R. v. E., 2015 QCCQ 10143

R. c. Jarrah JL 3603 2015 QCCQ 10143 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL “Criminal and Penal Division” N° : 500-01-027073-094/500-01-027090-098/500-01-031362-095 500-01-031463-091/500-01-031464-099/500-01-079168-123 DATE : October 20, 2015 ___________________________________________________________________ BEFORE THE HONOURABLE CLAUDE LEBLOND, J.C.Q ___________________________________________________________________ THE QUEEN Prosecutor/ Respondent v.

FARHAD JARRAH Accused / Petitioner ___________________________________________________________________ JUDGMENT ON A MOTION TO OBTAIN THE RECUSAL OF THE PRESIDING JUDGE (Sections 81 to 84 of the Regulation of the Court of Québec) ___________________________________________________________________ [ 1 ] The accused is on sentence further to a verdict of guilty on 18 counts including harassment, uttering threats, assault and breach of conditions. [ 2 ] Except for a day at the outset of the trial, the accused was self-represented. [ 3 ] At the date set for the representations on sentence, the Petitioner is then represented by a lawyer who presents a motion to obtain the recusal of the presiding judge on account of an appearance of bias against the accused throughout the trial. [ 4 ] The Petitioner appealed the verdict.

Leave to appeal has been granted. Ground number 9.1

d) is worded as follows :

Malgré que l’appelant se représentait seul, le juge est intervenu à plusieurs reprises lors du contre-interrogatoire de l’appelant et de son frère, donnant l’impression d’aider la Couronne. L’honorable juge de première instance a formulé des commentaires préjudiciables quant à la crédibilité de l’appelant alors que la présentation de la preuve n’était pas complétée. Ce faisant, le juge a manqué à son devoir d’impartialité.

Ces erreurs judiciaires ont affecté l’équité du procès. [ 5 ] This ground of appeal and the motion for recusal are based on the same facts. [ 6 ] The Petitioner is therefore asking the Court to give an opinion on one of his ground of appeal. CASE LAW [ 7 ] The legal situation here is akin to a report made by a trial judge on a ground of appeal. In R. v. E. (A.W.) [1] , the Supreme

Court stated: The Trial Judge's Report It may be convenient to set out here the

section of the Criminal Code, R.S.C., 1985, c. C-46, providing for judge's reports.

Section 682. (1) is as follows: 682.

(1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial courtjudge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish itor him with a report on the case or on any matter relating to the case that is specified in the request. It can be seen that a report of a trial judge should only be made at the request of the Court of Appeal.

Such a request should inmy opinion be rarely made. […] As a general rule the trial judge's report introduces an element of unfairness into the appeal procedure. The trial judge is beingrequested to give his or her subjective view of what transpired. With the very best of intentions the trial judge may subconsciously beinfluenced to write a report which justifies decisions made and actions taken during the course of the trial.

It will be very difficult if notimpossible for counsel opposed to the view of events taken by the trial judge to argue against the judge's version. […] In thosecircumstances should the report of the trial judge requested by the Court of Appeal have an influence upon the decision?

To request the report, as a general rule, is to encourage a situation fraught with the possibilities of unfairness. […] (This Courtunderlines) [8] In his reasons dissenting in the result but not on the applicable principles, Chief Justice Lamer cautioned: The principle that a trial judge should not be permitted by virtue of a report on the case, to insert him or herself in the appellate arena, isarticulately set forth in R. v. Mathieu, (QC CA), [1967] 3 C.C.C. 237 (Que. Q.B.), at p. 243, per Casey J.: I cannot believe that this

section of the Code imposes on a trial Judge the duty or gives him the right to explain or justify, ex parte, hisdecision. I find it difficult to believe that this report which the Code appears to intend only for the Court of Appeal, should containanything more than the trial Judge's views on such things as the incidents of the trial or the credibility of the accused and of thewitnesses.

It is inconceivable that any Judge should have the right to plead before the Court of Appeal: and yet this is exactly whathappens every time a trial Judge undertakes to answer the grounds of appeal urged by the person whom he has convicted. (This Court underlines) ANALYSIS [9] There is no evidence that this motion is presented in bad faith. [10] R. v. E. (A.W.) was about a trial judge who wrote, “on his own initiative, a letter to the appeal panel expressing his reservationsabout the verdict.

He indicated that he would not have found the accused guilty on the evidence at trial as he was of the view that such averdict would have been unsafe.” [11] For this Court, to give reasons why the alleged interventions created or not an appearance of bias would be, at least, asinadequate as giving an opinion on the verdict rendered by a jury in R. v. E. (A.W.). [12] The Court considers that to grant or dismiss this motion would be equivalent to write a report to the Court of Appeal.

The Courtwould then “undertake to answer one of the grounds of appeal urged by the person whom he has convicted creating thereby a situationfraught with the possibilities of unfairness” to both parties. [13] On the other side, the Court cannot refuse to adjudicate on the motion and give reasons. [14]

Section 669.2 Cr. C. provides:

(1) Continuation of proceedings — Subject to this section, where an accused or a defendant is being tried by (

a) a judge or provincial court judge, (

b) a justice or other person who is, or is a member of, a

summary conviction court, or (

c) a court composed of a judge and jury, as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, theproceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who hasjurisdiction to try the accused or defendant.

(2) Where adjudication is made — Where a verdict was rendered by a jury or an adjudication was made by a judge, provincial courtjudge, justice or other person before whom the trial was commenced, the judge, provincial court judge, justice or other person beforewhom the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that isauthorized by law in the circumstances. […]

[ 15 ] In R. v. Beauchamp [2] , Justice Béliveau stated that

Section 669.2 Cr. C was not limited to permanent and/or physical incapacity and encompasses the recusal of the judge at the request of one of the parties or on his own initiative. The same may also be said for a “catch-22” situation like this one. [ 16 ] In the best interest of the administration of Justice, the Court declares, according to

Section 669.2 Cr. C., to be unable to continue through the sentencing process. CLAUDE LEBLOND, J.C.Q. Me Suzanne Nault For the Queen, Prosecutor / Respondent Me Michel Marchand Desrosiers, Joncas, Nouraie, Massicotte For the Accused / Petitioner Dates of hearing : September 21, 2015 and October 15, 2015