R. v. John, 2018 BCPC 131

Citation: R. v. John 2018 BCPC 131 Date: 20180517 File No: 66888-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CINDRA LEE RENEE JOHN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Crown: Wray, M. Counsel for the Defendant: Petri, D. Place of Hearing: Chilliwack , B.C. Date of Hearing: May 2 and 17, 2018 Date of Judgment: May 17, 2018 [ 1 ] THE COURT : Ms. John has been charged with one count of assault that is alleged to have occurred back in July 23rd of 2017. She came before me for her first trial date on May the 2nd of this year, 2018.

[ 2 ] Before any evidence was called on the trial, the Crown made an application for me to recuse myself on the grounds that a reasonable apprehension of bias exists in this particular case. [ 3 ] Mr. Petri, for the defence, advised that he had been alerted to the issue by Crown that day, and he also takes the position that I should recuse myself. [ 4 ] To my knowledge I have not had any prior dealings with Ms. John or the charge that has been laid against her before she appeared before me on May the 2nd, 2018. [ 5 ] The factual background laid out by Crown is that the charge against Ms.

John was laid by counsel in the Chilliwack Crown office on September 11th, 2017. At that time, I was employed as the administrative Crown counsel in that same office and I was appointed to this court on November the 6th, 2017. [ 6 ] Crown advises that I did not approve the charge against Ms. John nor was I the lawyer who had conduct of the file in the office following the charge approval. There is nothing documented in the Crown file that would suggest I was involved in any decision making on the file. [ 7 ] Crown was fair in her submissions.

They are not alleging that I am in a position of actual conflict with respect to this matter but rather that a reasonable apprehension of bias arises from the fact that my tenure as administrative Crown overlapped in part with the life of Ms. John's file. [ 8 ] Crown also made submissions that the role of administrative Crown counsel is, to some extent, supervisory and involves consulting with other lawyers in the office sometimes in an informal manner that may not be documented in the Crown file.

On this basis, they say that despite the fact that I have no memory of the matter and despite the fact that there is nothing in the file indicating I had any involvement, it is possible that I may have unknowingly participated in decisions about the file. [ 9 ] The Crown's position is that the period of time between my appointment and my presiding over this trial is too brief to avoid a reasonable apprehension of bias in this case.

The Crown submitted that a period of one year may ameliorate the problem and counsel submitted that while the case law weighs against setting hard deadlines, the passage of four or five years would certainly be even more likely to cure any appearance of bias. [ 10 ] On behalf of his client, Mr. Petri advised that when the Crown raised the issue of potential conflict the morning of trial, he showed Ms.

John the disclosure letter with my signature on it and that she said “no”, in his words. [ 11 ] He submits that his client is a young woman, relatively unsophisticated, but that he explained to her that sometimes defence counsel or Crown counsel go on to become judges, as is the case with me.

However, his client was clear that she did not wish to proceed with me as the presiding judge. [ 12 ] Both parties have provided several cases that address the issue of the apprehension of bias and I have read and considered them. [ 13 ] The guiding appellate authority on the reasonable apprehension of bias is the Wewaykum Indian Bank v. Canada , 2003 SCC 45 . However, the principles flowing from that case were more recently summarized in Taylor Venture Ltd. v.

Taylor , 2005 BCCA 350 , at paragraph 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, and having thought the matter through, conclude [that there is a reasonable apprehension of bias]; 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. [ 14 ] Bias is defined as a predisposition to decide an issue in a certain way.

And in the Wewaykum case at paragraph 58, the Supreme Court restated the definition of bias from earlier decisions as: a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction.

Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. [ 15 ] In Wewaykum , the Supreme Court emphasized the seriousness of an allegation that a judgment may be tainted by bias or the apprehension of bias since such allegations call into question the impartiality of the court and its members and raises doubt on the public's perception of the court's ability to render justice according to law.

[ 16 ] At paragraph 76 of that decision, the court repeats that the standard on an apprehension of bias application must rest on serious grounds in light of the strong presumption of judicial impartiality and they cited Committee for Justice and Liberty v. National Energy Board case where Grandpré, J. said, "The grounds for this apprehension must be substantial and I refuse to accept the suggestion that the test be related to very sensitive or scrupulous conscience". [ 17 ] I will deal with these principles now in application to this case. I have categorized the concerns of the Crown in two categories.

The first is the role of administrative Crown counsel here in Chilliwack including the disclosure letter that they filed as an exhibit that bears my signature and the nature of practice in that office.

The second issues concern what is commonly referred to as the “cooling off period” since my appointment to the hearing of the trial. [ 18 ] With respect to the first category regarding the role of administrative Crown, the evidentiary basis that has been provided is a disclosure letter that is marked as an exhibit that was generated by the office and was sent under my name as a function of my administrative duties at the time.

The balance of the evidence the Crown relies on was provided through their submissions in which they acknowledged that this letter does not mean that I ever read the file or participated in decisions related to it. [ 19 ] In my view, this is distinguishable from a case like Wewaycum where actual participation by the then lawyer in a supervisory role was established and, in particular, I would refer to paragraph 19 in that decision where the court detailed Justice Binnie's involvement in the matter as a lawyer: ... a number of internal memoranda to, from or making reference to Binnie and related to Campbell River’s claim.

These memoranda show that in late 1985 and early 1986, Binnie, in his capacity at that time as Associate Deputy Minister of Justice, received some information and attended a meeting in the early stages of Campbell River’s claim.

The evidence that was led on behalf of the party alleging the bias is outlined in paragraphs 28 through 45 of that decision, and it is extensive. [ 20 ] In submissions, Crown did not argue that in my role as administrative Crown, that I did consult in a supervisory capacity on this file, but rather that I may have consulted with other lawyers about the charge assessment or that I may have been involved in decisions about which witnesses could testify. I found guidance on this issue in the case of R. v. Melnichuk , 2004 BCCA 332 .

This was a recusal application where the judge had been Crown counsel in the same Crown office at the time that the prosecution against the accused was commenced. The Court of Appeal upheld the trial judge's finding that there was no apprehension of bias warranting recusal. [ 21 ] In Melnichuk , the judge's tenure as Crown overlapped with the life of the accused's file for 17 months and it was complex litigation. In this particular case we are dealing with a

summary conviction assault trial that was scheduled for two hours and I was in the office for approximately two months after the charge was laid. [ 22 ] The court in Melnichuk also considered the fact that the office the judge had worked in was a busy Crown office where she would have dealt with hundreds of files. While no submissions were directly made with respect to this issue of volume, the Crown's position, essentially, is that I would have had passing knowledge, albeit now forgotten, of a great number of files in the Chilliwack office, not only those that I personally worked on.

In that sense I would say that the present case is similar to Melnichuk in terms of the volume of work that would have passed over my desk. [ 23 ] Part of the grounds asserted by the accused on the Melnichuk appeal was that the judge had worked in a Crown counsel office that was "integrated and homogeneous and, accordingly, an inference ought to be drawn that counsel shared confidences". It was also argued that the judge's prior association with the Crown office in question was not fleeting.

The Court of Appeal did not find that these grounds raised a reasonable apprehension of bias in the circumstances of that case. [ 24 ] I find that the Crown's position in the case at bar essentially amounts to the same submission made in Melnichuk .

That is, that the nature of the communications between Crown in the Chilliwack office may have resulted in my exposure to the file without being documented. [ 25 ] I appreciate that in the Melnichuk case the judge had not served as administrative Crown but rather trial Crown but, in my view, the evidence the Crown relies on here does not substantially change that result. [ 26 ] The case law suggests that something more is required than asserting generally that an administrative Crown would be in conflict on any file generated in the office during her tenure.

There needs to be a link, in my view, between the supervisory role and bias that could reasonably be inferred from it, and I think that is the importance of distinguishing Wewaycum where evidence was led about the ways in which Justice Binnie participated in his supervisory role in the file. [ 27 ] In the circumstances of the case at bar, the suggestion that there was a potential for me to have had conversations, so informal and ephemeral as to be not noted in the file, with the lawyers who were ultimately making the decisions on the file over a very brief period that my tenure as Crown overlapped with the life of the file, is not sufficient to establish that a reasonable and informed person who understands the gravity of the judicial oath of office could perceive that I am consciously or unconsciously more likely to favour the prosecution in this case. [ 28 ] The presumption of impartiality is a strong principle running through the cases in this area of law and a fact specific foundation needs to be established in order to displace it. [ 29 ] The Crown alluded to the fact that it was the very dearth of evidence regarding my possible involvement of the file that led them to frame this application as a reasonable apprehension of bias as opposed to actual bias.

On this I point to paragraph 66 in the Wewaycum decision which says that apprehension of bias is not "an evidentiary device to establish the likelihood of unconscious bias". [ 30 ] Finally, I would note that this recusal application was initiated by Crown so there is no foundation on which to suggest that Crown may have hoped to have benefitted in any way from my prior associations with their office.

[ 31 ] The second point is the issue of the period of time between my appointment and the hearing of this case. In the Melnichuk case, 17 months had elapsed between the judge's appointment and hearing the trial. That is a longer period than in the case at bar. It had been approximately six months between the time that I was appointed and the first day scheduled for Ms.

John's trial, approximately eight months from the time the charge was laid and even longer between that and the time of the alleged offence itself. [ 32 ] Although I have not relied on this in coming to my decision, the practical reality of having made this application on the day of trial is that even more time will have passed between my appointment and hearing the actual evidence in this case. [ 33 ] The Crown submits that the cooling off period, as it is sometimes referred to, is too brief and they referred me to several cases where judges have had much greater periods of time intervening in order to cure an apprehension of bias.

With respect, I find that the cases filed by the Crown are distinguishable on their specific facts. While the general principles are certainly applicable, the factual foundations are different. [ 34 ] Crown quite rightly says that the jurisprudence does not establish any firm timelines with respect to cooling off periods given how contextual the analysis is in cases of this sort. [ 35 ] The most helpful case I could find on this issue was R. v. Baldovi , [2016] MJ No. 330 and in this case the judge had been appointed from the Federal Crown three months before he reviewed the affidavit of a police officer for a

Part VI application on a file that had been generated in the same office where he had been employed as Crown. While the file was under consideration, or “in the office” during his tenure as a Crown, he was not personally involved in that file. He had, however, dealt with related files as Crown. [ 36 ] The issue in that case focused on the fact that there had only been a three-month cooling off period between the time the judge had worked in the Crown office and his involvement with the file as a judge.

While there is a significant difference in the fact that the judge in that case was not hearing a trial, there is some guidance in that decision regarding the unique considerations for cooling off periods when Crown counsel are appointed. [ 37 ] In R. v. Baldovi , the accused relied heavily on the commentary of the guidelines of the Canadian Judicial Council which made reference to a cooling off period. The court in Baldovi found that the CJC guideline made clear that the cooling off period would more obviously apply to a judge's former law partners, associates and clients.

And quoting from paragraph 60 of Baldovi: In other words, the recommended cooling off period has relevant application in the context of judges who come to the bench from private practice. The related concerns in the context of the former private practice relationship should be obvious. Those concerns relate to what may be an ongoing relationship with a previous private practice firm (financial issues etc.) and with the related complications and connections to former partners, associates and clients.

And at paragraph 61 of Baldovi , the court writes: Although the CJC’s guidelines acknowledge that where a judge practised for the government or Legal Aid the guideline cannot be applied strictly, the CJC does suggest that a sensible approach would be to not sit on cases commenced in the particular local office prior to the judge’s appointment. While this suggestion should be noted, its practical application will often be questioned, particularly in the case of former Crown attorneys.

Moreover, the suggestion is not easily reconcilable with the governing jurisprudence which has specifically addressed the issue of judicial involvement in matters emanating from the judge’s previous Crown office. [ 38 ] On this point of the difference between private practice and government lawyers, the court also referred to R. v.

Bagot , 2000 MBCA 30 , where the court said: ... care must be taken to avoid any erroneous application of the distinct “conflict of interest test” that regulates and attaches to a private lawyer... [ 39 ] In its conclusion the court in Baldovi ruled at paragraph 62 that a formal cooling off period associated with, and more applicable to, formal connections to private practice does not have an automatic application to all cases.

The court ultimately concluded that: ... the reasonable and informed person, in examining the circumstances of the present case, would recognize and appreciate the distinction between government practice and private practice.

That reasonable and informed person would also conclude that the absence of a so-called “cooling off period” for a former Crown can seldom be determinative. [ 40 ] Indeed, this kind of reasoning seems to be consistent with the B.C. experience where many former Crown, some in supervisory positions, have been appointed to sit in regions in which they practised with cooling off periods far lower than the CJC suggests for private practice lawyers.

This point that the cooling off period for former Crown can seldom be determinative of an application of this sort, is in line with the B.C. jurisprudence. [ 41 ] In Melnichuk , which I have referred to already, the court mentions the factor of the intervening time between the Judge`s appointment and hearing of the trial, but does not really scrutinize the 17-month gap between her appointment and hearing the trial. [ 42 ] Another B.C. case on that point is R. v. Alpha Manufacturing , 2009 BCJ 2169 at paragraph 25 .

This is another apprehension of bias case involving Crown counsel who was appointed to Provincial Court. While that particular case involved a much longer cooling off period than we are looking at here today, the court was really wrestling with the fact that the judge and the prosecutor had worked together in a relatively small and tight office at the New West Regional Crown at the time the file being heard was charged approved. [ 43 ] In concluding that no apprehension of bias arose in that case, the court cited the following paragraph from Boardwalk Reit LLP v. Edmonton (City) , 2008 ABCA 176 .

At paragraph 85 the court commented on the “ in the office” rule for former Crown prosecutors: Canada routinely appoints former Crown prosecutors as judges. Almost all were full-time government employees, in prosecutors’ offices

of varying sizes, some very small, some large. Canadian courts never disqualify such judges from hearing criminal trials which were “in the office” before they were appointed. If courts did, many Provincial Court judges would have little to do the first few years after their appointment, and the chaos and delay in towns or cities with only one resident judge would be appalling. [ 44 ] My conclusion in this case, the case at bar with respect to Ms.

John, is that the separation of at least six months from being in the Chilliwack Crown office and the trial date is not sufficient on its own or in combination with the Crown's other arguments to meet the test for recusal. I am taking into account Ms. John's objection to my presiding over this trial and the submissions Mr. Petri made in that regard. The test in this case is whether a reasonably informed member of the public would have a reasonable apprehension of bias.

That means somebody who is well-informed, right-minded, practical and realistic and whether they would perceive that there is a real likelihood of bias based upon the fact that I was one of many prosecutors in a relatively busy Crown counsel office for a period of two months while Ms. John’s file was being handled by that office. [ 45 ] As a trial judge stated in Melnichuk at paragraph 6 : This prior professional association should not be considered in a vacuum.

The reasonable person would be informed that there is no suggestion that while I was at the Crown office I had anything to do with the file nor any discussions about the matter with other Crown counsel. The reasonable person would be informed that as a judge of this Court, I swore an oath to be impartial and have a duty to act on all matters in an impartial fashion.

The reasonable person would be informed that both as Crown counsel and as a sitting judge, I would deal with literally hundreds of files in any given month. [ 46 ] It may be tempting, in light of the defence position on this application, to say that out of an abundance of caution I should recuse myself. However, the case law warns against this standard as opposed to applying the test established in the jurisprudence. [ 47 ] In Makowsky v. John Doe , 2007 BCSC 1231 , at paragraph 17 , Justice Goepel of the B.C.

Supreme Court stated that when faced with an application for recusal: ... the natural tendency is to step aside and allow another judge to handle the case.

Such a course of action, however, conflicts with the judge’s duty to hear cases to which he [or she] is assigned. [ 48 ] Now, given that I have not been able to do this decision in writing, I will order a transcript, Madam Clerk, with respect to this matter today. [ 49 ] I realize we have just set aside only enough time for the decision today, so I will adjourn counsel to the judicial case manager to fix a new date for continuation. (REASONS FOR JUDGMENT CONCLUDED)