R. v. KRISKO, 2016 MBPC 10

CITATION: R. v. KRISKO , 2016 MBPC 10 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Joel Myskiw ) for the Crown ) and ) ) ) KRISKO, Kenneth Kevin ) Mark Wasyliw ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 8, 2016 WIEBE, P.J. [ 1 ] Defence has filed a motion that I recuse myself from hearing the above noted matter on the basis of a reasonable apprehension of bias. [ 2 ] By way of background, on October 20 2015, I was assigned to hear the trial of this matter. It is an impaired driving trial and defence counsel advised he intends to raise a charter issue, namely that his clients

section 10(

b) Charter rights were breached as Mr. Krisko was not given a right to counsel prior to complying with an ASD demand at a roadside check stop. Defence counsel pointed out I have dealt with this legal argument in the past. The case he refers to is R. v. Kozakevich 2014 MBPC 14 , where he was also defence counsel. Defence advised this is a novel legal issue. [ 3 ] Defence counsel advised the facts in the Krisko case are similar but not identical to the facts I dealt with in the Kozakevich case. In the Kozakevich , I dismissed the Charter application.

Defence counsel now takes the position on behalf of his client, there is a perception of bias as he argues I will just follow the legal reasoning in my earlier decision and his client will not have a fair trial. [ 4 ] The Crown’s position is I can hear the matter and there is no perception of bias. [ 5 ] Once defence counsel raised the issue of recusal on October 20, 2015, I asked the Crown for its position.

As the Crown was unaware the motion was going to be made, the Crown asked for a recess, which was granted and upon the re-commencement of the proceedings, the Crown advised it did not have any issue and the trial should proceed. [ 6 ] I invited defence counsel to make any further comment. Defence counsel restated his position I should recuse myself. [ 7 ] I then stated the following: The Court: All right, well Mr. Wasyliw, I’m going to say this, I don’t see a basis upon which I have to recuse myself.

Every day in courts across Manitoba, judges hear cases, particularly in the north, where they may see the same ….over and over and have to make decisions based on similar issues, time and time again….We have not heard the facts with respect to this case. I don’t know that the facts are similar.

There may be different facts…And as judges, we maintain impartiality in all matters that we hear….so what I am going to do is I’m going to give you an opportunity to provide me with case law that indicates that, in this particular circumstance…..I should not be hearing this matter…And I will take a look at that case law to see if you can convince me that I am not the appropriate judge to hear it.”

[8] Defence counsel in its legal brief set out the issue as follows: Whether there exists a reasonable apprehension of bias on the part of the trial judge which results in her recusal. [9] Defence counsel relies on two arguments to establish a reasonable apprehension of bias: 1. I advised counsel I already pre-judged the matter and came to the conclusion no bias exists prior to requesting a legal brief andargument from counsel; and 2. By hearing the immediate case, I would in effect be sitting on a review of, or in the position of an appeal court of my earlierdecision in Kozakevich.

THE LAW [10] Both counsel filed cases in support of their position. [11] The SCC has recently restated the test for a reasonable apprehension of bias in Yukon Francophone School Board #23 v.

YukonTerritory (Attorney General), 2015 SCC 25, where it said at paragraph 20 of its decision: “...what would an informed person, viewing the matter realistically and practically - and having thought the matter through conclude?Would he think it is more likely than not that (the decision maker) whether consciously or unconsciously, would not decide fairly” [12] This test, as the Court stated, has been applied and endorsed consistently for many years. [13] The Court went on to say: “In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence in the ability of ajudge to be genuinely open: . . . public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so withoutbias or prejudice and must be perceived to do so.

The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasisadded; paras. 57-58.] [24] Or, as Jeremy Webber observed, “impartiality is a cardinal virtue in a judge. For adjudication to be accepted, litigants must haveconfidence that the judge is not influenced by irrelevant considerations to favour one side or the other”: “The Limits to Judges’ FreeSpeech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr.

Justice Berger” (1984), 29 McGillL.J. 369, at p. 389. [25] Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. British Columbia Women’sHospital and Health Centre, 2013 SCC 30 , [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of biasrequires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation: seeArsenault-Cameron v.

Prince Edward Island, (SCC), [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per CoryJ. [26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherentlycontextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum,at para. 77; S. (R.D.), at para. 114, per Cory J.

As Cory J. observed in S. (R.D.): . . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates asound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overridingprinciple that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it mustbe considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]” [14] The R. v.

S. (RD) case was filed by the Crown. [15] In considering the above, I note the test to determine bias is contextual and fact specific. I also note as stated above, theconduct, that is the impugned conduct has to be found to be made on the basis of prejudice or generalizations. [16] Defence counsel filed case law where a finding of bias or an apprehension of bias was found where: • The trial judge was found to have made inappropriate comments during the trial about witnesses or the credibility of witnesses (R. v.

Hossu, 2002 Carswell, 2601); • A judge heard a trial of one of three accuseds in a robbery and during his address to the jury he made comments as to thecredibility of the victim and the guilt of the other accused. When the trial of one of the other accused came before him the question of areasonable apprehension of bias was raised because of these comments. (R. v. Downer, 1977 CarswellOnt 1115).

It was determined the trial judge who heard the trial of the first accused was prohibited fromhearing the new accused’s trial because his comments created a reasonable apprehension of bias. [17] Based on the Downer case, defence argues, the issue of bias arises, even if the trial involves different parties. Defence arguesthe reasoning in the Downer case is applicable to the case before me. He argues, even though Mr. Krisko and Mr. Kozakevich aredifferent accused, the factual and legal arguments are the same and the same principle applies.

I note in the Downer case, the secondtrial the judge would hear arose out of the same factual incident as the first trial. The judge made specific comments about the accused

who was to appear in the second trial at the first trial. That is not similar to the case before me. [ 18 ] With respect to my comments leading up to my requesting counsel file material, defence counsel argues, I have shown a pre disposition to rule against him on the recusal motion. He relies on the following cases to illustrate his point: • A trial judge was found to have made statements at a trial which a reasonable observer would have felt indicated the trial judge was resistant to the defence position that racial profiling can be exercised subconsciously, impairing the trial judge from being impartial R. v.

Brown , ( 2003 Carswell Ont 1312 ) • A judge made comments during a trial impugning the credibility of witnesses and he took an active role in eliciting evidence, but in a negative manner ( R. v. D’Souuza, 2004 Carswell Ont 2981 ) • The trial judge acting as the preliminary hearing judge did not admit certain statements of the accused and then agreed to have the preliminary hearing turned into a trial proper where he would rehear the application to admit the statements.

The Court found there would be a reasonable apprehension of bias where the judge might be perceived as not being able to approach the issue of admissibility of the accused’s statements with an open mind. The judge was prohibited from hearing the trial. ( R. v.

Nolin, 1982 Carswell Man 112 ). [ 19 ] In the Nolin case, the Court was clear, that its consideration of the issue was based on the same judge, in the same proceedings, involving the same parties, having made a determination on an important issue; as such the Court found the judge may not be able to approach the same issue with an open mind. [ 20 ] Defence counsel relies on the above cases to suggest the following principle: Where a trial judge expresses an opinion on an issue before the Court, prior to a determination of the issue, there is a perception of bias.

Defence counsel argues my comments in court indicated I had already decided the perception of bias issue. [ 21 ] Having considered the applicable legal principles and the argument and case law provided, I consider the issue before me. But before doing so I believe it is important to add to the above cases reference to the following case as it captures the important and fundamental principle of impartiality and a judge’s commitment to rendering justice fairly. [ 22 ] McKelvey, J. in R. v.

Trunzo , 2012 MBQB 211 , was a case where she was asked to recuse herself because her son was an articling student at the law firm representing the accused. She quoted Cory, J. in R. v. S. (RD) as follows at paragraph 18: “ 116 Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially.

To take that oath is the fulfillment of a life’s dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavor is high.” [ 23 ] I take my oath of office to render justice impartiality very seriously. [ 24 ] As McKelvey, J. pointed out in R. v.

Trunzo , the allegation of bias, real or perceived calls into question not only the personal integrity of the judge but the integrity of the entire administration of justice. Accordingly the threshold for perceived bias is high. While actual bias does not have to be demonstrated, there must be more than a bald assertion or a suspicion that bias exists. ANALYSIS [ 25 ] I have carefully considered the law as set out above as it applies to the circumstance before me. I have carefully considered the comments I made to counsel before asking them to file briefs and argument.

To be clear, I asked counsel to file briefs and argument so I could fully inform myself and consider the issues raised. [ 26 ] I did not, as defence counsel suggests, ask them to file legal briefs as a symbolic motion. [ 27 ] My comments to counsel, taken in context, reflect the fact that I have not heard the evidence, there is no determination as to how similar the facts are to the earlier case I decided.

I did note in my comments that as Provincial Court judges, particularly in northern communities, we may see the same accused more than once and we may decide the same or similar legal issues over and over again. This is a fact. It does not in my view indicate I have a predisposition to prejudge the matter before me. It reflects the reality of being a Provincial Court judge.

Further, in considering the cases filed by defence counsel, unlike those cases, I have not made comments about the accused, or witnesses or credibility. [ 28 ] In asking counsel to file material and an argument, I was asking the law be put before me so I can properly consider the issue in its legal context. I have considered the case law and the arguments put forward by both counsel.

Considering my comments as a whole, and the applicable legal principles, I do not consider the statements I made to be a predetermination of the allegation of bias motion. [ 29 ] With respect to the argument, there is a perception I am biased because of my decision in the Kozakevich case, what defence counsel is really arguing is; because I have rendered a decision based on the facts of the Kozakevich case and my

interpretation of the law as it applies to the facts in that case, I cannot hear this matter in an impartial manner. [ 30 ] To quote defence counsel in his brief: “It would be beyond obvious that there would exist a reasonable apprehension of bias under those circumstances. The (accused) Applicant would naturally presume that the Learned Trial Judge would be consistent in her ruling and therefore not impartial to the case. That the Learned trial Judge is on record having pre-judged the matter.” (Para 12 Applicants Brief)

[ 31 ] The fact that I have rendered a decision in the Kozakevich case, on the facts of that case and the law as I interpret it, does not in my mind demonstrate I have a predisposition to a particular result in this case. [ 32 ] If defence had been successful in its argument in the Kozakevich case, would I be faced with a situation where Crown counsel asks me to recuse myself anytime the novel legal argument is raised by defence counsel? If another judge had heard the Krisko matter and agreed with my legal reasoning, would that relive me of the perception of bias, or would both Judges be challenged on the basis of bias? Would it take 2, 3 or 4 judges to agree on the legal

interpretation to remove the perception of bias? [ 33 ] I see this situation as similar to the situation we had before the Provincial Court not long ago when the Court was dealing with the legal

interpretation of Section 719(3.1) of the Criminal Code , which provides that an accused can only be credited for pre sentence custody at rate of 1:1 when he or she is detained pursuant to s 524(8) of the Criminal Code . In applying the law in those cases, several judges of the Provincial Court had interpreted the legislation saying 1:5 time applied and several members of this Court decided 1:1 time applied. The Court of Appeal resolved this legal issue in R. v. Ibrahim, 2015 MBCA 62 and R. v.

Cook, 2015 MBCA 63 . [ 34 ] Prior to the Court of Appeals determination on the issue, if defence counsel’s argument here holds true, counsel on either side of the 1:5 or 1:1 issue, could have asked the Provincial Court judges to recuse themselves. Crown counsel would be asking all Provincial Court judges who interpreted the legislation saying 1:5 applied to recuse themselves as they had predetermined the issue. Defence counsel would ask all Provincial Court judges who interpreted the law to say 1:1 applied to recuse themselves on the same basis.

The system would be frozen. [ 35 ] In my view, the same issue arises here. Defence counsel is asking me to recuse myself because I have interpreted the law and applied to it to a set of facts, in a manner he disagrees with. Whether this is a novel legal argument or not, a legal

interpretation of the law ought not to result in an allegation of a reasonable apprehension of bias. Establishing such a principle would cripple the criminal justice system. This is not a case where I have made comments prejudging the accused, or witnesses. It is not a case where I have made an evidentiary ruling in a factual context, which I am asked to revisit. It is not a case where I am sitting on review of my own decision.

It is not a case, which to use the words of Cory, J., “ taken in context , truly demonstrates a sound basis for perceiving that a particular determination” has been made on the basis of prejudice or generalizations. It is a case where the law as I interpret it will have to be applied to the facts as found by the evidence. [ 36 ] Where a decision has been made on an

interpretation of the law, and counsel does not agree with that legal

interpretation, the proper procedure is to appeal the decision. It is not in my view appropriate to ask a judge to recuse themselves on the basis on an allegation of perceived bias. [ 37 ] In this case, I do not find an informed person, viewing the matter realistically and practically - and having thought the matter through would conclude it is more likely than not that I, whether consciously or unconsciously, would not decide fairly” [ 38 ] The motion for recusal is dismissed. __________________________________ WIEBE, P.J.