2018 QCCA 1845, 2018 QCCA 1845

Chemama c. R. 2018 QCCA 1845 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003561-185 (650-36-000290-185) MINUTES OF THE HEARING DATE : October 31, 2018 THE HONOURABLE MARIE-FRANCE BICH, J.A. (JB3828) APPELLANT ATTORNEY ERICH CHEMAMA ON HIS OWN BEHALF RESPONDENTS ATTORNEY HER MAJESTY THE QUEEN ATTORNEY GENERAL OF CANADA Mtre VIRGINIE HARVEY (Minister of Justice)

COMMISSIONER OF CORRECTIONAL SERVICE CANADA THE WARDEN OF REGIONAL RECEPTION CENTER INSTITUTION THE WARDEN OF STONEY MOUNTAIN INSTITUTION THE WARDEN OF MILLHAVEN INSTITUTION THE WARDEN OF THE PORT- CARTIER INSTITUTION THE WARDEN OF COLLINS BAY INSTITUTION THE WARDEN OF KENT INSTITUTION CLAUDIA GAGNON SASKATOON REGIONAL CENTER QUEBEC REGIONAL CENTER IMPLEADED PARTIES ATTORNEY HONOURABLE JUSTICE FRANÇOIS HUOT HONOURABLE JUSTICE ROBERT PIDGEON AMICUS CURIAE ATTORNEY PAUL SKOLNIK (ABSENT) Also present at the hearing : Mr.

Daniel Brodsky, by phone (Criminal Defence Lawyer) In appeal of a judgment rendered on August 1, 2018 by the Honourable Justice François Huot of the Superior Court, district of Mingan.

DESCRIPTION : 1. Notice of motion for appointment of counsel (684 and 672.24 (1) (2)

(3) C.cr .) 2.

Verbal motion for recusal CLERK : Rose-Marie Rousseau(TR1540) COURTROOM : 4.30 – VIDEOCONFERENCE HEARING 11 : 30 The appellant demands that Justice Bich recuses herself because she previously rendered two judgments dimissing his motions; The appellant alleges that Mtre Brodsky will accept the legal aid mandate if his motion for appointment of counsel is granted; Submissions by the appellant; Comments by Justice Bich; The appellant continues; 11 : 48 The appellant demands a panel of three justices of the Court of Appeal to hear his motion; 11 : 53 Mtre Harvey indicates that the Attorney General of Canada does not have any comment on the recusal matter; The appellant continues; 11 : 54 Mtre Harvey confirms that the motion for appointment of counsel is contested; 11 : 56 Recess of the hearing; 13 : 15 Resumption of the hearing; 13 : 15 Mtre Brodsky joins the videoconference; Comments by Justice Bich to Mtre Brodsky; 13 : 17 Discussion between the appellant and Mtre Brodsky; 13 : 21 Comments by Justice Bich; 13 : 23 Judgment on the motion for recusal; 13 : 28 The appellant alleges that he previously filed a complaint against Justice Bich before the Canadian Judicial Council and he reiterates his motion for recusal; Justice Bich indicates that she is not aware of such a complaint and has not been informed of its filing.

She asks why the appellant did not mention that fact earlier; The appellant answers that he thought that this fact was known by Justice Bich; He also alleges that the judgment on his motion for recusal is false and misleading in that the April 30, 2018 and May 2, 2018 judgments were not interlocutory judgments and that they deprived him of his fundamental rights; 13 : 33 Recess of the hearing; 14 : 05 Resumption of the hearing; The correctional officer responsible for the appellant during the videoconference hearing mentions that the appellant refuses to return to today’s hearing until the correctional officer allows him to make a special phone call to counsel; 14 : 07 Comments by Justice Bich; 14 : 10 Mtre Brodsky confirms that he will send to Mtre Harvey, by e-mail, a copy of the letter written on July 15th regarding his acceptance of the appellant’s mandate; Mtres Brodsky and Harvey both confirm their availability on November 14th, 2018; The motion is postponed to November 14th, 2018 before a judge of the Court; 14 : 15 End of the hearing.

(

s) Court clerk BY THE JUDGE JUDGMENT [ 1 ] Prior to the hearing of his motion for appointment of counsel, the appellant verbally asked that I recuse myself from his case. The reason for his motion is the following. [ 2 ] On April 30, 2018 and May 2, 2018, a panel of the Court rendered the two judgements attached hereto. I was a member of the panel which rendered said judgments. The appellant informed me that he sought leave to appeal from these judgments to the Supreme Court of Canada, together with other judgments of the Court in which I did not participate.

He alleged that he is the victim of a continuing abuse of process at the hands of authorities and that the Court, through these two judgments, colluded in this abuse. He submitted that my participation to these judgments gives rise to a reasonable apprehension of bias to the informed and reasonable observer, which renders me unfit to hear his motion for appointment of counsel. [ 3 ] I respectfully disagree.

The fact that I participated in two judgments that relates to an entirely different matter and that are now the subject of a motion for leave to appeal to the Supreme Court does not disqualify me from hearing the appellant’s motion for appointment of counsel. [ 4 ] According to the Supreme Court of Canada [1] , the apprehension of bias must be a reasonable one held by reasonable and right- minded persons, applying themselves to the question and obtaining thereon the required information.

The test is the following: what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude? In addition, such a person “is not a very sensitive or scrupulous” person [2] ; it is also a person familiar with the circumstances of the case [3] , who knows and understands the judicial process [4] .

Thus the applicable test is not that of the subjective opinion of the person who asks for the recusal, but an objective test, based on the reaction of the “reasonable person”, a standard well-known in law. [ 5 ] In the present circumstances, no such person could conclude to partiality or the appearance of partiality and the situation cannot create any reasonable apprehension of bias. [ 6 ] Judges are professionals and the fact that one of their judgments is under appeal (or may be eventually quashed) does not automatically disqualify them from hearing motions presented by the same parties [5] , in the same file, but on a different matter.

The April 30, and May 2, 2018 judgments were “interlocutory” judgments of the case-management sort and none of them decided in a final manner of the appellant’s rights (the April 30 judgment decided that the motion addressed to the Court by the amicus curiae was, in short, unnecessary at that stage, and the May 2 judgment referred the matter to the case management judge in criminal matters).

This cannot raise any reasonable apprehension of bias in a reasonable and practical person, who knows the judicial process and understands it, to quote from the Supreme Court’s case-law. [ 7 ] FOR THESE REASONS, I DISMISS the appellant’s verbal motion for recusal. MARIE-FRANCE BICH, J.A.