINGS [ 43 ] Before assessing the merits of this application, I find it helpful to set out a

summary of the history of the proceedings involving Mr. Martin’s criminal matter before the court. From my count there have been over 20 court appearances since February 19, 2019. [ 44 ] My

summary of the proceedings is based on the review of transcripts entered as Exhibit 1 in this hearing and the records of proceedings available to me on PCSS. I also accessed DARS for the May 25, 2021, and July 7, , 2021, appearances as counsel referred to these court appearances but did not provide the transcripts.

[ 45 ] On Information 35881-K-1 sworn February 4, 2019, Nathanel Martin was charged with: Count 1 Unlawful confinement of C.B.; Count 2 Assault of C.B.; and, Count 3 Uttering threats to cause death or bodily harm to C.B. These incidents were all alleged to have occurred on November 18, 2018, at or near [omitted for publication], B.C. Mr. Martin was placed on a police undertaking on November 19, 2018. [ 46 ] Mr. Martin’s first appearance in this matter was on February 19, 2019. [ 47 ] After several court appearances, on May 7, 2019, at the arraignment hearing, Mr.

Martin’s previous counsel, appearing by telephone, entered not guilty pleas to each count. The matter was adjourned to the judicial case manager to

schedule a one day trial. [ 48 ] On June 4, 2019, Mr. Martin’s previous counsel, appearing by telephone and as agent on behalf of Mr. Martin, entered guilty pleas to Counts 2 and 3. Mr. Martin was not in attendance at this court appearance. The matter was then adjourned by consent to the judicial case manager to

schedule a sentencing hearing for September 2019. [ 49 ] On October 1, 2019, when Mr. Martin’s previous counsel appeared in person for the sentencing of the matter, he informed the court that there was “an issue involving Mr. Martin’s willingness, or ability to enter into the pleas.” Mr. Martin’s previous counsel informed the court that a trial should be scheduled. The matter was then adjourned to

schedule a one day trial. [ 50 ] A trial was set for January 8, 2020, but then was subsequently rescheduled to May 7, 2020. It did not proceed on May 7, 2020. [ 51 ] On September 15, 2020, the matter proceeded to a pre-trial conference. At the pre-trial conference, the judge confirmed the record of proceedings indicated Mr. Martin had been found guilty. The pre-trial conference judge also noted that it was not clear whether previous counsel for Mr. Martin had made an application to withdraw the guilty plea on October 1 and it was granted but not recorded, or whether counsel had forgotten Mr.

Martin had entered guilty pleas. The matter was adjourned to September 23, 2020, to allow counsel to consider their positions. [ 52 ] On October 6, 2020, Mr. Martin’s previous counsel appeared and removed himself as counsel of record. Mr. Martin was not in attendance and a bench warrant hold was ordered. [ 53 ] On November 3, 2020, Mr. Martin attended court without counsel and informed the court that he wished to withdraw his guilty pleas. The Crown opposed the withdrawal of the guilty plea. Mr.

Martin was directed by the Court to file an application to withdraw his guilty pleas by December 1, 2020. [ 54 ] On December 1, 2020, Mr. Wool appeared with Mr. Martin and adjourned the matter to January 5, 2021, in order to consult with Crown counsel about the application to withdraw the guilty pleas. [ 55 ] At a subsequent pretrial conference held on March 26, 2021, Mr. Mann and Mr. Wool appeared and sought direction on how to proceed with the defence application to withdraw Mr. Martin’s guilty pleas.

The pre-trial conference judge directed counsel to set an hour before the Judge who took the plea, and to seek directions on how the application should proceed. [ 56 ] On May 12, 2021, Mr. Mann and Mr. Wool appeared before me to seek direction on how to proceed with an application to a judge to withdraw a guilty plea. After hearing submissions, I reserved and then provided my directions on May 25, 2021.

In those directions, I found that the cases relied on by the Crown, while not instructive on the procedure to be followed by the provincial court, did confirm that the evidentiary burden is placed on the accused and is to be provided in the form of testimony or affidavits. [ 57 ] I then directed Mr. Wool to file an application to withdraw the guilty pleas in addition to filing written submissions and affidavit evidence by June 8, 2021. [ 58 ] I directed Mr. Mann to file his submissions and provide a copy to Mr. Wool by June 22, 2021. [ 59 ] I also directed that a hearing of Mr.

Martin’s application be adjourned to the JCM on June 30, 2021 to

schedule a 2-hour hearing. [ 60 ] I further directed that if the Crown consents to the withdrawal of the guilty plea, the matter must be set for an arraignment hearing to enter a not guilty plea and to confirm the length of trial. Then the trial could be set. Failure of Mr. Martin to file these materials, could only result in the guilty pleas standing and it would then be required that the matter be set for a sentencing on June 9, 2021. [ 61 ] On July 7, 2022, the Crown appeared in Williams Lake before me to speak to their application to a judge for a

summary dismissal of Mr. Martin’s application to withdraw a guilty plea. Crown sought a Vukelich hearing on the grounds that Mr. Martin’s application lacked factual evidentiary foundation and that the application did not address the legal test for a guilty plea withdrawal. [ 62 ] Mr. Wool submitted that he did not receive notice of this application. After a lengthy discussion, I directed that the Crown’s application be scheduled in [omitted for publication] for a Pre-trial conference to determine whether the Crown’s application for

summary dismissal should proceed and a hearing date for that application be scheduled depending on the outcome of the pre-trial conference, followed by the hearing date for the application to a judge for withdrawal of the guilty plea. [ 63 ] The date of July 21, 2021, for the hearing of Mr. Martin’s application to withdraw the guilty plea was inadvertently scheduled so, with consent of counsel, I cancelled this date and adjourned the matter to the JCM to

schedule a new date.

CASE LAW [64] The cases provided by counsel are helpful as they explain the governing principles to be considered in determining whetherMr. Martin has established that a reasonable apprehension of bias exists. While each of these cases can be distinguished on its facts, myanalysis rests on the specific facts of Mr. Martin’s case. [65] Frank involves circumstances where the judge declared a mistrial and recused herself as a judge at Mr.

Frank’s trial on chargesof impaired driving due to her interference in the Crown’s case during the trial, which precluded a no evidence motion. [66] In this case, the Crown asked the police witness a series of questions based on events that occurred on December 29th rather than October 29th, the date of the alleged offences. The judge intervened by questioning the Crown and their witness, stating: “29th of December?” at which point the Crown realized their mistake and asked the witness: “Oh, the 29th of October?” [67] The Court relied on a number of authorities, R. v. Valley, (ON CA), and Yuill v.

Yuill, [1945] 1 E.R. 183(C.A.) at 185, which determined that in a criminal trial a judge is not to insert themselves during direct or cross examination so not toappear to favour one side or the other. The court also relied on the principles of the test for apprehension of bias as outlined by theSupreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 SCR 259. [68] In St. Andrassy the BC Supreme Court quashed the conviction of the trial court because it found that the judicial independence;the ability of the court to render a decision without outside influence, was compromised.

In this case, the Crown sent the judge out ofcourt communications, including further case law, after the conclusion of closing submissions and before the judge had rendered theirtrial decision. Crown counsel in this case argued that the defence could have provided his own summation of the evidence to the court,however the BC Supreme court did not agree. [69] This court stated at para. 23: . . .

It is not appropriate for counsel to make submissions to a judge (whether intended in all good conscience to be helpful or otherwise)outside of the courtroom unless such submissions have been invited by the judge or it has been agreed by all the parties to the trialconcerned that that is the process that will be followed. [70] The court went on to say that counsel cannot remove an essential part of the trial process out of the public view by embarkingupon private communications between himself and the trial judge.

The court found that these impugned actions offended thefundamental principle that proceedings must occur in open court to ensure that justice is done and must be seen to be done. The court atpara 24 cited Chief Lord Hewart in Rex v.

Sussex Justices Ex Parte McCarthy (1924) 1 King’s Bench 256 at p.259: But while that is so, a long line of cases show it is not merely of some importance but is of fundamental importance that justice shouldnot only be done, but should manifestly and undoubtedly be seen to be done . . . nothing is to be done which creates even a suspicion thatthere has been an improper interference with the course of justice. [71] In Bertucci, the Crown sought an order in the nature of mandamus to compel the provincial court trial judge to sentence theaccused after the declaration of a mistrial.

In the provincial court proceedings, the trial judge declared a mistrial as a result of the RCMPsending an unsolicited letter which made representations about the accused directly to the judge without providing the accused and hislawyer a copy before the sentencing hearing. The Court of Appeal dismissed the Crown’s application because they agreed with thedecision of the trial judge. At para 15, the Court states: There is ample evidence to support his conclusion that he had good and sufficient reason to disqualify himself and declare a mistrial.

Anaccused person would, in the circumstances of this case, have a reasonable apprehension of bias even if counsel had every confidence inthe impartiality of the presiding judge. To view the matter in any other light would be a disappointing exercise in judicial illusion.Indeed, to impose sentence under these circumstances would be tantamount to committing an error of constitutional dimension. [72] The Court at para 17 explained: The learned provincial court judge immediately recognized that the integrity of our judicial system rests on both the reality andappearance of propriety.

His judgment displays a clear and commendable appreciation of this cardinal principle. There can be no doubtthat improper lobbying whether by letter or word of mouth could undermine confidence in the court’s integrity, indeed, in the wholejudicial system--especially if persons coming before the court feel that senior police officials have the apparent right to communicateprivately with the court prior to the imposition of sentence. The rules to be followed in the sentencing process are set forth inR. v.

Gardiner, supra, and should be observed with scrupulous care by all involved in the sentencing process [73] In Taylor Ventures Ltd (Trustee of) v. Taylor the appellant applicant sought the recusal application on grounds that the trial judgeseized himself, acceding to a request of the respondent that he assign himself of all matters in relations to the affairs of Taylor Venturesand the trial judge had prior judicial involvement in their bankruptcy proceedings.

The court relied on the test for apprehension of bias asset out in the leading Supreme Court of Canada case on recusal, Wewaykum Indian Band, to determine that a reasonable apprehension ofbias did not exist. [74] In response to the concern that the judge would transpose evidence from one proceeding to the trial, the court stated at para 9: Any reasonable, well informed person would accept the judge’s assurance that he would decide the case only on the evidence admittedat the trial.

This duty is so basic to the judicial function that the appellant’s concerns amounts to nothing more but groundless suspicion. [75] In R. v. Keller, the applicant argued that the trial judge’s ability to adjudicate the criminal trial was compromised because thesame judge heard earlier family proceedings involving the applicant and issued an order adverse to the accused. The court observed theaccused’s right to be heard by an independent and impartial judge is a constitutionally protected right.

[76] The Supreme Court of Canada set out the test for reasonable apprehension of bias in Committee for Justice and Liberty v.

Canada(National Energy Board), (SCC), [1978] 1 SCR 369 at p.394: . . . 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 . . . that test is “what would an informed person, viewing the matter realistically andpractically—and having thought the matter through—conclude. [77] In Keller, Cutler, R., P.C.J., stated that he also noted this test has consistently been endorsed by the Court and was recentlyreaffirmed in Yukon Francophone School Board, Education Area #23 v.

Yukon (Attorney General), 2015 SCC 25. [78] The court in Keller went on to clarify the applicable principles in allegations of bias further at para 7: [7] Critical to the analysis is a presumption of integrity that applies to trial judges who have sworn to execute their duties impartially.Any allegation of a reasonable apprehension of bias must overcome the strong presumption of judicial impartiality, Wewaykum IndianBand v. Canada, 2003 SCC 45. Our Court of Appeal provided a

summary of the principles governing a determination of a reasonableapprehension of bias in Taylor Ventures Ltd. v.

Taylor, 2005 BCCA 350 . . . [79] After review of jurisprudence related to a reasonable apprehension of bias, Judge Cutler determined that a reasonableapprehension of bias did not exist concluding that “judges are presumed and expected to disabuse their minds of such information andrender a verdict based on relevant admissible evidence presented during the criminal trial.” LEGAL PRINCIPLES [80] As stated earlier, the above cases provide the applicable guiding legal principles in an application for recusal. In determiningMr. Martin’s application for recusal.

I have also considered the following applicable legal principles. [81] At the heart of the Canadian justice system is the independence of the judiciary. Confidence in the justice system is maintainedby judges rendering decisions based on law and evidence submitted in accordance with their conscience without any outside influence orinterference of others.

The right to be tried by an independent and impartial tribunal is a fundamental principle of justice protected by theCanadian Charter of Rights and Freedoms. (see: Ethical Principles for Judges, https://cjc-ccm.ca/sites/default/files/documents/2021/CJC_20-301_Ethical-Principles_Bilingual_Final.pdf, accessed May 10, 2022) [82] Impartiality is defined by the Supreme Court of Canada in R. v.

S. (R.D.), (SCC), where Justices Cory andIacobucci, writing for the majority, stated: 104 . . . impartiality can be described -- perhaps somewhat inexactly -- as a state of mind in which the adjudicator is disinterested inthe outcome, and is open to persuasion by the evidence and submissions. 105 In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard toparticular issues. . . [83] There is a strong presumption of judicial impartiality which can only be rebutted on substantial grounds.

Following the approachof the Supreme Court in Wewaykum Indian Band, the BC Court of Appeal in Sandhu v. Household Realty Corporation Limited, 2012BCCA 133, Justice Hinkson stated: [20] There is a strong presumption of impartiality in a judge. An allegation that a judgment may be tainted by bias or by a reasonableapprehension of bias is most serious. That allegation calls into question the impartiality of the court and its members and raises doubt onthe public's perception of the court's ability to render justice according to law. [84] In R. v.

Werner, 2005 NWTCA 5, the Northwest Territories Court of Appeal at para 14 discusses the test to displace judicialimpartiality: . . . Would the reasonable, right-minded and properly informed person, viewing the matter realistically and practically, think that there isa real likelihood or probability of bias so as to render the trial unfair? This test for recusal has been restated time and again as the sole test: R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484;Wewaykum Indian Band v.

Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259. [85] The principles governing recusal and reasonable apprehension of bias are summarized in Taylor Ventures Ltd. by Justice Donaldwriting for the court: [7] The leading case on recusal is Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259. Counsel forthe respondent correctly identified the principles governing the reasonable apprehension of bias concept as discussed in Wewaykum and Iquote from his factum: 7. These principles are: (

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, conclude;

(

v) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that 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; (vii) each case must be examined contextually and the inquiry is fact-specific. [Emphasis in original.] [ 86 ] The threshold for determining actual or apprehended bias is a stringent test and is not to be undertaken lightly.

The test for bias is explained by the McParland, M.F., P.C.J., in R. v. Carlson , 2018 BCPC 209 , at para 14 : [14] The test for bias is an objective test and is not based on the subjective views of the litigant or his counsel. It focuses on the perception of a reasonable person apprised of all the circumstances. The Supreme Court of Canada cautioned that “Counsel who appear in criminal courts, whether prosecuting or defending have to be robust. They must be prepared to take the knocks and misfortunes of advocacy.

One of the things with which counsel must learn to cope is the judge who is not being entirely fair to them.” [ 87 ] Despite the need to be robust, counsel should also not hesitate to raise the issue of recusal to assist the court in determining whether an apprehension of bias exists based on the facts. These applications for recusal must have some evidentiary basis to them and they should not be used to judge shop. Justice Goberman, writing for the Court of Appeal in R. v. Anderson , 2017 BCCA 154 , offers these observations about recusal applications at paras 15 to 17: [15] Several years ago, in De Cotiis v.

De Cotiis , 2004 BCSC 117 , when faced with an application that I recuse myself, I noted the role of counsel on an application for recusal, and emphasized that counsel should not be hesitant to argue that a reasonable apprehension of bias exists where there is some basis for the argument: [13] Some counsel have advised me that while they themselves do not have an issue with me hearing the matter, their clients do. With all due respect, the issue is not one of the preferences of a litigant; it is, rather, a matter of applying the legal test of whether there is a reasonable apprehension of bias to the facts.

Counsel should not be hesitant in arguing that such an apprehension exists – to do so is not in any way disrespectful of the judge; rather it is helping to determine whether or not there is a reason for recusal. On the other hand, if there is no reasonable basis for any apprehension of bias, a client’s preference that a judge not sit is not of any moment. [16] Where allegations of bias are patently unfounded, counsel should not apply to have judges recuse themselves.

Spurious allegations of bias against members of the judiciary can serve no purpose other than to cast doubt on the legitimacy of legal institutions and bring the administration of justice into dispute. [17] In D e Cotis , I also noted that a judge has a duty to reject unfounded applications for recusal: [9] The awkwardness of the situation and the importance of the court avoiding any appearance of bias lead the court to err, if at all, on the side of caution in these matters. That is, in my view, a salutary position. [10] There is, however, another aspect of these matters that must not be forgotten.

It is the duty of a judge to hear cases that come before him or her, and a party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is able to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice into disrepute. ANALYSIS [ 88 ] The issue to be determined, based on the specific facts of Mr.

Martin’s case, is whether I ought to recuse myself from hearing the trial because of a reasonable apprehension of bias. In my analysis, I must determine whether the presumption of impartiality has been displaced by the evidence in the context of these proceedings to determine whether an apprehension of bias exists.

The test is based on whether an informed, reasonable, and right-minded person viewing the matter with knowledge of the relevant circumstances, including the integrity of the Court to remain impartial, would conclude it more likely than not that I would, consciously or unconsciously, not decide the trial fairly. [ 89 ] In this case, Mr. Martin alleges that I directed him to file an Application To A Judge to withdraw his guilty plea while knowing that an improper guilty plea was entered without his presence. [ 90 ] Through Mr. Wool, Mr.

Martin argues that when I made this direction, I acceded to the demands of the prosecution and ordered him to disprove the validity of guilty pleas that he was not party to. [ 91 ] Through Mr. Wool, Mr. Martin argues that when I made this order, I violated Mr. Martin’s right to silence. [ 92 ] Lastly, through Mr. Wool, Mr. Martin argues that my impartiality and independence was compromised when Crown counsel sent materials to me out of court. [ 93 ] In this analysis, I find it important to remind Mr.

Martin that I have been acting in the capacity of the pre-trial judge with respect to his matters before the court. I am unaware if I will be the judge who will be assigned to any or all of Mr. Martin’s matters other than the matters I have been assigned to date. Unfortunately, his matters have not advance beyond the pre-trial stage. [ 94 ] I am not the judge who accepted the guilty pleas and, even if I were, it is not appropriate for me to be concerned in this application about what may or may not have occurred on the day that the guilty pleas were entered on Mr. Martin’s behalf.

That determination is outside the scope of these proceedings. [ 95 ] In my role as the pre-trial judge, I am tasked with ensuring that Mr. Martin’s matters proceed in a timely manner and the

proceedings are dealt with fairly. This is not to say that the pre-trial judge departs from a high standard of judicial impartiality and independence but only to draw the distinction for Mr. Martin that I am not making any determinative findings that decide the outcome of any of his matters before the court; rather I am making decisions in my role as a case manager. [ 96 ] I will now address the first two grounds of the allegation of bias. As I stated earlier in this ruling in my review of court proceedings, Mr.

Martin’s matters were scheduled before me on May 12, 2021, to provide direction to counsel because counsel could not agree on how to proceed with an Application To A Judge to withdraw a guilty plea. [ 97 ] On May 25, 2021, after considering their submissions, I gave direction for Mr. Martin to file an application, and then for Crown counsel to file their reply. Once the reply was filed I directed counsel to set a hearing date for that application. [ 98 ] Although Mr. Wool, who appeared as an agent for Mr.

Martin, asserted his reasons why the court should not allow the guilty pleas to stand at of both of these pre-trial appearances, it would have been contrary to procedural fairness and call into question the integrity of the administration of justice to simply “strike the guilty pleas” without any evidence when Crown counsel was opposed. [ 99 ] It is trite law to say that counsel submissions are not evidence. If Crown counsel had agreed to withdraw their objection to withdrawal of the guilty pleas, then I would have been in a better position to consider Mr.

Wool’s request. [ 100 ] Turning now to the second ground of the allegations: that I created a reasonable apprehension of bias by acceding to an unfair prosecutorial demand in ordering the accused to disprove the validity of the guilty pleas that he was not a party to and thus requiring the accused to give up his right to silence. Mr. Wool argues that I acted similar to the judge in Frank, when I gave the Crown assistance by acceding to the Crown’s objection to withdraw Mr. Martin’s guilty plea and directing Mr. Martin to proceed to the Vukelich hearing and then to a hearing to withdraw his guilty pleas.

I disagree with Mr. Wool’s argument on this point. The matter was before me as a pre-trial judge, not a trial judge, to provide both counsel with direction on how to proceed with Mr. Martin’s Application To A Judge to withdraw his guilty pleas.

I did not interfere with the trial proceedings by giving direction to both counsel on the procedure to be followed in these circumstances. [ 101 ] Upon review of DARS for May 25, 2021, I note that I informed counsel that if the Crown consents to the withdrawal of the guilty plea, the matter must be set for an arraignment hearing to enter a not guilty plea and to confirm the length of trial. Then a trial could have been set. I also stated that “failure by Mr.

Martin to file these materials, could only result in the guilty pleas standing and the matter would have to be set for a sentencing on June 9, 2021.” In saying this, I was informing Mr. Wool of the consequences should he not file his application in time. [ 102 ] It appears on the face of it, that Mr. Martin is not in agreement with my decision on May 25, , 2021, and saw his only recourse was to file an application that I recuse myself. [ 103 ] Regardless of whether I recuse myself or not, I am of the view that Mr. Martin will be required to file an Application To A Judge .

Without filing an Application To A Judge , I am not aware of any other way that Mr. Martin could present to the court his case as to why he believes that his guilty pleas should be withdrawn. A hearing on this matter provides both Mr. Martin and Crown counsel to present to a judge their respective arguments based in law and supported by evidence to advance their respective positions. [ 104 ] Such directions about process and procedure must be followed unless there is contrary process or procedure. In Mr. Martin’s circumstances, counsel did not submit there was an alternative process or procedure.

In my view, the direction on May 25, 2021, was within the scope of my jurisdiction as the pre-trial judge and does not displace the presumption of impartiality. The role of the provincial court in managing its proceedings was recently discussed by Flewelling, P.C.J., in Sterritt v. Governor General of Canada, 2019 BCPC 123 , at para 16 : . . . However, I would go further and find that this Court also has jurisdiction to ensure that legal matters and cases proceed in an expeditious, orderly, just and dignified manner.

Were it otherwise, this Court would simply be at the mercy of any litigant who wishes to bring any matter into court and in any manner. That would be an unacceptable fettering of a Judge’s ability and duty to control the court process, to ensure that the Provincial Court is not used in a manner that is vexatious or an abuse of process and that if allowed to proceed would bring the administration of justice into disrepute [citations omitted] [ 105 ] In regard to the first two grounds of the allegation of apprehension of bias advanced by Mr.

Martin, I am satisfied that there is no reasonable apprehension of bias in Mr. Martin’s case. In my view, in these circumstances, as the pre-trial judge in the face of no agreement and no evidence about whether Mr. Martin’s guilty pleas should stand or be withdrawn I find I exercised my discretion to decide what procedure was to be followed. In these circumstances the proper course of action was to direct the parties to a hearing.

At the same time, I also recognized that there was still an opportunity for a resolution on the issue and if this occurred, I directed counsel to proceed then to an arraignment hearing. [ 106 ] Judges often make decisions that counsel do not agree with, however that alone does not establish a reasonable apprehension of bias nor does it displace the presumption of judicial impartiality. As Justice Robertson commented in R. v. Moya, 2021 SKQB 128 : [19] Judges hear argument and make decisions. Usually someone is disappointed with the decision. Sometimes both parties.

Disappointment or disagreement with decisions does not establish bias. [ 107 ] In regard to Mr. Martin’s third ground of the allegation of apprehension of bias, that my impartiality and independence was compromised when Crown sent materials to me, out of court, and without consent of counsel or the accused, I am not satisfied in Mr. Martin has established on the evidence that the presumption of impartiality has been displaced. Accordingly on this ground I find no reasonable apprehension of bias exists. [ 108 ] In the case authorities relied on by Mr. Wool, in Bertucci , similar to St.

Andrassy , the facts involve situation of direct out of court communication with the judge prior to sentencing in an effort to influence the sentencing decision. The higher courts found that in those circumstances that a reasonable apprehension of bias existed. However that is not what happened in Mr. Martin’s case and these cases

can be distinguished accordingly. [ 109 ] In my view, the email sent on July 28, 2021, by the Crown counsel to the Judicial Case Manager which copied Mr. Wool, was not sent to influence my decision on August 3, 2021. Rather, Crown counsel sent this email to the Judicial Case Manager and to Mr. Wool directing that the email with the Crown’s application, supporting materials and Mr. Wool’s application to the pre-trial conference judge so that they could familiarize themselves with the applications in order to be prepared when counsel appeared before them at the pre-trial conference. Contrary to Bertucci and St.

Andressy , these materials sent by the Crown were not sent to influence the decision of the presiding judge. [ 110 ] In Mr. Martin’s case, there had not been a hearing meaning where I heard any evidence or submissions on the applications.

Had I not received these materials, prior to counsel’s appearance in [omitted for publication] on August 3, 2021, I would have had access to the same materials in the court file because they would have been the same materials that I directed counsel to file on May 25, 2021, and the same materials that were in the court file on July 7, 2021. [ 111 ] Certainly it has been my experience that counsel, including Mr. Wool, have provided me copies of their application, an outline of their submissions, or outline of argument and their case law in advance of hearing their respective applications.

Sending applications with or without included materials to a judge either through the court registry or the judicial case manager in advance of a hearing is common practice, is permissible, and is often done without a request by the hearing judge. The important distinction is that these materials are submitted in advance of hearing to assist the judge in preparing for the hearing and not to influence the decision. It would be improper for a judge to render a decision without consideration of the evidence and counsel submissions.

DECISION [ 112 ] While I am mindful that I have the option to recuse myself regardless of the merits of the recusal application, it is not a course of action encouraged for a number of reasons as explained by Justice Robertson in Moya : [9] Even if the judge does not believe there are grounds to establish a reasonable apprehension of bias, a judge may still choose to step aside, referred to as recusal, to avoid the controversy and preserve confidence in the courts and the administration of justice.

In Patel, at para 21 and paras 90-95, Scherman J. stated some of the concerns with stepping aside as “the path of least resistance”: [21] In Ethical Principles for Judges , published by the Canadian Judicial Council, s. E.19 (at pp 51-52), makes the observation that judges should not withdraw unnecessarily from cases as to do so adds to the burden of his or her colleagues and contributes to the delay in courts.

This consideration is heightened following the COVID-19 pandemic, the partial shutdown of the courts and a significant backlog of cases and applications for the courts to deal with in circumstances where this court is further handicapped by inadequate judicial appointments. . . . [94] There are two aspects to efficiency considerations – the long-term impact and short-term or case-specific impacts.

Efficiency in the administration of justice is served by the Chief Justice being able to appoint judges whom he decides are in the best position to deal with the matter considering existing workloads, outstanding commitments of judges, their ability to provide a timely decision, such expertise or special knowledge as the judge may have and other relevant factors. [95] It is obviously not in the interests of the efficient administration of justice or the public’s perception of impartiality that parties be permitted to “judge shop” or to permit litigants to eliminate judges they do not want by bringing recusal applications accompanied by a tactic of throwing enough mud against the wall to drive a judge away.

Requests of a judge to recuse herself or himself should be based on legitimate principled concerns as opposed to litigation tactics. … [ 113 ] In consideration of these factors, I am not prepared to recuse myself or step aside in order to avoid the controversy and preserve the confidence in the courts and the administration of justice. [ 114 ] Based on the evidence considered in this application, counsel submissions and for the reasons discussed above, I find that Mr.

Martin has not established on any of the grounds asserted that my presumption of impartiality has been displaced in these proceedings. [ 115 ] I do not find that Mr. Martin has established that an informed, reasonable, and right-minded person viewing the matter with knowledge of the relevant circumstances, including the integrity of the Court to remain impartial, would conclude it more likely than not that I would, consciously or unconsciously, not decide the trial fairly. [ 116 ] Accordingly, I dismiss Mr. Martin’s application for recusal. ___________________________ L.

Thomas, PCJ Provincial Court of British Columbia