Her Majesty the Queen - v. -, 2018 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 013 Date: March 14, 2018 Information: 90151071 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rachelle Podolski Appearing: Stephen Kritzer For the Crown Scott Allen For the Accused JUDGMENT K. BAZIN , J [ 1 ] The issue to be decided is the Crown’s application that I recuse myself from the hearing of the trial in this matter as I had not accepted the defendant’s guilty plea.

The Crown argued that the law is such that when a judge does not accept a guilty plea put forward by an accused, whether that plea is put forward personally if unrepresented, or by counsel the judge is required to recuse themselves from the trial of the matter. The Crown argued the proposition that a judge is automatically disqualified from conducting a trial on a matter where they have not accepted a guilty plea from the accused.

[2] The Crown’s position is not one of disqualification on the basis of bias, but their position is that it is simply a matter of law that all judges who do not accept a guilty plea and enter a not guilty plea, are barred from being thejudge for the trial. [3] This issue arose after the Court advised Crown and defence counsel that they were not satisfied that the facts relayed by theCrown and accepted by defence did not reveal a defence to the accused. [4] The defence took no position in relation to the Crown’s application. [5] The Crown was offered the opportunity to have the issue argued on a later date, so that they could further prepare their argument and file case law to support their position.

However, the Crown declined and indicated thattheir position was simply that, as a matter of law, every judge that does not accept a guilty plea from an accused is barred fromconducting a trial in relation to the same matter. One would expect that such a proposition would be supported by case law. [6] The terms “recuse” and “disqualification” are often used interchangeably when referring to situations where a judge shouldnot hear a matter.

However, the two are distinctly different as explained in R v Quinn, 2006 BCCA 255 at para 44, 209 CCC (3d) 278. [44] The respondent submitted that the judge applied the correct test for recusal and identified all of the relevant concerns. I agreewith that submission, though I would prefer to treat the issue as one of disqualification. There is no “test” for recusal and judges oftenrecuse themselves from cases which they are not legally disqualified from hearing.

This tendency to err on the side of caution does notreflect the standard which must be met for disqualification, which is that of a reasonable apprehension of bias. [7] The Crown’s position is that every time a court exercises its discretion not to accept a guilty plea, the judge is disqualifiedfrom conducting a trial because they heard evidence and made a judgement as to the guilt of the person.

The argument is that, since thejudge did not accept the guilty plea, the judge has in effect decided on the guilt or innocence of the accused and it would be difficult forthe Crown to argue that a person is guilty in front of the same judge. [8] The inference from the Crown’s position is that the judge’s refusal to accept a guilty plea amounts to a finding of not guilty. [9] To be clear, the Crown did not argue that the judge needs to disqualify themselves based on the established law for disqualification of a judge, being the bias or the perception of bias test.

The Crown arguesthat it is a matter of automatic disqualification, or peremptory disqualification. [10] An allegation of bias or perceived bias is an allegation not to be made lightly as outlined in R v S.(R.D.), (SCC), [1997] 3 SCR 484, 118 CCC (3d) 353 [S.(R.D.)]: [113] Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that thethreshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question anelement of judicial integrity.

Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrityof the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds tomake such an allegation arise, counsel must be free to fearlessly raise such allegations.

Yet, this is a serious step that should not beundertaken lightly. [114] The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para.30 Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case. [11] In this matter, the Crown’s argument is based on the premise that the judge having heard

evidence and having made a decision not to accept the guilty plea, the judge has thereby made a determination as to the guilt orinnocence of the accused at that stage.

Having made this determination the judge is now automatically disqualified. [12] The Crown, is in effect, alleging institutional bias, and putting forth a new automatic or peremptory disqualification category without putting forward to the Court any authority to support such a proposition. [13] The test for disqualification was outlined by Justice Ottenbreit of the Saskatchewan Court of Appeal sitting ex officio, in R v Hahn, 2015 SKQB 88. [7] The test for disqualification as expressed in Wewaykum Indian Band v Canada, 2003 SCC 45 , [2003] 2 SCR 259, is asfollows: 60 In Canadian law, one standard has now emerged as the criterion for disqualification.

The criterion, as expressed by deGrandpré J. in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias: . . . 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. In the words of the Court of Appeal, that test is “what would an informed person,viewing the matter realistically and practically ̶ and having thought the matter through ̶ conclude.

Would he think that it is morelikely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [8] The most recent pronouncement on the principles surrounding recusal or disqualification by our Court of Appeal was in Aalbers vAalbers, 2013 SKCA 64, 417 Sask R 69 [Aalbers]: 74 On numerous occasions, the Supreme Court of Canada has adopted the test for a reasonable apprehension of bias establishedby de Grandpré J. in dissenting reasons in Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1S.C.R. 369 at pp. 394-95. See: R. v.

R.D.S., (SCC), [1997] 3 S.C.R. 484 at para. 31; R. v. Valente, (SCC), [1985] 2 S.C.R. 673 at para. 12 and Wewaykum at paras. 60 and 76. See also from this Court R. v. Dickhoff (1998), (SK CA), 172 Sask. R. 1 (Sask. C.A.) at para. 11. 75 The test is whether an informed person, viewing the matter realistically and practically ̶ and having thought the matterthrough ̶ would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decidefairly (Committee for Justice and Liberty at p. 394).

The grounds for an apprehension of bias must be “substantial” (Committee forJustice and Liberty at p. 395). A real likelihood or probability of bias must be demonstrated; a mere suspicion is not enough (R.D.S. atpara. 112).

The Supreme Court of Canada has also consistently rejected the notion that the reasonableness of an apprehension of biasdepends on the “very sensitive or scrupulous conscience” (Wewaykum, para. 76). [9] The threshold for finding reasonable apprehension of bias is high as was further explained in Aalbers: 76 As Cory J. states in R.D.S., one of the reasons why the threshold for a finding of a reasonable apprehension of bias is high isthat the courts recognize a presumption that judges will carry out their oath of office: 117 Courts have rightly recognized that there is a presumption that judges will carry out their oath of office.

See R. v. Smith &Whiteway Fisheries Ltd. (1994), 1994 NSCA 130 , (NS CA), 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. Thisis one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. ... [emphasis added] Cory J. went on to indicate in R.D.S. that “cogent evidence” is required to displace the presumption that judges will carry out their oathof office (at para. 117).

In the same decision, L’Heureux-Dubé and McLachlin JJ. (as the latter then was) spoke in terms of the“presumption of impartiality” which requires clear evidence that the judge in question had improperly used his or her perspective in thedecision-making process, before concluding that there exists a reasonable apprehension of bias in the conduct of a judge (at paras. 48-49). 77 When these principles are applied the outcome can vary depending on the context. As the court stated in Wewaykum, whetheran apprehension of bias exists is a “highly fact-specific” inquiry for which there are no shortcuts: 77 ...

As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, there are no"textbook" instances. Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past linkwith a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must beaddressed carefully in light of the entire context. There are no shortcuts. [emphasis added] The foregoing is the governing law.

[14] The Crown’s position is a misunderstanding of what is being decided at the plea stage. The determination is not one of guilt or innocence, but is one of the court accepting or rejecting a guilty plea. The criteria are set out in s. 606(1) of the Criminal Code. 606.

(1) An accused who is called on to plead guilty or not guilty, or the special pleas authorized by this Part and no others.

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. [15] The fundamental flaw in the Crown’s position is that it is an unsupported direct attack on the principle of the presumption of impartiality, which is at the core of our Canadian judicial system.

Without such a presumption thetrial process simply could not function. [16] The presumption of impartiality is seen at work in the entire Judicial process, where in an adversarial system the court is required to decide on multiple issues before a matter is resolved. This often commences with a showcause hearing, often referred to as the bail hearing, where a judge decides on the competing positions of the Crown and defence.

Thecourt hears detailed unsworn facts that the Crown purports to rely on; this procedure does not disqualify a judge from hearing a trial onthe matter or dealing with other issues as the matter proceeds to trial. [17] In direct contrast to the Crown’s position that a judge is disqualified from being the trial judge when they do not accept a guilty plea, this is the plea expungement procedure.

The process required when an accused, who hasplead guilty and has had their plea accepted by a judge after hearing the foundational facts put forward by the Crown, is that the judgewho received the plea is required to hear the expungement hearing. In this procedure, the judge is asked to expunge a plea that they hadaccepted. This procedure is outlined in R. v. Moise, 2011 SKQB 53, 368 Sask R 238 starting at paragraph 7, [7] I was the the judge that took the guilty pleas on October 8, 2008. The process involving the Crown’s application for dangerousoffender status for Mr.

Moise was conducted before me as was the expungement hearing. The hearing should be conducted before thejudge who accepted the guilty plea. In R. v. Savoie (1994), (NB CA), 145 N.B.R. (2d) 131, [1994] N.B.J. No. 78(QL), in dealing with the issue of whether another judge of the same court should hear the expungement application, the Court of Appealstated: 12 In my view, subject to s. 669.2, the judge who accepted the guilty plea is the judge who ought to have considered Mr. Savoie’smotion to change his plea.

Otherwise, the procedure would amount to another judge of the same court reviewing the adjudication of acolleague. This approach is consistent with the notion that a judge who hears evidence in a Criminal Code matter becomes seized with the matter. In R. v.

Cataract (1994), 1994 SKCA 4616 , (SK CA), 125 Sask R. 196, 35 C.R. (4th) 186, our Court ofAppeal dealt with this in the context of s. 669 and came to the conclusion that the judge who accepted the guilty plea, which in essence isa confession and therefore evidence, was found to have made an adjudication, acquired jurisdiction and became seized with the matter. [8] From a practical perspective, it also is appropriate for the judge receiving the guilty plea to conduct the expungement hearing.

That judge will obviously be familiar with the actual entry of the guilty plea, will be aware of nuances, if any, that are not properlyreflected in the transcript and depending on the outcome of the application, will either proceed to sentencing or refer the matter for a new

trial. [ 18 ] The voir dire process in trials, often referred to as “a trial within a trial”, is based on the principle of the presumption of impartiality. In this process, the court hears evidence - often from the accused - and makes a determination as to what evidence will be allowed into the trial. The judge as part of the voir dire process, will often make determinations of credibility and reliability as to the voir dire evidence, which may include evidence from the accused.

The court then is required to divest itself from the voir dire evidence if it is not allowed into the trial. [ 19 ] Similarly, the principle of the presumption of impartiality applies to the many decisions on the admissibility of evidence that the court is required to make over the course of a trial, and the procedures leading up to the trial. [ 20 ] In conclusion, there simply is no legal principle as alleged by the Crown that judges who have not accepted a guilty plea proffered by an accused, are peremptorily disqualified from hearing the trial of the matter.

As such the Crown’s application is denied. [ 21 ] It is a concern that the Crown would put forward such a position that is a challenge to the principle of impartiality without any case authority to support a position that would erode one of the fundamental aspects of the judicial process. Even when the Crown was offered time to ensure that they were prepared to present such an argument, they declined. [ 22 ] The Crown would be well be advised to heed the remarks of the Supreme Court in S.(R.D.), quoted previously at paragraph 10 in this decision.

The Court spoke to the need to not take an allegation of reasonable apprehension of bias lightly when made against a judge, but also stated that such an application calls into question the entire administration of justice. [ 23 ] The Crown in its application brought a direct challenge to the presumption of impartiality calling into question the entire administration of justice. Unfortunately, in this matter the Crown did take their application lightly. _____________________ K. Bazin, J .