2016 QCCQ 2182, 2016 QCCQ 2182

Patel 2016 QCCQ 2182 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-128272-157 DATE: 15 March 2016 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ In re Nisarg PATEL _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ I Allegation [ 1 ] The prosecution has presented a motion that I recuse myself in this matter on the ground that “a reasonable apprehension of bias has arisen, such that a right-minded and fully informed person would conclude that the judge is unable to act in an impartial manner , because of an absence of neutrality and a predisposition to defeat s. 737 C.C. by various means.” [1] This allegation is amplified in the motion. [2] [ 2 ] No evidence was called on the motion and no argument was presented other than the written assertions it contains.

The affiant claims to have personal knowledge of the facts asserted and the respondent has not cross-examined on the affidavit. I will not question this affirmation, although there would be ample justification for thorough cross-examination. [ 3 ] The criteria of bias or apprehended bias are well known and there is no need to restate them. [3] [ 4 ] I must assume that the allegation advanced in this motion reflects the considered position of the office of the Director of Criminal and Penal Prosecutions. The thrust of the allegation is clear and its seriousness is self-evident.

It is coincidentally an allegation of conduct that is inconsistent with the oath of office taken by a judge of the Cour du Québec. It is an allegation of conduct that is inconsistent with

article 5 of the Code de déontologie de la magistrature : “Le juge doit de façon manifeste être impartial et objectif.” [4] It is an allegation of judicial conduct that is inconsistent with the standard recognised in

section 11(

d) of the Charter. It is an allegation of conduct inconsistent with standards of impartiality long recognised at common law. It is an allegation of judicial conduct that impugns the integrity of a judge in the exercise of judicial functions. For these reasons the motion merits a response commensurate with its gravity. To ensure a measured response to this farrago of alleged malversation it is important to identify precisely what is at issue and what is not at issue.

II Question [ 5 ] At issue is a question I addressed to both the prosecution and the defence on 14 January 2016 after receiving from them a joint submission for an absolute discharge. I informed the parties that I would accept the joint submission but that I would not pronounce judgment until I had received representations on the following question: If the surcharge applies after any disposition upon a finding of guilt, including an absolute discharge, how can it apply “in addition to any other punishment” if an absolute discharge entails no punishment?

I will refer to this in these reasons as “the question.” [ 6 ] This is in part a question that arises from the plain words of section 737(1) of the Criminal Code :

An offender who is convicted or discharged under

section 730, of an offence under this Act or the Controlled Drugs and Substances Act , shall pay a victim surcharge, in addition to any other punishment that is imposed on the offender. [5] “The question” addressed to counsel on 14 January 2016 was put to both of them without prompting from the parties. It identifies a point of statutory

interpretation and a point of principle. First, there is a literal textual ambiguity: how can the surcharge apply if there is no “other punishment” in an absolute discharge? Is some other punishment a condition precedent to the application of the surcharge? Second, can the surcharge apply if the essence of an absolute discharge – its nature and purpose - is to relieve the offender of the consequences of a finding of guilt, including a conviction, a criminal record and any punishment?

III Answer [ 7 ] The motion advances two points to support an allegation of a reasonable apprehension of bias: That I continue to apply, even on my own, the decision in Cloud ; [6] That I continue to ask, in the absence of pleadings to date, repeatedly and even on my own, “the question.” If continuing to follow a decision that has not been reversed can suggest a reasonable apprehension of bias, the threshold for recusal to a reasonable and informed observer has been degraded to a shibboleth.

As to the second point, if repetition of a relevant and unanswered question is grounds for a reasonable apprehension of bias, the proponent seeks to censor the scope of juridical inquiry and debate. [ 8 ] The motion suggests that it is improper to ask “the question” because the surcharge applies, even where an absolute discharge is granted: it applies automatically by law and therefore the scope of its application is none of my business.

This suggestion presupposes answers to questions that have not been answered, in part because no judgment in Québec has answered “the question” I have raised since the amendment of

section 737. Here are a few: Is a finding of guilt a punishment? Does an absolute discharge include any element of punishment? Is the surcharge an element of a sentence or extraneous to the elements of a sentence? When Parliament uses a form of words – “in addition to any other punishment” – what is meant by “punishment”? “The question” is not concerned with the decision in Cloud . [ 9 ] I pause to note that the motion observes that counsel for Mr.

Patel is familiar with my previous rulings concerning the surcharge and that he is actively involved in appeals concerning “the circumventing of the surcharge.” [7] There is a reason for defence counsel’s recurring involvement in these matters. He acts for legal aid. He represents clients that have little money or no money at all. He acts for the poor.

It should be self-evident that such clients are differently situated from persons more fortunate. [ 10 ] Even if the surcharge is extraneous to the elements of a sentence, and even if it operates by law automatically upon any final disposition, there remain the textual ambiguity that it would operate in the absence of “any other punishment” and the conceptual incompatibility of a surcharge with the nature and purpose of an absolute discharge. That question of statutory

interpretation and principle is well within the scope of proper judicial discourse. It cannot be said that it is none of my business: it is my business. [ 11 ] The motion asserts that by posing “the question” I demonstrate a predisposition to circumvent the discharge. It asserts that I have already answered my own question. As I have said, there is yet no answer to my question and that is why I have asked it. But the motion goes further.

It purports to answer “the question” by saying that the unambiguous meaning of the relevant statutory language is that the surcharge applies when there is an absolute discharge. [8] This is pleading to “the question.” If that is the position that the petitioner wishes to take, plead it. To assert it, without more, is only begging “the question.” [ 12 ] As for the tone of the motion, I will leave that assessment to a reasonable and informed observer. I do not know whether, as drafted , it was approved by the office of the Director of Criminal and Penal Prosecutions.

If it was, this motion reflects a concern that requires systemic correction. If it was not, it reflects a concern that requires specific correction. [ 13 ] FOR THESE REASONS the motion is dismissed without costs. ____________________________________ PATRICK HEALY, J.C.Q. M e Dennis Galiatsatos For the prosecution – petitioner M e Yves Gratton For Mr. Patel